PwC plans to track employees' location while at work. Is this practice legal in Canada?

Ana Aresta works from her home in Delta, B.C. on June 20, 2013. (Jonathan Hayward / The Canadian Press)

The COVID-19 pandemic shook up everyday life in many ways, including making work from home more common.

As the COVID threat has receded from its pandemic peak, life has largely returned to normal around the world, including in Canada.

PricewaterhouseCoopers (PwC) is one of the many employers that are moving towards getting staff to spend more time in the office.

After the global accounting giant recently announced plans to enforce its back-to-office policy by tracking employees in the U.K., one employment lawyer explains the situation with electronic monitoring in Canada.

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The practice has been legal in Canada for many years and has expanded with the evolution of technology and post-pandemic workplace practices, said Stephen Gillman, an employment lawyer and partner with Levitt LLP in Toronto.

"It's never been illegal to track employees, especially in the workplace," Gillman said in a video interview with CTVNews.ca on Tuesday. "I think what's changed since ... is the scope and the way in which employees are now being tracked in the workplace."

Electronic monitoring is common in logistics industries such as trucking, and customer service, and today the practice is expanding to more workplaces, he said.

"The law does permit tracking so long as it's reasonably connected to the job being done."

Some parts of the country have laws around electronic monitoring, he said. For instance, Ontario updated its Employment Standards Act in 2022 to allow the practice for companies with at least 25 employees, with some caveats.

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Employers have to be transparent and inform workers how, when and why they're being monitored, Gillman said.

"So if an employee is working from home, it wouldn't be fair to monitor them as they do their laundry, but you may monitor how many keystrokes they're making, who they're calling, when they're logging in and out for breaks," he said. "You can't simply just say we're going to put an ankle bracelet on all our employees. There's obviously laws that protect employee privacy and balance that against the interests of an employer."

Electronic tracking, if it exists, also must be done during the workday.

"You couldn't install a tracking device on an employee's phone and expect that that would be fine outside of working hours," Gillman added. "However, within working hours, these sorts of things are permitted so long as they're rationally connected to the purpose of why it's being done. You can't just do it because you want to know where your employees are at all times, it's got to be connected to the job function."

Enforcing return-to-work policy

While electronic monitoring of employees is useful for tracking remote workers and productivity, another employment lawyer questions whether it’s the best way to enforce return-to-work policies.

“I think PricewaterhouseCoopers trying to enforce a return-to-work policy ... is like a school monitoring attendance using surveillance cameras,” Alex Lucifero, partner at Samfiru Tumarkin LLP in Ottawa, said in a video interview with CTVNews.ca. “I think it's simply the wrong tool for the job. A return-to-work policy is one thing: electronic monitoring of employees is another. Those should be two clearly separate policies.”

Lucifero says he believes mixing the two issues in one policy would be “inefficient.”

“I think the answer is somehow incentivizing these employees to return back to the office, and to a degree, simply enforcing those rules and forcing the return-to-office policy through other disciplinary measures,” he said.

Samfiru Tumarkin has seen a rise in cases involving employee monitoring, which are often settled out of court, Lucifero said.

“That kind of data collection by employers have been used against employees to their detriment,” he said. “The most common example would be in terminating an employee's employment because of what they might have done on their personal time or during lunch hour or break time. These issues are becoming more and more prevalent as the technology advances and as employers become more emboldened to use that kind of data in judging performance and measuring performance.”

In cases of privacy breach, employees can obtain compensation in addition to severance and other damages if they are fired, he said.

PwC's new policy

Some like Lucifero may question the effectiveness of tracking employees to enforce the return to work, but PwC justified the move by saying in a memo that it was necessary to formalize and emphasize its "approach to working together in person.”

PwC informed its 26,000 U.K. staff in early September that it will start tracking their location while working starting Jan. 1.

The measure was announced as PwC will also require staff to spend at least three days a week, or 60 per cent of their time, in the office or with clients. The previous guidance was two or three days each week.

PwC said it will start sharing individual working location data with employees each month just like it does with hours worked and other data. "This will help to ensure that the new policy is being fairly and consistently applied across our business," it said.

With files from CNN