“Tattleware” or software that somehow tracks employees’ actions has seen a rise in popularity (thank you pandemic) and recently been in the news after an Alberta woman was fired after refusing to download an app that would allow her employer to tell when she was at work.
The app in question works somewhat like a virtual punch card. It records when the employee enters the defined area around the workplace and when the employee leaves. It does not track the employee’s specific movements. Other tracking software is perhaps more invasive, such as tracking software on employee computers that provides employers with information about websites visited, time spent on certain tasks, tracks keystrokes and mouse activity and even snaps automated screenshots of an employee’s screen.
Employers used to having eyes on their employees in in-person offices may see these virtual tracking methods as attractive alternatives to keeping tabs on their remote workforce. What should employers consider before rolling them out?
Is it necessary?
While not exactly a legal consideration, employers should consider the message tracking software will send to employees, namely “WE DON’T TRUST YOU!” While some suggest that employees may welcome the software – so that their bosses can see how hard they are working – this certainly will not be the reaction of all employees. Increased scrutiny is typically not something that employees welcome and this could have serious relationship impacts.
Employers should not begin using this type of software to monitor their employees without, at the very least, letting them know. While legal minds will differ on whether or not simply providing notice to employees is sufficient, and while we do not currently have any guidance from the courts on employee tracking, employers should not track employees without first telling them they are doing it.
Unless employers have already obtained employee consent for some sort of tracking or monitoring upon hire, they will want to consider whether they want to now obtain employee consent to start using tracking software. Not obtaining consent, and simply providing notice, could invite constructive dismissal claims in some instances.
Assuming that you’re ready to go ahead – via consent or notice – employers should provide employees with details regarding the collection, use and storage of the information. So, what exactly the software/app is, what it’s going to do, why it’s needed, how the data will be stored, who will have access to it, how long will it be kept, etc. Employers may not know the answers to all these questions so should be prepared to get details from the tracking software companies themselves.
With work from home likely here to stay for many industries, we expect that these issues will continue to be hot and perhaps even litigated in the future.
Original title of blog post: Should You Be Using Tattleware to Track Your Employees Working from Home?