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Enforcing work standards in the digital era

November 2, 2020
By John Hyde

EDITOR’S NOTE: ‘Grey Zone: Not all employment law is black and white’ is a new weekly series, in partnership with John Hyde of Hyde HR Law in Toronto. This series will take a deeper look at issues in which senior workplace leaders and HR professionals need to consider legal implications.

For as long as working remotely has been possible, managers have been suspicious of employee productivity from home.

There has always been an unproven correlation between the quality and quantity of work done with a worker’s physical presence in an office.

Without the watchful eye of the boss, can workers really be relied upon? The issue isn’t black or white.


Our understanding of the benefits of work from home has developed significantly over the past 25 years.

Recent studies have shown that working from home can improve productivity and increase employee satisfaction, while decreasing employer costs. However, the effects are not universally positive.

Where employers do begin to experience productivity issues, it can be more difficult than ever to solve the problem — especially when workers are not physically present in the workplace.

There are several techniques employers can use to monitor and improve productivity from home, but each comes with its own practical and legal perils.

Setting uniform performance standards

It can be simple and effective — a salesperson must complete X calls per day; a technician must complete Y work tickets per day; a customer support person must spend Z minutes on the phone per week.

For jobs where performance is closely tied to basic statistics, these standards can be effective.

However, uniform performance standards are tricky when it comes to the law. Changes in performance standards which may cause sudden or significant upward adjustments for the affected employee(s), can lead to claims of constructive dismissal.

It is also risky to give these standards any “teeth” — disciplining employees for failing to meet uniform performance standards can easily violate human rights legislation, if a protected characteristic (such as a disability) prohibits the employees from meeting the standard.

While there is nothing illegal about adopting uniform performance standards, the implementation and enforcement of these policies requires a case-by-case consideration of the legal principles at play.

Digital activity monitoring

Monitoring an employee’s computer activity, such as their application use, web activity and idle time, can provide an accurate representation of how the employee is spending their time and, depending on the type of monitoring, precisely what the employee is doing. Great, right?

More often than not, employers have taken a “no-holds-barred” approach to digital monitoring.

While this approach can be effective, it can land employers in legal trouble.

Although the case law on this subject is still developing (particularly in the workplace), Ontario courts have confirmed that a tort (a civil wrong, whether intentional or accidental, from which injury occurs to another) for breach of privacy exists where, for instance, one party gains unauthorized access to another’s banking information.

We have seen cases where, as an example, an employer intercepted e-mails from an employee’s personal e-mail account, tracked the employee’s location data both during and outside of works hours, and covertly monitored the employee’s computer screen in real time.

Each of these activities could expose an employer to significant liability, including claims for constructive dismissal and damages for bad faith.

Employers are better off taking a more targeted approach to digital monitoring, one that is fit for the specific circumstances and takes employees’ reasonable expectations of privacy into consideration.

Maintain the personal touch

Often, the personal approach is the best approach.

Regular meetings and updates with managers, whether by Zoom or by telephone, is still the most reliable and widely used method of performance monitoring and coaching — even for employees working from home.

Criticism is difficult for all of us. When it comes to performance coaching, hearing and seeing the other person is crucial.

E-mail communication has significant drawbacks that employers often fail to consider. In fact, studies have shown that people tend to interpret positive e-mail messages as more neutral than the sender intended, and neutral ones as more negative.

Time and again, we see an over-reliance on written communication leading to friction between employees and management, which breeds workplace conflict.

We strongly encourage all managers to take the time to speak to employees — even briefly — on a daily basis. It is a crucial bit of workplace maintenance that pays off in the long run.

As work from home continues to increase, more employers may find themselves losing touch with the day-to-day activities of their employees.

The solution for this problem varies from case to case, however, the best approach to performance management is a balanced one that involves objective evaluation while maintaining and strengthening personal relationships between employees and managers.

John Hyde advises management on all aspects of employment and labour law, including representation before administrative tribunals, collective agreement negotiation, arbitrations, wrongful dismissal defence and human rights.


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