Workplace monitoring technologies and employee time theft

As a result of the pandemic, many employees moved to hybrid or completely remote working arrangements. Employers are now faced with the challenge of monitoring a workforce without direct supervision. Two recent cases show how an employer can leverage technology to monitor employee productivity and how to respond to suspected time theft. Time theft occurs when employees are paid for time they did not work and is a serious form of misconduct. 

GPS tracking and time theft for field employees

During the pandemic, an Ontario employer assigned two-person work crews to individual work vehicles to limit contact between employees.¹ The employer expected each employee would drive independently to the assigned work site and complete the work together. 

The employer received a complaint that an employee was not showing up to his scheduled assignments. It investigated and concluded the employee was paid for more than 200 hours when he did not attend his assigned work site. The employer terminated him for cause and successfully defended a grievance filed by the employee’s union. The arbitrator found just cause for dismissal based on reliable evidence of time theft collected by the employer: 

• The employer had GPS installed in its vehicles, allowing it to review the current and historical location of each vehicle. The employer relied on the GPS data to show the employee was repeatedly paid for time when he was not at his assigned work site. 
• The employee had no reasonable explanation for his absence from work sites during paid working time. He argued he did not have enough work to fill his workday. Instead, the employee claimed he sent or answered work emails, reviewed company policies and completed online training, while waiting in parking lots or at home. The employer countered with scheduling evidence showing assigned work, and with computer time logs demonstrating the employee rarely sent work emails or accessed company policies. 

Monitoring software and time theft for employees working from home

In response to concerns about the productivity of an employee who worked from home, an employer in British Columbia scheduled weekly check-in meetings and installed time-tracking software on her laptop.² The employer later noticed the employee submitted time for files she had not worked on. The employer used the time-tracking data to check for discrepancies between reported work time and work product. After discovering there were 50 hours on the employee’s timesheets that she did not spend on work-related tasks, the employer terminated the employee for just cause, and she initiated a wrongful dismissal action. 

The employer successfully defended the wrongful dismissal action. The adjudicator found just cause for dismissal due to the evidence of time theft collected through computer monitoring software:

• The time-tracking software automatically collected data about the employee’s activities and the time spent on each activity, which revealed how much time she spent on work-related and personal activities. There was an obvious discrepancy between claimed working time and tracked working time.
• The employee argued the software would not reflect the time she spent working with printed materials. The employer relied on data that showed limited printing activity and that the employee did not upload her work onto the electronic system, which she would have had to do if she was working with hard copies.  
• The employer also relied on a video of a meeting where it showed the employee the software data and gave her a chance to provide an explanation. The employee admitted she claimed time for files she did not work on and recognized it was inappropriate.

Takeaways

Time theft is a real risk of remote work. A combination of monitoring technologies and workplace management practices can reduce that risk. Best practices include: 

• Implementing policies that clearly communicate employer expectations about working time for remote employees, including disciplinary consequences for time theft. Employers have the right to expect that employees devote their time and attention to work during working hours. 
• Implementing procedures for supervising remote employees, including regular check-in meetings and a practice of comparing employee work product against paid work time.
• Implementing technologies that monitor employee productivity, including GPS, time-tracking software and computer use monitoring software. 
• Before adopting monitoring technology, employers should consult with counsel regarding applicable privacy laws. Some jurisdictions have privacy legislation that limits the use of such technology, and unionized employees typically have greater privacy protections than non-unionized employees. Ontario employers must update their electronic monitoring policies to reflect new monitoring technology.
• If an employer suspects an employee has engaged in time theft, it should thoroughly investigate and preserve relevant evidence. Employers should give the employee an opportunity to respond or explain the evidence, before making any disciplinary decisions.