Employee monitoring goes to court, and we learn about “time theft”

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Jordan Heath Rawlings We’ve learned a lot of new terms over the past few years. Some of them are dubious at best and also probably totally unnecessary. Quiet quitting, for instance. And here is a new one for you time theft. It’s now got precedent in Canadian court in the eyes of employers, or at least in the case we’re going to discuss. Time theft is any time you’re on the clock but not actively working on your tasks, which means basically every single one of you listening to this is guilty of it at some point, and so am I. But of course, time theft wouldn’t even exist as a concept without employers now having the ability to track essentially every moment an employee is on the job using monitoring software. This began when everyone was working from home. But it’s here and it’s not going away. There is nothing stopping businesses from using this software to watch employees. And with the exception of one province, they’re not even required to let workers know they’re doing it. And then when and if things get messy, they can submit in court details of exactly what an employee was doing when, and they can claim their time air quotes around that was stolen. Now, I have a whole lot of questions about this process, but I want to end this with a bigger one. What exactly is time spent working? Is it actively performing tasks? Is it thinking about tasks and how you might perform them? Is it taking a break from thinking about a task in hopes of getting a new idea or perspective? In jobs that aren’t based on actual physical labor? What constitutes work? And how the heck can you monitor that? I’m Jordan Heath-Rawlings. This is The Big Story. Valerio De Stefano is the Canada Research Chair in Innovation, Law and Society at Osgoode Hall Law School at York University. He’s also the co-author of the 2022 book Your Boss is an Algorithm. Hey, Valerio.

Valerio De Stefano Hello.

Jordan Hello. Thank you for having me. You’re very welcome. Thanks for joining us. And maybe you could start by describing some of the programs we’re going to be discussing today that track employees who are working from home. What are they? What do they do?

Valerio De Stefano Sure.

Jordan So the programs vary immensely. Right?

Valerio De Stefano So a very basic program is just using the present status on Outlook, right. Whenever the flag is green or red or yellow, they may be they may be used as a signal that you are active or non active and thus working or not working. So this is the most basic thing. But we have much more invasive systems in place, such as systems that track the keystrokes that you give in a certain moment of time, but also using the mic or the camera of your laptop to track what you’re doing even without you knowing about it. In some cases, these systems always using the cameras can try and track your mental and emotional status. So, for instance, the camera can be linked to a program that tries and detects whether you are attentive or not, based on your high moments or facial expression or things like that. That normally tends to be extremely inaccurate as a way of detecting whether somebody is attentive or not. On top of that, and this is something that is related to the case, the BC case that we are going to be discussing, some programs tend to record video of your activity on your laptop. This is particularly problematic for laptops or any other device that can also be used for personal uses. Right. These programs allow your employer to have access to anything that you do and you browse on your computer, including Google search, including general browsing, and thus potentially giving your employer or manager access to very sensitive information that you may be living using your computer.

Jordan So this is what we are talking about. Let’s get to that BC case that you mentioned because that is sort of what our discussion today will hinge on. So maybe just brief us what happened.

Valerio De Stefano The case is about an accountant that was employed to work from home. And the case is quite specific because the accountant eventually admitted that she had completed some timesheet for work that she had basically not done. So she admitted to some sort of misconduct after the employer disputed some work entries on the basis of these videos recorded on their computer. Basically, the court stated that even if the employee did not understand how the tracking system worked, the tracking system was automatic and on the basis of the recording, it was clear that she had basically said she had completed some work that she actually had not completed. So this is what the case is about. A worker that has admitted of some wrongdoing completing some timesheets that she had not actually completed after the employer used a tracking system that shows videos of her activity on this laptop without she actually knowing what this tracking system was doing or how it worked.

Jordan So what did the court find in this case?

Valerio De Stefano Basically, the court called this a case of time test. It’s actually basically an issue of wrongful reporting, of a reporting that should not have been done, that was inaccurate or unfaithful. Basically an employee saying I have done this job, I’ve done this work without having done it. And this is what the court found to be sufficient to fire the person for cause without any notice.

Jordan Then is there an actual definition of what we’ve just called time theft? How do we define that?

Valerio De Stefano There is no definition and actually, I really hope it doesn’t catch on. It is a very worrying term. Time cannot be stolen. Time belongs to you. It doesn’t belong to your employer. What happened in this case is that somebody had said she had completed some work activities that she had not completed. So this is what I will focus on rather than these fake general terms that don’t make much sense.

Jordan Yeah, no, that’s totally fair.

Valerio De Stefano It’s one of those things that we hadn’t heard of until very recently and it seems to be proliferating. Yeah. So basically we know about wage theft. So in a number of cases, employers cheat on how much work people do and basically don’t pay them for the entire amount that they work, or they don’t pay over time when overtime is due. That is called wage theft. This time test is sort of seen as the counterpart of wage theft. But again, it is quite problematic because it almost assumes that time, even when it’s paid, belongs to your employer. Time is an essential and existential element of your life. That cannot be alienated, it cannot be given away, therefore it cannot be stolen. Again, we have to avoid that this general definition catches on. We should focus on work that has been reported and in some cases has not been completed in the way it has been reported. That’s what I would prefer using as a frame of reference.

Jordan So when we talk about these programs that employers have on employees laptops, and you walked us through the whole range of them, are there any rules that govern how employers use these programs? How many they can use? Are there limits? Do they have to tell employees if they are using them? We’ve heard a ton about these programs since the pandemic began. I want to know what’s stopping employers or what’s governing the use of them?

Valerio De Stefano So the rules vary dramatically if we are talking about a unionized versus a non unionized workplace. In a unionized workplace, most likely these programs should be either negotiated with the union or any way, even when they are implemented unilaterally, they should be used reasonably, meaning that the extent of privacy invasion should be somehow limited to a reasonable use. There is no such a rule in non unionized workplaces, which are the vast majority of workplaces in Canada. Right. That means that employers pretty much can do whatever they want according to existing standards. Now, in Ontario, the situation is a bit different because earlier in 2022, the province has passed a new legislation that requires employers that employ more than 25 people to inform their employees if electronic monitoring is in place, and now it is tracking people and for what purposes. So in Ontario, an employer with more than 25 persons should inform these people of what they are doing when basically they are monitoring their workforce. Other than that, however, there is no limitation on the use of this electronic monitoring system. So this contrasts with other systems, particularly in Europe, where excessive forms of surveillance and monitoring would not be allowed generally to employers at the moment, employers can do more or less whatever they want. Even if we must say that there could be some general limitation that stem out of, for instance, nondiscrimination regulation or even some form of privacy protection that could be in place. But for the moment, all this is basically untested before the course. The first judgment that we know of that specifically dealt with this issue is this BC decision. And so we’ll probably see more of that in the future.

Jordan What kind of precedent could this BC decision set? And are people who watch this stuff concerned? Are you concerned about it?

Valerio De Stefano Yeah. So I am concerned both about this precedent from BC and in general about the use of these systems in general. The BC case is a bit too fast in saying that when you don’t understand our tracking system work, you should still be accountable on the basis of the time that the system doesn’t count as work. These systems as we know them, in many cases, don’t recognize as work some essential elements of our jobs. Our jobs are never limited to our job description in practice. We all do a lot of things that don’t correspond to what the contract says. We mentor people, we talk with them, we read print outs, we do research, we think about our work, and the systems don’t track any of that. And therefore, basically, whenever they track a very limited set of what we do and count only that as work, we get short changed. If the only time that my employer was counting as working time was the time I spent on my laptop, they will count maybe 20% of what I do that is related to my job as a university professor. And that will be extremely problematic not only for academics, but for anyone that does jobs using their computers. This is what concerns me. The court in BC doesn’t really take all this complexity into account and just says, you have reported some time, spending some time on these files, and we don’t recognize this time as well, therefore you cheated, therefore you get to be sanctioned. Maybe this was the case in this particular factual circumstances, but I really hope it doesn’t catch on as a general practice in which whenever a system doesn’t recognize some work that we are doing as work, we are soon to be cheating and we have to justify ourselves. This will disrupt immensely our workplace’s work and will give too much opportunities for abuses in the ends of management. I’m glad you took it there, because my next question was going to be exactly that. There’s no set way to define what qualifies as working and not working.

Valerio De Stefano So for myself, we have to do five of these shows a week. We need lots of story ideas. I spent so much time on my company laptop just farting around the Internet looking for interesting things and like random stuff that could turn out to be something that might not that might be amusing or sad or whatever. It definitely would not look like work to anybody who wanted to challenge it because only rarely does something actually result from it. But I couldn’t do my job without it. And I guess what I’m concerned about is not whether or not it counts as work because I know it does and I think the people who employ me do. But if somebody wanted to make an official case that I was not working, that stuff is definitely not like written in a contract anywhere is what I’m supposed to do. And I bet you many peoples is exactly the same.

Jordan Absolutely right. And this is actually how the system works. Employment contracts are by definition incomplete. They are filled by the parties. Also through the use of managerial prerogatives and powers day by day, every day your employer can ask you to do something in a very general and broad job description. Now, if the idea that a certain work task is the only thing you have to do on your job and this is the only outcome on which you are evaluated and only the time that you spend doing that very narrow task is counted as work, all our work societies couldn’t work like that. Our contracts are there for an unspecified amount of time and they are by definition incomplete. They are left basically to the goodwill of the parties to feel them fairly. Now, a software cannot do that. A software is not conceived to understand gray zones. And in most of the time, especially in the modern workplaces, we do a ton of working activities even when we are not at our desk. We think about what we do when we go to the grocery shop. We may answer to an email in the weekend. We can think of our next class or our next podcast at times that are completely unrelated to the normal working hours. If we didn’t do that, we couldn’t do our jobs. Still, we risked that. All these activities that are essential to our work and without which our businesses could not operate are counted as nonworking and we are basically defined as cheaters on our working time because the software doesn’t understand what we are doing. These software are extremely stupid. In most of the cases they cannot take into account a very complex reality such as work. So just to play devil’s advocate, because I’m not saying that I support employers being able to just use this stuff on their employees, but from their perspective they used to have them in the office, now they’re at home.

Jordan Don’t they have the right to know what their employee is doing when they’re working from home the same way they would if that employee was in the office and they could simply walk over and look at what they were up to?

Valerio De Stefano The point is, even if you check on my desk what I’m doing, you can talk to me, but you cannot go and browse my previous activity on the computer. This is the difference between this kind of surveillance and the normal general monitoring that is allowable in workplaces. This surveillance is relentless. It’s second by second, and it assumes that for whatever hour we spend working, every single second is devoted to that. This is completely unrealistic. It has never been the case, especially in white collar occupation, that somebody doesn’t get distracted or is lost in a train of thought while doing the work. It’s completely unhuman to think otherwise. Now, when it comes to remote work, of course there is a genuine procupation that some people may not work while they are reporting they’re working. But this can be solved by giving people outputs, realistic outputs to pursue rather than focusing on the process. Focusing on the process is a very 20th century idea of thinking about work. Most of us now have to produce things and show that we have completed tasks and outputs. This can be done without this kind of tracking and monitoring. Surveillance. The idea that you can substitute a software for a manager is completely unrealistic. Managers are there for a reason to understand whether a certain activity is productive or not in ways that software cannot do, because they don’t understand the grade zones. This is a tangentially related question maybe, but do we know by now if employees who are working from home are more or less productive than those that are in the office, we should have lots of data. By this point, there is no final evidence. But what we know is that they are definitely not less productive than people that work from the office. On top of that, and this is something that speaks more broadly to what we should do about remote work in our societies, rather than leaving the decision just to management. Remote work is good because it saves a lot of commuting time, it’s good for the environment, it allows a better worklife balance, it is generally more efficient for our societies. So even if the productivity raise was not significant, it is not a reason to abandon it or basically not to adopt policy that could foster human and realistic and sustainable way of doing remote work.

Jordan That allows for workers to be accountable to their output without being dehumanized by being tracked all of the time while they are not at their desk. So what comes next on this? You mentioned Ontario has set some rules around it. Are other provinces looking at it? Is the federal government looking at it? What will you be watching for in this sector in the coming year?

Valerio De Stefano So employment standards are basically provincial. The federal legislation basically regulates some key sectors such as broadcasting or banking, but most of employment standards are provincial. The federal government, as far as I know, as a package on artificial intelligence in society more and large, that would mimic what Ontario has done in their legislation. Basically, an employer should inform workers that some monitoring system are in place, but not much more protection will be afforded to workers. In my opinion, this is far too limited as a protection. We know that this system can be extremely invasive. We also know that in some cases, they can also be discriminatory because they don’t account for nonstandard performance people with disabilities, but also people that don’t correspond to the general benchmark that the software assumes to be a worker. And so, even if the discussion should be provincial or federal, I think it’s time for a much broad based discussion in our society to understand what work is, what work for mom is, and what should be allowed in. Terms of monitoring without outsourcing this decision, only to the producers or developers of the software or to the management that often leases or buys the software without even understanding how invasive can they be?

Jordan Valerio, thank you so much for this. I’ve learned a lot about this topic, and now I’m possibly even more concerned than before.

Valerio De Stefano I’m sorry about that. But thank you so much for having me.

Jordan Valerio DeStefano Canada, research Chair in Innovation, Law and Society at Osgood Hall Law School. That was the big story. Like I said, half my job is literally spent tooling around looking for these stories, reading ones that never turn into episodes. And if somebody monitored that, I would probably be in trouble. That’s why I need you to help us send us some story ideas. We’ve gotten some great ones over the past few weeks, and we’re looking for more. You can send them to us on Twitter at The Big Story. FPN. You can of course, email hello at the bigstorypodcast CA, and you can call us or 416-935-5935 and leave us a message with your questions. The Big Story is available in every single podcast player and on every smart speaker. You just need to ask your smart speaker to play The Big Story podcast. Thanks for listening. I’m Jordan Heath-Rawlings. We’ll talk tomorrow.