Employee Monitoring

Gowling WLG's Neena Gupta returns to Coffee ’n’ Law to discuss the complex topic of employee monitoring.
 
Neena and host Amy Davies explore what constitutes electronic monitoring in today's workplaces, from key fobs and GPS tracking to keystroke monitoring and workplace cameras. They also discuss employers' obligations to disclose these practices to employees.
 
The conversation covers audio recordings in the workplace, employee surveys, and AI-powered workplace tools, all areas where Human Resources professionals and employers need to stay informed as workplace laws continue to evolve alongside advances in technology and artificial intelligence.

Connect with Neena Gupta:
On LinkedIn: linkedin.com/in/neena-gupta-0107aa4
Email: neena.gupta@gowlingwlg.com
Visit Gowling WLG's website: www.gowlingwlg.com

Connect with Amy Davies:
On LinkedIn: linkedin.com/in/daviesamy
Email: amy@first30ready.com
Visit First30's website: www.first30ready.com

HR Law Canada
Stay up to date with employment law news by subscribing to HR Law Canada: www.hrlawcanada.com

This podcast is produced by Storyphora, www.storyphora.com, info@storyphora.com

#amydavies #neenagupta #coffeenlaw #employmentlaw #HRleaders #workplacelaw #employeemonitoring #privacy

Transcript

Neena Gupta 0:00

In Ontario, there is not yet any blanket prohibition against electronic monitoring. The Employment Standards Act requires disclosure, but does not prohibit electronic monitoring. The unions have been at the forefront. They have grieved what they considered to be excessive use of monitoring or breach of privacy. But in general, it's a bit of Wild West in Ontario. As long as you tell your employees that we're we reserve the right to do all of this.

Amy Davies 0:35

Workplace law is complex and constantly changing. It can be hard to keep up, and the risk of getting it wrong can be costly for businesses. The Coffee and Law Podcast is here to help HR professionals and employers stay informed. We'll cover what's changing and how to navigate real workplace situations and everyday people decisions. So grab your favorite warm drink and join us for engaging, practical, and educational conversations with top experts in workplace and employment law.

Brent Jensen 1:09

This podcast provides high-level general information. The perspectives shared by our guests are for educational purposes and do not constitute legal advice. If you have a specific question or concern, please consult a qualified lawyer.

Amy Davies 1:26

Hi everyone, it's Amy Davies, founder and CEO of First30, and also your Coffee in Law podcast host here. To remind you that First 30 offers career transition and outplacement services. So if you have terminations and layoffs coming up, this is a really good way to mitigate risk to your business and help your exiting employees recover from the job loss and get back to work. You can find out more information at www.first30ready.com forward slash outplacement, or you can reach out to me, Amy Amy, at first30ready.com. All of our programs include live coaching and a year of access. And in a tough job market, that can be very important. Now, back to our show. Hello everyone. Hope you're having a great day. We're back here at coffee and coffee. I shouldn't say coffee and law. Coffee to discuss an important topic, one that just keeps growing and growing and growing in importance, which is employee monitoring. But before, and of course I'm joined by Nina Gupta of Gowling WLG to help us navigate it all. But before we get started, first of all, thank you very much for tuning in. We would be so grateful if you could like, subscribe, do all the things, give us a five-star rating. I was saying four-star before Nina, because I didn't, I forgot that it was five stars on. So if our star count doesn't look the way it should, it's because people were listening to me and they shouldn't have been. I also want to thank HR Law Canada, our partner on this podcast, and of course our wonderful producers on the show, Story Fora. So with all of that, let's get started. And Nina, I can't, I have to thank you for your support of the podcast as well. Um, we, if if anyone's tuning in for the very first time, Nina and I told the story at the beginning, so I won't bore everyone with the details, but we had such great webinars on this subject that we said, oh my goodness, we just have to get started on a podcast because this is information that people need. Uh, it's so complicated. And I think this is a topic where it was already complicated and it just keeps getting more and more and more complicated. So we're going to help you sort it out today and hopefully you'll walk away with some uh insight into what to do in certain situations, what your obligation is as an HR leader or as an employer. Um, and of course, if you have any questions and need to reach out to either of us, I'm not the greatest person to ask about uh employment law questions, but Dina is, and all of her information is in the show notes. So if you are looking for legal support, some advice, some actual legal advice, which she is not giving on this show, but can give you uh if you have um a conversation with her, um, then look for her information. And you can always visit Gowling WLG's website. Uh, her information is all on there. I know that because I've searched it up many times, Nina. So, okay, so let's start talking about monitoring. What is it? What constitutes as monitoring from a legal perspective? There's just so many different ways uh in a scary way to monitor people these days.

Neena Gupta 4:59

So employee monitoring at the first instance is everything from people watching your employees, let's say on a workplace floor, when does my assistant come in? When does an articling student come in? That's a form of monitoring and it's common. But in a legal sense, new technologies such as keystroke monitoring, GPS monitoring, door swipes, um, when you log in, when you log out are all forms of electronic monitoring. And they can monitor what an employee is doing during working hours to a granular degree that is not possible with me just simply noticing, oh, so-and-so came by and said hello, he's in the office today. And the courts and the legislatures have been very concerned about the invasion, you know, like sort of that line between what is in the employer's legitimate interest to make sure that their workforce is doing the job that they're being paid for versus invasion of privacy. And I have to actually advise people that are unionized that the union jurisprudence is way more advanced. And the unions have been on the vanguard of essentially fighting for the privacy of union members. I would say long before the legislatures in Canada got in on the act. Also, different provinces have different privacy regimes. So you will see provinces like BC and Quebec, who I think are on the vanguard again, legislatively about privacy. And then you have other provinces that don't have any privacy uh legislation or very weak privacy legislation in the workplace and everything in between.

Amy Davies 6:52

And we talk a lot about the fact that once you hit that magic number of 25 employees, it's like there's a whole world of changes. You definitely need to call a lawyer as that's approaching. Uh, you need to call Nina. But is there different monitoring rules depending on the size of your organization, or is it more of a broad brush with monitoring?

Neena Gupta 7:16

Okay, so you remember that in Ontario, if your workplace is 25 plus in Ontario, you must have a written electronic monitoring policy that you distribute to your employees. Now, this doesn't prevent electronic monitoring, but it requires you to be fully candid about the types of electronic monitoring that are in the workplace, such as keystroke monitoring, card or key fob swipe monitoring. Maybe you are running a fleet and fleet GPS monitoring not only can find out where your fleet is at any one point in time, how fast it's being driven, or where it's being parked. So you need to tell employees, look, um, we know where you are. We know what you're doing with our trucks. We know if you're taking our trucks just to and from a job site, or if you're going off to Canada's wonderland for a, you know, you know, for a day. A leisure day. A leisure day. So we we can tell because we know where our trucks are. Um there are um spyware or or even not spyware that can tell exactly what keystrokes you're putting in. Uh our our firm knows when I um, you know, log into the system, whether I go into our document management system, theoretically could figure out which documents I've accessed, which documents I've saved, which documents I've amended, because that's just a feature of the document management system. I'm not suggesting my firm is doing anything nefarious. It's just they could do it if they wanted to do it, right? Figure out what I'm doing. So all of that is a form of surveillance or opens up the potential of surveillance that we didn't have 25 years ago. In addition, we now have cameras. You know, um, they're even built into your computer, right? And other security systems that people are imposing that might be of assistance.

Amy Davies 9:30

Now, okay, let's talk about cameras for a second, because this is one I'm curious about. I know when I go into certain places, like a Pilates studio, says, hello, you're on camera. And I'm like, okay, then I'm not gonna be doing anything that's interesting, but I like to know. It's nice to know. So when you're walking into your workplace, I mean, I've worked in factory environments too. So I worked at Wrigley and we had a factory on site, and so there were cameras, and you kind of accept that. But what is the obligation of the employer? And what can you actually do and not do with cameras? Because, well, I don't mind that camera watching me when I walk in the front door and walk down the hallway. I'm not sure that I want a camera fixed on me all day while I'm working at my desk.

Neena Gupta 10:14

So um there is a developing jurisprudence about that in addition to statutory protection. So obviously, you can have cameras or you can have cameras in common areas to protect equipment in parking lots and um and the surrounding of buildings for security and also to protect equipment. You can have um, you know, cameras around entry and exits. Um uh, but what I find that is problematic is change rooms, washrooms, areas where people have a reasonable expectation of privacy. So if you have a storeroom, for example, it might be all locked up, but where you keep expensive supplies. So think about a hospital that may have drugs in certain areas or expensive medical supplies, they can have cameras to prevent theft. The point is not so much that you can't survey uh have surveillance, is that you should tell people that they are under surveillance so they understand that they are being watched. Now, the interesting there's a psychology, if people know that they're being watched, they tend to be better citizens. There is an interesting um What a surprise. What a surprise. We're all better when we think mom and dad are watching us, right? So there you go. But you would probably not be permitted to have surveillance in private offices or in boardrooms because there isn't sort of an unwritten expectation of privacy. Most importantly in Ontario, you need to work that out in writing. And if you have a workplace that's over 25, make sure your employees understand what your policy is with respect to electronic surveillance. If you are unionized, often the issue of surveillance is actually a negotiated item in the collective bargaining agreement.

Amy Davies 12:10

Wow. And what about um what about audio surveillance? So video is one thing, but I know that I've worked in employ, and you can tell me if this is right or wrong. I won't say who the employer was, but I've had employers, I don't know how they told me whether it was in my contract or just said it, that I'm not allowed to record them. Because of course, in Ontario, you legally, I'm not saying in in work, you're gonna tell us that, but you can legally choose to record a conversation. So, Nina, if you and I are talking on the phone, I can record that conversation without your knowledge. And I can, I that's it's illegal for me to do. One person has to know the conversation is being recorded. Now, what how does this apply in workplaces or does it? Can can was that something I could have done actually? If I was, uh, would I have been legitimately able to do that?

Neena Gupta 13:04

So, in let's just back up a little bit. The general rule in Canada is under the criminal code. It is not a criminal code offense to record a conversation between two people where one person knows that they are being recorded. So if I wanted to, now there are some professions, including the legal profession in Ontario, where we are not allowed to record unless we tell the other side, just so you know. Okay, but let's move on. In a workplace, an employer can set their own terms and conditions of employment, and they can say, you are not allowed to record conversations without the consent of all parties. Now that becomes an employment rule. And if you breach the employment rule, you can be disciplined for it, like you can be disciplined for any other breach of an employment rule, up to and including termination. Now, uh, interestingly, we had a conversation uh last time about accommodation. There are times where people may have hearing disability or dishearing disabilities, or they may not speak English as well, or they have some other cognitive disability. And so they want to record the conversation, not to quote, use against you, but almost because they want to make sure they understood what your instructions were, and you may have to allow them to do that, even though you have a general no-record policy. Um, there have been cases, interesting cases, I think mostly in BC, where people have surreptitiously recorded their employer or conversation, and the court has said that act in itself is such an egregious breach of trust that that in and of itself is cause for termination. And the flip, there's a famous 2008 case in Ontario where an Ontario employer was worried about thefts. So they put some cameras up. And I think the court would have accepted that, but they actually put a camera in somebody's private office without telling them that there was a camera in their private office. And when the employee found out, she was devastated. And the employer's explanation was well, we thought the thieves were using her office to essentially count the loot. But the employee said, look, it was such an invasion of my privacy. Uh and she, you know, if they told me that they wanted to do that, that would have been one thing, but they did it surreptitiously, and I can't trust my employer anymore. Court actually said, yep, we get it, and upheld that as a form of constructive dismissal.

Amy Davies 15:47

Well, as a human being, you would kind of get that. It feels wrong. You know, I don't know that you need the law to tell you that that's wrong. It's wrong, right?

Neena Gupta 15:56

Yeah, I know. Sometimes, though, I find that the law does need it to be explicit. Uh, but uh, there's a quote in the case of there's an implied duty of good faith and and fair treatment in every employment agreement, and taping somebody or or, you know, monitoring somebody in their office without telling them what that you're gonna do that kind of crossed a line. And and the employer said we had no suspicion of this person being actually actively involved in the thefts. I don't know if I believe that or not, but that that's what they said. But it was still such a breach that they couldn't, you know, that she couldn't continue to work for them.

Amy Davies 16:34

Is there anything else we should talk about in terms of monitoring with audio or can um video before we move on to to talking about digital monitoring?

Neena Gupta 16:44

In general, when my clients ask me this, my general rule is just because you can do it doesn't mean you should do it. That's a, you know, I'm sure as a parent I've said that as well. So that's a good one to remember. And you have to sort of look at what is the harm that you are trying to prevent. So, you know, it makes sense to me, especially in areas where there is vandalism and there is it's fairly remote and the police don't come by, and then after hours there's not a lot of pedestrian traffic, that we would want to survey and have equipment in parking lots, entryways, you know, windows in order to deter and be force comes to wars, prosecute people who breach our security. That makes sense to me. But do you really need to do that in in the interior? Uh, it makes sense to have different levels of security for things that are very valuable. So people who have, you know, pharmacies, for example, or uh jewelers will have different surveillance requirements than a law firm. I may think that all my information is really, really valuable, but the odds of some street criminal coming and trying to steal it, it's pretty low, right? So just think about why you're doing it. And the security, the good security consultants are really good about sort of making you think about what do you actually need? And do I need all the bells and whistles that technology now gives me?

Amy Davies 18:19

Outplacement and career transition support make a real difference for employees experiencing terminations or layoffs. Offering these services also reduces legal and reputational risk for employers. All of First30's outplacement programs include access to a live coach along with one year of access to our career transition portal, job search resources, and much more. Programs start at $985 per participant. You can find information about our programs and pricing at first30ready.com forward slash outplacement. Or reach out to us anytime at info at first30ready.com. Okay, so I really want to move on to monitoring, electronic monitoring. I have many questions. I have not myself been in the workforce for about almost a decade now. I've been an entrepreneur. So I I'm not entirely caught up on everything, but I did hear something the other day about, you know, how you see these little Instagram videos with people just kicking their mouse every so often on their computer. So it let gives the impression that they're working when they're just getting ready for the Christmas holiday or something like that. Um, what's going on with electronic monitoring? How much can employers? I mean, I think they can pretty much monitor almost everything now when it comes to how you're using your devices to get a sense of, I'm thinking specifically of, you know, um, how much you're working and if you're working when you say you are working.

Neena Gupta 20:00

So, first of all, I want to be very clear that we're talking uh with a Canadian context in mind and frankly an Ontario focus. Many of our listeners may be working in organizations where they have a European or an American um, you know, component. And we need to know that privacy laws, digital monitoring laws, really differ from jurisdiction to jurisdiction. My turn. I know it's not an easy word. Yeah, my turn. And so we do need to sort of think about whether things like the European privacy laws might apply, whether or not there might be some American case law that applies. And even Quebec and BC have slightly different regimes than Ontario and some of the other provinces. But in general, in Ontario, there is not yet any blanket prohibition against electronic monitoring. The Employment Standards Act requires disclosure, but does not prohibit electronic monitoring. If you're in a unionized context, as I said earlier, the unions have been at the forefront. They have grieved what they considered to be excessive use of monitoring or breach of privacy. And there is a well-developed jurisprudence in the unionized context about that balance between privacy and monitoring, which I think can be extended to digital monitoring and has been extended to digital monitoring. But in general, it's a bit of Wild West in Ontario. As long as you tell as long as you tell your employees that we're we reserve the right to do all of this.

Amy Davies 21:43

What does that disclosure look like, though? So if I'm an employee, what what is my employer's obligation? What am I looking at? How am I reminded that I'm being, or am I even being reminded? Am I just told once in an email that goes out? Like what does it look like?

Neena Gupta 22:01

So the legislation requires that you have a policy that you post. So it can either be on your internet or you know send it to everybody or you hand deliver it to everybody that tells the employees what is the nature of the electronic monitoring that is going on in the workplace. Now, some employers are really um diligent about this. As you log in, part of the login script reminds the employees of their policies regarding the use of computer resources and the fact that that is monitored. Right? So there's a reminder every day as you log in. What right? But that is not legislatively required. That's a decision that has been made by that company's chief technology officer, that the best way to get compliance is to gently remind people every day that we can and do monitor. And I can tell you that that monitoring has revealed things like somebody's using a mouse jiggler, right? You were talking earlier on. Because although the mouse can jiggle and can defeat electronic monitoring that is designed to look at whether or not the mouse has moved, um, there's other forms of monitoring that can be much more detailed. See, what are you actually doing? Are you reading something on screen and then saving it an hour and a half later? Or are you just randomly monitoring, you know, jiggling your mouse? And there, you know, that's a different form of monitoring. Are you, you know, rapidly typing a draft response to a uh to an opposing counsel, or is this machine just randomly inputting, you know, random letters? And there are keystroke monitorings that can get pretty detailed and replicate what you've done. But the reminder just reminds people, hey, you may be in a remote workplace or you may be behind closed doors, but we can monitor. What the other thing that I really recommend is telling people that we do monitor what websites that people look at. So that if somebody is going to pornographic illegal websites, you know, okay, you know, you go for 10 minutes to check on your Amazon award. Fine, I'm not gonna get too fussed about it. Other people might that doesn't fuss me too much. But it um, but you know, if you're gonna use your device to visit, you know, illegal pornography, um, I I'm gonna get very upset about it. And so we remind people, and many of my workplaces remind people we monitor that.

Amy Davies 24:42

We actually, I used to work for a cable company, and we actually had people on the team who had to, who were responsible for our channels that were adult content. And they had to kind of keep track of what was on those channels. And so they had special permissions um for the content that was in their uh viewed in their office. It was kind of interesting when you think about it. Now, of course, this was all 100% legal, of course, content, but uh it was just a kind of a funny inside when you think of your colleagues, what they're doing all day.

Neena Gupta 25:20

Yeah, I um I've had cases where computer equipment belonging to a company has been used to send intimate pictures of uh, you know, coworkers who are having an affair back and forth, completely contrary to policy. And and uh this has become relevant in the context, or this became relevant in the context of a sexual harassment complaint and as well as a favoritism complaint. And so I sense she did have to get permission to uh look at just really bad images and just, you know, like why do people do that? Okay, that's a different conversation. But I remember I know, I know it is. That's a that we should save that for spill of the tea. Yeah, yeah. But I did because otherwise it would look like I'm using uh looking at, you know, wasting my time looking at digitally intimate images of other people, right? Like pretty gross stuff. So yes, sometimes, you know, your job is not the most pleasant and you have to look at certain things. And we have protocols as to when people will be allowed to access certain images, and it's not a no, it's just please tell us that you're doing this for work so that we know you're doing this for work.

Amy Davies 26:29

Here's maybe a more complex one. I I work in, I've I've run employee surveys um in the past, or I do run employee surveys, as a matter of fact, and pulse checks and things like that as part of my business. And this has not come up with my clients, but when I was doing this type of work in a workplace, it did come up. And I was adamant that the answer was no. You, as a person who runs the survey, there's an ID attached to every person that you survey. You can actually find out what an individual answered, but a company like First 30, for instance, has certain standards that we are, we adhere to, and we would never go back and tell someone a survey was confidential and then go to their employer and reveal the findings of that survey. So I don't know, is there rules around that, or is that sort of up to every supplier to kind of uh make up their own rules for their organization?

Neena Gupta 27:32

So there is no, as far as I know, there is no government regulation which says when you are doing workplace pulse surveys, or um we did a number of diversity, equity, and inclusion surveys, like, you know, what is your how do you self-identify then and do you feel you have equal opportunity, you know, do you feel, you know, like all of that pulse check? And there is no law, right? It that, you know, um, there's no regulation. Now, arguably, if a supplier says to a person that your survey results will not be individually disclosed, you're almost creating a contract. Please fill this survey, and we promise to keep it confidential, and we'll use it to improve the workplace. You then honestly respond to that survey on the trust. So there arguably could be some kind of common law, breach of contract, uh, you know, negligent misrepresentation. Again, going back to Law 101, which is not what we'd want to do today, argument, but in general, we rely on the survey in industry's ethics. And so when we did it, we said we are not going to reveal results where the you know group is less than 10. So, in other words, if you let's just take this, you know, we surveyed our entire office in Canada. We have offices from Montreal to Vancouver, but you could slice that data. You could do uh women who identify as a person of color, who are in Waterloo, who are partners. Well, when you do that, you bring it way below 10, right? And so then it wouldn't be hard to guess. Well, who are the two culprits, you know, who answered this way? And so we rely on the survey company's ethics to give candid responses.

Amy Davies 29:41

Well, we're very careful with that at first 30 for sure. And I know that a lot of uh most I don't know of a company that wouldn't be, but it's an interesting one because imagine you're in a position where your client is demanding something from you that, and I've never been in that position, but I know that I have been in that position as an employee in an organization being asked to ask the supplier for that information, which I refuse to do.

Neena Gupta 30:07

Because we did say it was confidential. And then you, you know what, you get that information and you might get some advantage. I don't know what that advantage is, but you know, that might help you at the but then you've ruined the survey process forever because there isn't a single person who won't find out about it. And the next time you want a, oh, let's get an engagement survey or let's get uh, you know, whatever, no one's gonna respond, honestly, because they know their answers can be attributed. And you want candid responses about whether or not you think senior management is doing a good job, whether it's about, you know, strategic planning, diversity and inclusion, dealing with workplace issues or not. And you need to know that because sometimes senior management is quite uh removed from the day-to-day frontline employees. And these surveys are so critical. So, rule of thumb, you know, yes, it would be nice to know who the culprits are who gave you guys a bad rating, but don't worry about it. Rely on good, good reputable suppliers who will not give you information below X number of persons. So any report that generates X less than X number of answers, they just won't give it. Because otherwise you could, you know, like the serve example I gave, and you know, partners, equity, person of color, and then you divide it in the advocacy section or the employment section, and all of a sudden you've got a group of one, right? So you know you know exactly who it is, right?

Amy Davies 31:40

Yeah. Well, uh, I do have a question, another question about technology and AI, because um, well, First30 has launched what we call an onboarding buddy, which helps your new hires get only access to the information that your company has and ask questions based on that information. So it's a very intelligent, uh, and I want to focus on intelligent chatbot because there's many chatbots out there. Some are better than others. This happens to be a really good one, in my humble opinion. But one of the things that we know is that we can actually see the questions that employees are asking. In aggregate, those are very helpful to our clients because they can say, okay, where are the gaps? Um, and that's just but one example. You could have so many questions being asked on um more sophisticated chatbots that you might have designed for your business or that you're using external partners for. And you can see it's like some imagine someone's searching up your entire question and QA on Chat GPT, right? Or Cloed. What are there any rules or regulations around what employers can look at uh when it comes to individual employees and the questions they're asking, company provided chat solutions?

Neena Gupta 32:58

I um it depends on the jurisdiction. I suspect the uh European data privacy regulations are way ahead of us and they would prevent, you know, they would have something to say about it. But in Ontario, if you are provincially regulated and you're not in a union, I'm not certain that there's any specific regulation that prohibits you from essentially saying, oh, you know what, print out all the questions that Nina asked when she was being onboarded. And but what it is required is Nina needs to be told that all those questions are available to the employer. So Nina can, you know, decide how to phrase her questions or not ask them at all. So you've got to decide what it is. Now, many, many uh suppliers have made a decision that they're not gonna provide that, right? So they're gonna use that in the aggregate again to say, you know, a lot of people have questions about this type of benefit. And our standard answers don't seem to be quite communicating certain things, and we should work on that. That's an aggregate answer. However, Nina thought your explanation of the benefits was idiotic, is probably not the information I as a new employee want my employer to know, right?

Amy Davies 34:18

Right, right. So is there anything else that uh employers should consider? I know the there's this is a huge topic, right? We could run 10 episodes on this, but is there anything pressing that you think employers should be aware of today when it comes to monitoring of any type with their employees?

Neena Gupta 34:37

So what I know we've been talking about protecting of privacy a lot, but I wanted to maybe talk about something that employees don't think about. Many employers have a bring your own device to work. So they'll give you a cell phone allowance and you use your own cell phone. They need to understand that personal cell phones are devices that are outside of the employer's remit. And that means that if they need those texts, if they need to find out who which phone calls an employee made, they don't have access to it. So that bringing your own device policy and wanting to control what is done on those devices really is at odds with each other. And the second thing is I believe that there will be more in uh more legislation and more regulation pending about uh the monitoring of digital data, electronic data, you know, GPS data, your phone data. And so, you know, HR really needs to almost do a little bit of a crash course on privacy law.

Amy Davies 35:44

Yes, that's a that's a very good suggestion. And and just update it every year because it's gonna be constantly changing, which is exactly what we say about employment law in general. Uh, and that's why we're here to help you. So thank you so much, Nina. Now we can't miss our spill the tea. It's a coffee and law podcast, so we don't need tea, we can just spill it all over the place. Okay. So uh what I have a little story I'm gonna tell too, but I want to hear yours first.

Neena Gupta 36:16

Oh, mine first. Okay, so when I was a baby lawyer, although I'm not sure that that's a politically correct phrase, when I was a young lawyer, I had a wrongful dismissal case on behalf of management. Um, a senior and well-respected VP of sales was found using their company equipment to surreptitiously record uh their um this man's stepdaughters in the bathroom naked. Okay? So using company equipment to record his stepdaughters naked in the bathroom. And he was using company equipment to do it. This was n this is in the infancy of electronic monitoring, and the only reason he was caught is everybody started complaining about how slow the computer system was. And could IT do a deep dive as to why it was so slow? And he was saving some of the um images on the compute uh company servers. Now, the company decided that that was a complete breach of their policies because company equipment was only supposed to be used for company policies. This was not like checking up your Amazon, you know, deliveries on your company. This was really serious. And um, and he was criminally charged. They reported him to the um uh police. The laptop was actually sequestered and taken because and they they actually had to work with the local police as to what do I do with all these pornographic images that are now on the company server, which we don't want, but even touching them might be a criminal code offense. Really freaked out our CTO, the CTO for obvious reasons. And I actually got the the guy who had the Hutzba to write a demand letter, get a lawyer to uh write a demand letter saying, well, this was really personal activity on off hours. And so it has nothing to do with his otherwise excellent record as a VP sales, and therefore you should pay my client like a year's severance, right? Well, I essentially told him to drop dead. Um, I don't know what happened. I don't remember. It's so such a long time ago. But that was an early form of electronic monitoring that wasn't even just done in the routine course, it was done to troubleshoot um the company's computer problems and they found this mess. So uh this is over 30 years ago. So some of the problems we're having today were already showing themselves 30 years ago. Um, and the number of people who use company resources, and I think I mentioned this earlier, to send intimate images to their paramours is really silly. Just don't do that.

Amy Davies 39:10

No, just don't do it. That it yeah, it is very strange that people cannot restrain themselves. That's crazy. All that, thank you for sharing that story. It's kind of sickening in a way, but it's really important to see where things were and where they're going. And on the where they're going, I was only gonna quickly say that I I asked my children's permission so that we can have a monitoring system between us on our phones. And if they had said no, I would have listened. But they were very happy to do it, which surprised me. So it just goes to show maybe what the next generation feels. And there's times where I don't want to always be following them and checking up. And I'll say, Oh, where are you? Because you know, it's like 10:30 on a Saturday night. I kind of want to know where my teenage daughter is. And she'll go, Mom, why don't you just look on the just look on find a friend and find me? Um, you don't need to text me. I mean, she says it politely, but I'm like, yeah, I was just trying to, you know, give you a little freedom that I'm not. And if she sees me coming to pick her up somewhere and I make a wrong turn, I don't check my phone while I'm driving. But when I pull over, I'll see her instead of saying, or she'll call me and say, Mom, you're going the wrong way. So, you know, they're just they're just using it to their advantage. But we, I know I didn't want my parents following me around when I was a teenager.

Neena Gupta 40:31

I absolutely did not want to. Um, and I was um, you know, I was telling you before we started that we have a car that's all electronically um, you know, connected. And neither my husband nor I are particularly, you know, curious. If we want to know where somebody is, we phone each other or text each other. But I realized about a month ago after owning the car for almost two years that I may not know where my husband is, but I know where the car is at all times because the app tracks that. So if he has that cover, I know where the car is.

Amy Davies 41:06

That is so funny. We don't even know how we're being tracked. Well, listen, Nina, thank you so much. If you need to get a hold of Nina or have uh an issue with your organization or want to stay ahead uh and avoid any issues, um, by all means, reach out to Nina. Her information is in the chat. You're most or sorry, in the chat. We're not on a webinar, we're on a podcast. It is. It's in the show notes, and you're welcome to reach out to me as well if you're interested in our services or you'd just like to connect on LinkedIn. Um, thanks once again to our producers, Storyfora, our partner HR Law Canada, and of course to you, Nina, and Gowling WLG. I hope everyone enjoys the rest of their day, and we will see you next time.

Neena Gupta 41:53

Thank you, Amy.