ACADEMIA Letters Working from Home: Privacy Concerns arise during COVID-19 Brianna Bedran, Antarctic Institute of Canada Peter Anto Johnson, Antarctic Institute of Canada John Christy Johnson, Antarctic Institute of Canada Kian Isaac, Antarctic Institute of Canada Austin Mardon, Antarctic Institute of Canada Working during COVID-19 is dangerous work already; however, additional safety concerns are to be evaluated even when it comes to those working from home. Working from home is undermining the trust between workers and their employers, and this article will demonstrate how employers’ displaced confidence in their employees can lead to privacy invasions. Additionally, this article will explore our rights that can counter these invasions of privacy. The main reason for this new mistrust is employers’ idea of time theft that may arise while working from home. Time theft includes exploring the internet or partaking in other personal activities during work hours, while deceiving the employer to think the employee is actually working (Huges, 2020). Time theft is suggested to be on the rise, as legal experts are referring to this as an increasing and “insidious trend” (Hughes, 2020) for employees to get away with doing other activities during work time. In response to time theft, employers have been open to the idea of monitoring softwares to combat this work misconduct. Less invasive steps to handle time theft, such as emphasizing company policies and stringent scheduling can be implemented by employers, however since the pandemic began, a variety of time theft prevention measures violate employees’ privacy expectations. Some of these methods include installing softwares that can take on various invasive forms of monitoring computer, email, and telephone usage to help determine when employees are actively working and when they are not (Leduc, et al., 2020). These methods have also been referred Academia Letters, August 2021 ©2021 by the authors — Open Access — Distributed under CC BY 4.0 Corresponding Author: Brianna Bedran, bedranb@mcmaster.ca Citation: Bedran, B., Johnson, P.A., Johnson, J.C., Isaac, K., Mardon, A. (2021). Working from Home: Privacy Concerns arise during COVID-19. Academia Letters, Article 2633. https://doi.org/10.20935/AL2633. 1 to as “tattleware,” and the number of companies that use this “tattleware” has increased from 10 percent pre-COVID to 30 percent (Hymen, 2021). Additionally, Out of about 100 clients these companies serve (employers looking to monitor workers at home), about half have asked about this software since the pandemic started (Slaughter, 2020). There are boundaries to the use of these softwares, however. The employer must demonstrate a reasonable need to monitor the employee’s computer, as clarified in the four-stage tests of PIPEDA and R v Cole. Despite the boundaries of monitoring, the main issue surrounding the breach of privacy from working at home during the pandemic is the lack of up-to-date laws and regulations that can handle this unforeseen situation. A patchwork of provincial and federal laws applies to some types of employee personal and personal health information, and a significant gap exists in the privacy interests of employees concerning their general use of employer equipment, e-mails, or other forms of digital communication, storage, and content. This is also partly due to the recent developments in technology and the outdated laws not addressing these new softwares and monitoring technologies. As a result, for R v Cole (2012) SCC 52, many employees privacy expectations would depend on the “totality of the circumstances,” including: 1. an examination of the subject matter; 2. a determination of the direct interest in the subject matter; 3. whether there was a subjective expectation of privacy in the subject matter, and 4) whether the subjective expectation of privacy was reasonable. For federal workers, they can rely on the protections of PIPEDA, which is another fourstage test addressing similar questions: 1. Is the measure demonstrably necessary to meet a specific need? 2. Is it likely to be effective in meeting that need? 3. Is the loss of privacy proportional to the benefit gained? 4. Finally, is there a less privacy-invasive way of achieving the same end? COVID privacy rights will still be determined using the principles that have been broadly described here, despite their outdated methods (Henriquez, 2020). This poses a problem for vulnerable workers, such as those in a non-unionized environment. There is a general lack of Academia Letters, August 2021 ©2021 by the authors — Open Access — Distributed under CC BY 4.0 Corresponding Author: Brianna Bedran, bedranb@mcmaster.ca Citation: Bedran, B., Johnson, P.A., Johnson, J.C., Isaac, K., Mardon, A. (2021). Working from Home: Privacy Concerns arise during COVID-19. Academia Letters, Article 2633. https://doi.org/10.20935/AL2633. 2 legal precedent surrounding working from home and privacy issues for those employees; while unionized, and federal employees can take comfort in knowing a search must be reasonable, to begin with, the non-unionized employee will have their rights determined by the “totality of the circumstances” described in R v Cole. References Henriquez, R. (2020). Privacy in the Time of COVID: Employee Privacy Rights when Working from Home. McMahon Molyneaux Henriquez: Labour & Employment Lawyers. https://mmhlabourlaw.ca/privacy-in-the-time-of-covid-employee-privacy-rights-when- workingfrom-home/ Hughes, T. (2020). Time theft? These Canadian workers are more concerned with pandemic burnout. The Pigeon. https://the-pigeon.ca/2020/11/20/time-theft-covid/ Hyman, J. (2020). Are you monitoring your remote employees with ‘tattleware’? Workforce.com. https://www.workforce.com/news/tattleware Leduc, D., et al. (2020). Keeping track of employees from a distance: Monitoring technologies and related legal considerations for teleworking. https://www.nortonrosefulbright. com/en-ca/knowledge/publications/77b629db/keeping-track-of-employees-from-a-distancemonitoring-technologies-and-related-legal-considerations Office of the Privacy Commissioner of Canada. (2004). Questions and Answers regarding the application of PIPEDA, Alberta and British Columbia’s Personal Information Protection Acts.https://www.priv.gc.ca/en/privacy-topics/privacy-laws-in-canada/the-personal-informationprotection-and-electronic-documents-act-pipeda/r_o_p/02_05_d_26/ R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34 Slaughter, G. (2020). Companies are finding new ways to track workers at home, but are they going too far? CTV News. https://www.ctvnews.ca/business/companies-are-finding-newways-to-track-workers-at-home-but-are-they-going-too-far-1.4944907 Academia Letters, August 2021 ©2021 by the authors — Open Access — Distributed under CC BY 4.0 Corresponding Author: Brianna Bedran, bedranb@mcmaster.ca Citation: Bedran, B., Johnson, P.A., Johnson, J.C., Isaac, K., Mardon, A. (2021). Working from Home: Privacy Concerns arise during COVID-19. Academia Letters, Article 2633. https://doi.org/10.20935/AL2633. 3