In recent months, the provincial government introduced several legislative changes with Bill 88, Working for Workers Act, 2022, which creates new rules that govern the workplace, including increased transparency about employers’ electronic monitoring of its employees.
Once in effect, Bill 88 will require large employers with 25 or more employees to tell their workers if, how and why they are being monitored electronically. Employers must also date, track future amended dates, and provide a copy of the policy to new and current employees (including temporary workers).
As we know, COVID-19 initiated the largest shift to remote work in history, with 32 percent of Canadians aged 15 to 69 working from home in January 2021, compared to just 4 percent in 2016. At the same time, AI technology allowing businesses to monitor their employees have quickly developed over the last decade and employer demand for these technologies increased as the pandemic has gone on.
The Precision Economy[i]
The Precision Economy is defined as “a future workplace of hyper-surveillance and algorithmic optimization, in which organizations create value by measuring and incentivizing virtually every aspect of our working lives.”[ii]
Some suggest that the new regulations attempt to curb the intrusive nature of employee monitoring and aim to provide increased transparency as to what, when, and how employees are monitored. For example, whereas conventional monitoring consisted of human supervisors present during a workday or shift, employers could justify their supervision when it was appropriately linked to employment demands, for example, workplace safety, quality control and performance management.
There has been an unregulated opportunity for remote workers to go beyond conventional monitoring and instead collect data and information about employees’ work habits, which amounts to continuous surveillance that intrudes into their private spaces. Some surveillance software tracks keystrokes, web searches, and document access. Others go so far as to record audio and video of a worker at their desk.
The Limited Legal Framework under PIPEDA
Currently, a limited legislative framework exists under the Personal Information Protection and Electronic Documents Act, SC 2000, c 5 (PIPEDA). Only British Columbia, Alberta and Quebec have provincial legislation which requires private organizations to notify employees of the collection of their personal information. The Privacy Commissioner and the courts have used PIPEDA and its provincial equivalents to balance an employer’s needs for workplace surveillance with employee privacy.[iii] However, the legal framework still allows employers to deploy technology to remotely surveil so long as its specific use is justifiable.
A New Era of Work
Ontario is set to become the first province to require electronic monitoring policies and transparency. As mentioned, the Written Policy on Electronic Monitoring must identify whether an employer electronically monitors employees and, if so, provide:
- a description of how and in what circumstances the employer may electronically monitor employees, and
- the purposes for which information obtained through electronic monitoring may be used by the employer.
Note, however, Bill 88 does not define “electronic monitoring” and could include software used on corporate networks (keystroke tracking of passwords and text, website visits etc.), the data amassed on personal devices used under “bring your own device” programs, and other tools embedded with sensors or camera (computers).
It’s also unclear whether the law will apply retroactively and to what extent employers might need to reveal how and why they have monitored employees or what the data has been used for.
Stay tuned for more information in the coming months.
Written by: Cereise Ross
[i] See Teresa Scassa, “Privacy in the Precision Economy: The Rise of AI-Enabled Workplace Surveillance during the Pandemic” (June 8, 2021) Center for International Governance Innovation, online: https://www.cigionline.org/articles/privacy-in-the-precision-economy-the-rise-of-ai-enabled-workplace-surveillance-during-the-pandemic/.
[ii] See Darrell M. West, “How employers use technology to surveil employeesh” (January 5, 2021) Brookings Institute, online: https://www.brookings.edu/blog/techtank/2021/01/05/how-employers-use-technology-to-surveil-employees/.
[iii] See e.g., Eastmond v. Canadian Pacific Railway, 2004 FC 852 (CanLII).