The Ontario government plans to introduce legislation later this month that will compel employers with 25 or more workers to disclose to their employees if and how they are being electronically monitored.
Employers based in Ontario will be tasked with crafting their own internal electronic monitoring policy that will include information about whether employees are surveilled electronically, how the surveillance is done and why the information is being collected.
“Whether you are a delivery person being followed by GPS, a construction worker using a company phone, or an office worker logging in from home, you deserve to know if and how you are being tracked,” said Monte McNaughton, the province’s Minister of Labour, Training and Skills Development.
The legislation is part of Bill 27, or the Working for Workers Act, a series of labour reforms Mr. McNaughton began introducing late last year. It includes laws that give employees the right to disconnect from work, and ban non-compete clauses in job contracts.
Mr. McNaughton said the rise in remote and hybrid work compelled his department to introduce the legislation. “The government has to keep up with technological changes in the world of work. It is my belief that people want and deserve to have their privacy protected more than ever,” he added.
A Deloitte report released last week showed that the number of remote workers in Canada grew from just 4 per cent in 2016 to 23 per cent in August, 2021. The report also noted that one in five employers found it difficult to trust employees to get work done in a remote or hybrid setting.
Motivations for surveillance are usually reducing risk and liability, protecting confidential information and encouraging productivity, according to a September, 2021, report from the Cybersecure Policy Exchange, a Toronto-based think-tank specializing in digital privacy and cybersecurity research. The report found that the use of employee surveillance technologies (apps such as Hubstaff, ActivTrak and Teramind) had increased dramatically in Canada over the pandemic. The apps, often branded as “workplace management software,” were used mainly to track employee behaviour and measure performance.
On a company-issued laptop, the apps could allow an employer to see, for example, what programs a worker at home is opening, and monitor their e-mail activity.
Ontario currently has no specific legislation that protects workers’ privacy, said Stuart Rudner, a Toronto-based employment lawyer. How federally regulated industries such as Crown corporations, banks and airlines may collect, use and disclose data on their workers is governed by the Personal Information Protection and Electronic Documents Act (PIPEDA).
“But employees do have a right to privacy under common law,” Mr. Rudner explained. “The general rule is that everyone has an entitlement to privacy, but it can be infringed upon when there is a purpose, and that intrusion should be as minimal as possible.”
Alex Lucifero, a labour and employment lawyer with Samfiru Tumarkin LLP, said that under common law, employers need to show the electronic surveillance or collection of data has a legitimate business purpose and no less-intrusive means of achieving it is available. “While Ontario doesn’t have legislation that is specific to this issue, I would say that as it stands, employees’ personal right to privacy is valued by the court to a relatively high degree,” Mr. Lucifero said.
Some provinces already have legislation to protect the privacy of employees. In Alberta, for example, a worker’s location is considered private information that can be legislated under the province’s Personal Information Protection Act.
But Sharaf Sultan, an employment lawyer with Toronto-based Sultan Lawyers, points out that if a non-unionized employee is terminated for not wanting to comply with electronic monitoring, the law can do nothing about it as long as the person is compensated for the dismissal. “We still do not have the answer to the question of what if you don’t want to be surveilled? How do you still retain your employment?”
The mere existence of privacy legislation does not necessarily protect workers against employer surveillance. In 2013, an adjudicator in B.C. ruled in favour of an elevator company that used GPS to monitor an employee’s location and behaviour during work hours. The employer, Kone Inc., said the surveillance was necessary to ensure worker safety and that the client was billed appropriately.
Mr. Rudner said he believes surveillance by employers is a bigger issue now than before the pandemic because of the prevalence of remote work and the fact that privacy laws are not as robust in most provinces as they should be. “When I’m helping employers draft workplace policies, I usually tell them to state plainly to employees that if they store or access something on an employer’s equipment, assume it is not private.”
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