Teresa Scassa - Blog

Displaying items by tag: electronic monitoring

 

On February 28, 2022, the Ontario government introduced Bill 88, titled: An Act to enact the Digital Platform Workers’ Rights Act, 2022 and to amend various Acts. The Bill is now at the second reading stage.

Most of the attention received by the bill has been directed towards provisions that establish new rights for digital platform workers. The focus of this post is on a set of amendments relating to electronic monitoring of employees.

Bill 88 will amend the Employment Standards Act, 2000 to require employers with more than 25 employees to put in place written policies regarding employee monitoring. The policies must specify whether the employer monitors employees electronically, how and in what circumstances it does so, and for what purposes. Policies must include the date that they were prepared along with any dates of amendment. Regulations may also specify additional information to be contained in the policies. Employers will also have to provide – within set time limits – copies of the policy to each employee, as well as copies of any policies that have been revised or updated. There are policy record-keeping requirements as well.

The term “electronic monitoring” is not defined in the Bill, and there may be issues regarding its scope. Certainly, it would seem likely that audio and video surveillance, as well as key-stroke monitoring and other forms of digital surveillance would be captured by the concept. Less obvious to some employers might be things such as access cards that allow employees to enter and access certain areas of the workplace. Such cards track employee movements, and thus may also count as electronic monitoring. Beyond this, the bill provides significant scope for changes to obligations via regulation – the government may exempt employees from the requirement to have policies for certain forms of electronic monitoring in specified circumstances. Regulations may also prohibit some forms of electronic monitoring.

Given the extent to which employees are increasingly subject to electronic monitoring in the workplace – including in work-from-home contexts – these new provisions are welcome. They will provide employees with a right to know how and when they are being digitally monitored and for what purposes. However, the rights do not go much beyond this. Employees can only complain if they do not receive a copy of their employer’s policy within the specified timelines; the bill states that “a person may not file a complaint alleging a contravention of any other provision of this section or have such a complaint investigated” (s. 41.1.1(6)). Further, the bill places no limits on what employers may do with the information gathered. Section 41.1.1(7) provides: “nothing in this section affects or limits an employer’s ability to use information obtained through electronic monitoring of its employees”.

In 2021, the Ontario government floated the idea of enacting its own private sector data protection law. Such a law would have most likely included provisions protecting employee workplace privacy. Indeed, the province’s White Paper proposed the following:

An organization may collect, use or disclose personal information about an employee if the information is collected, used or disclosed solely for the purposes of,

(a) establishing, managing or terminating an employment or volunteer-work relationship between the organization and the individual; or

(b) managing a post-employment or post-volunteer-work relationship between the organization and the individual.

Although such a provision gives significant room for employers to collect data about their employees, including through electronic means, there is at least a purpose limitation that is absent from the Bill 88 amendments. Including employee personal information under a general data protection law would also have brought with it other protections contained within such legislation, including the right to complain of any perceived breach. All employees – not just those in work forces of 25 or more employees would have some rights with respect to data collected through electronic surveillance; such information would have to be collected, used or disclosed solely for the specified workplace-related purposes. Such an obligation would also be measurable against the general reasonableness requirement in privacy legislation.

The amendments to the Employment Standards Act, 2000 to address electronic surveillance of employees are better than nothing at all. Yet they do not go nearly as far as privacy legislation would in protecting employees’ privacy rights and in providing them with some recourse if they feel that employment surveillance goes beyond what is reasonably required in the employment context. With a provincial election looming it is highly unlikely that we will see a private sector data protection law introduced in the near future. One might also wonder whether the current government has lost its appetite entirely for such a move. In its submissions on the province’s White Paper, for example, the Ontario Chamber of Commerce chastised the province for considering the introduction of privacy legislation that would impose an additional burden on businesses at a time when they were seeking to recover from the effects of the pandemic. They advocated instead for reform to the federal government’s private sector data protection law which would build on the existing law and provide some level of national harmonization. Yet there are places where the federal law does not and cannot reach – and employment outside of federal sectors is one of them. Privacy protections for workers in Ontario must be grounded in provincial law; the proposed changes to the Employment Standards Act, 2000 fall far short of what a basic privacy law would provide.

Published in Privacy

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