The advance in remote work during the pandemic led to the practice of increasingly invasive surveillance mechanisms imposed on employees. “Tattleware,” such as keystroke monitoring or eye movement detectors, became a way for employers to track their employees’ productivity and online activity while they were working from home. Electronic monitoring was kept unregulated, thereby creating significant concerns around privacy and consent for employees who were oblivious to the fact that they were being digitally tracked by their employers. To address this issue, under the Employment Standards Act (“ESA”), Ontario required employers with 25 or more employees to disclose their electronic monitoring policies in writing by October 11, 2022. Beginning in 2023, organizations of this size must release their written policy on electronic monitoring before March 1 of that year.
The policy must disclose whether the employer engages in electronic monitoring of employees. If the employer does, the policy must address:
The contexts in which the employer might electronically monitor employees
How the employer will use the information acquired through electronic monitoring
The date the policy was prepared
The date any updates were made to the policy
Electronic monitoring is not defined in the ESA, but the Ontario Ministry of Labour, Immigration, Training and Skills Development indicates that this encompasses “all forms of employee and assignment employee monitoring that is done electronically.” Examples include the tracking of websites and user activity, GPS tracking of delivery vehicles, and electronic sensors that catch how quickly employees scan items at a grocery check-out. The policy must address the monitoring of electronic devices or equipment given to employees from the organization, as well as monitoring at the physical workplace, thus applying equally to home workspaces as well as the employer’s workplace.
However, there remain significant gaps in this legislation. This policy does not regulate how an employer might use electronic monitoring on their employees, but merely mandates transparency regarding digital surveillance in the context of remote and/or hybrid work. The policy also does not allow employees to challenge their employer’s monitoring practices. Employees can only make a complaint regarding an alleged breach of the employer’s duty to provide a copy of the written policy within the required timeframe to its employees. Further, the employer is not necessarily restricted to using the information they gain from electronic monitoring for the purposes they state in their policy. Employers can use this information in “any way [they] see fit.”
Increased transparency around a previously unregulated aspect of the workplace is a step in the right direction, especially considering that the prior alternative was outright ignorance for employees. However, this policy arguably favours the employer and does not give employees a strong avenue of protection for their potential concerns related to privacy and security. As remote work continues to evolve and affect office culture, how the law responds to these developments is critical to effectively mediating the employer-employee relationship.
- AJ
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