On April 11, 2022, the Government of Ontario passed into law the Bill 88: Working for Workers Act, 2022 The new legislation amends the Employment Standards Act, 2000, by creating new provisions that compel employers to disclose their electronic surveillance practices to employees.
Under the new law, all employers with 25 or employees must have a written policy clearly stating how and in what circumstances they are tracking employee activities and the reasons for such electronic monitoring.
All employees must be provided with a copy of the electronic surveillance policy, including any updates to the policy within 30 days of implementation or update. For new hires, they must be provided a copy the later of 30 days from their start or 30 days from when the employer is required to have a policy in place. If a policy is already in place, employers must provide a copy to agency workers within 24 hours of the start of their assignment to perform work.
Employers will have until October 11, 2022 to comply. Following this deadline, any employers that become eligible as of January 1 of any subsequent year will have until March 1 of that year to ensure a written policy is in place.
Employees who wish to make ESA complaints may only do so pursuant to the employer’s obligations to provide a copy of the written policy and the timeliness of doing so.
This legislation is the first of its kind in Canada and aims to address the increasing integration of technology in all forms of work. It is a further recognition of the shift of working arrangements throughout the COVID-19 pandemic and into the post-pandemic world.
Workers are increasingly being offered remote work (part and full-time) arrangements. This has inevitably brought the office into the home and a greater motivation for employers to keep an eye on their staff through remote surveillance technologies. As employers often provide the means to conduct work in the form of cellphones, computers etc., the opportunity and temptation to use these devices for monitoring cannot be understated. Employees have fair concerns about their privacy, particularly when working in their own homes or when using their own private computers.
That said, there may be a variety of legitimate reasons to conduct certain types of electronic surveillance, including but not limited to:
- overseeing productivity;
- protecting proprietary information and intellectual property;
- investigating complaints of misconduct;
- ensuring compliance with the Company’s data use policies, including the protection of confidential information;
- preventing fraud; and
- ensuring regulatory compliance in applicable industries
There are many methods for employers to collect data, for example, audio/video recording and activity monitoring software. Employers may use this information for various purposes, but there is at present, a lack of transparency as to when, how and what information is being gathered, the purposes of that information gathering and who is seeing this information.
Separate from the new legislation in Ontario, there are presently 4 privacy torts that have been recognized by the courts. The most recently accepted tort, putting an individual in a false light in the public eye, was accepted by Justice Kristjanson’s decision in Yenovkian v Gulian in 2019.1 In explaining their reasons, the Judge provided an overview of the torts:
- Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.
- Public disclosure of embarrassing private facts about the plaintiff.
- Publicity which places the plaintiff in a false light in the public eye.
- Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.2
It is not hard to see why monitoring an individual’s private space or overreaching methods can raise a variety of privacy issues, particularly if the employee has no prior knowledge of the employer’s surveillance.
The legislation itself does not ban or limit an employer’s electronic surveillance of employees. In fact, the legislation makes it clear that nothing in the amendments “affects or limits an employer’s ability to use information obtained through electronic monitoring of its employees.” Instead, the legislation requires employers to be transparent with employees about their data surveillance.
Arguably, if an employee is not made aware that their activities are being monitored, the employee may have a reasonable expectation of privacy regarding certain activities or sensitive information collected about the employee. The legislation in this regard may bolster an employee’s claim that an employer’s surreptitious surveillance is a violation of one’s personal privacy.
1 Yenovkian v. Gulian, 2019 ONSC 7279 (CanLII), https://canlii.ca/t/j4gqn
2 Supra Yenovkian, at para 166