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Watching the Watchers: Regulating Employee Monitoring in Ontario

2 minute read

The Ontario Minister of Labour, Training and Skills Development recently announced that the government will introduce legislation requiring employers to disclose to employees if they are being electronically monitored. This will apply to employers with 25 or more employees.

The legislation is intended to provide transparency and privacy protection to workers, ensuring that they are aware of how their use of company computers, cell phones, GPS systems, and other electronic devices is being tracked.

Employers will be required to have a policy in place that discloses:

  • Whether the employer electronically monitors employees;
  • How it monitors employees, and under what circumstances; and,
  • The purpose of collecting electronic monitoring information.

The big question

It is common practice to have data security software. You might be asking yourself, "what constitutes "electronic monitoring" Alysia?" That's a great question; with employee surveillance technology evolving at breakneck speed and many office workers still working remotely, many employers utilize software and applications that track information about what is being done on company computers.

To cite just a few common practices, data security software that tracks files being placed on external media and file transfers via email, and software that monitors electronic activity to identify the cause of a data breach. Businesses increasingly require service providers and vendors to have this software in place to protect their clients' personal information. Additionally, many employers are utilizing software with artificial intelligence that gathers user data to identify patterns that can be leveraged to create efficiencies in the operation of the business.

Will simply having software that collects information about what a user is doing on an electronic device be considered "electronic monitoring," or does an employer need to be reviewing and using the information for employment purposes?

From the beginning of the pandemic, many employers deployed surveillance software, which monitored employees' productivity through stealth monitoring, optical character recognition, keystroke recording, or location tracking. The Personal Information Protection and Electronic Documents Act, the privacy legislation applicable to most Ontario corporations, does not apply to employee personal information.

The Office of the Privacy Commissioner has issued guidance on privacy in the workplace, which states: If employees are subject to random or continuous surveillance, they need to be told so. However, this guidance has not been updated since 2004, eons ago, when one considers the advancements in data collection technology.

The road ahead

This pending legislation will need to balance the protection of workers' privacy with the need for businesses to collect information to innovate, deliver effective services, and have efficient operations.

I'll be keeping my eyes on these developments; stay tuned for future blogs where I'll examine the implications for you as we move forward.

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Alysia M. Christiaen

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