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Ontario’s Path Towards Legitimizing Employee Surveillance

Earlier this week, the Ontario government declared that it would be introducing a series of labour reforms. As part of these reforms, employers will be required to inform their employees of how they are being electronically monitored. These requirements will be applied to all employers with 25 or more employees.

Employers already undertake workplace surveillance, though it has become more common and extensive as a result of the pandemic. Where surveillance is undertaken, however, businesses must seek out specialized counsel or services to craft appropriate labour policies or contracting language. This imposes costs and, also, means that different firms may provide slightly different information. The effect is that employers may be more cautious in what surveillance they adopt and be required to expend funds to obtain semi-boutique legal opinions.

While introducing legislation would seem to extend privacy protections for employees, as understood at the moment the reforms will only require a notification to employees of the relevant surveillance. It will not bar the surveillance itself. Further, with a law on the books it will likely be easier for Ontario consulting firms to provide pretty rote advice based on the legislative language. The result, I expect, will be to drive down the transaction costs in developing workplace surveillance policies at the same time that workplace surveillance technologies become more affordable and extensively deployed.

While I suspect that many will herald this law reform as positive for employees, on the basis that at least now they will know how they are being monitored, I am far less optimistic. The specificity of notice will matter, a lot, and unless great care is taken in drafting the legislation employers will obtain a significant degree of latitude in the actual kinds of intrusive surveillance that can be used. Moreover, unless required in legislative language, we can expect employers to conceal the specific modes of surveillance on grounds of needing to protect the methods for operational business reasons. This latter element is of particular concern given that major companies, including office productivity companies like Microsoft, are baking extensive workplace surveillance functionality into their core offerings. Ontario’s reforms are not, in fact, good for employees but are almost certain to be a major boon for their employers.