New legislation requiring Ontario employers to disclose electronic workplace surveillance will increase transparency, but does not grant employees any new privacy rights, labor lawyers say.
The Ontario government passed legislation in April requiring employers with 25 or more employees to have an electronic monitoring policy.
This could cover whether and to what extent an employer monitors an employee’s computers, cellphones or GPS.
The disclosure requirement came into effect on Tuesday and employers now have 30 days to provide workers with a written copy of the policy.
However, Mackenzie Irwin, a Toronto-based employment lawyer with Samfiru Tumarkin LLP, told CTV’s Your Morning on Thursday that one of the main criticisms of the legislation is that it does not give employees any new rights at work. .
Rather, it forces employers to be upfront and transparent with their staff about what they are actually monitoring.
“As far as where that line is drawn, it’s really unclear right now,” Irwin said.
Employees would not be able to challenge any monitoring under the law.
Irwin said employers are allowed to monitor their workers as long as it is for a “legitimate business purpose” and it is “minimally invasive”.
Even so, she said employees might be very reluctant once they learn how much of this surveillance is going on.
“It will be a very interesting time in Ontario in November to see what surveillance is actually taking place,” she said.
The legislation comes as remote working has become much more common during the COVID-19 pandemic.
Alberta, British Columbia and Quebec have privacy laws that place certain limits on the ability of private sector organizations to collect employee information.
Speaking to The Canadian Press, Ontario Labor Minister Monte McNaughton described the policy as a “first step” and the first of its kind in Canada.
“It will give the government a clearer picture of what employers are doing,” McNaughton said Tuesday.
“I think it’s safe to say that there will be more to come in the near future when it comes to protections and creating more opportunities for workers.”
Sundeep Gokhale, a labor and employment lawyer with Sherrard Kuzz LLP in Toronto, told CTV News Channel on Tuesday that employees likely assumed their employer was watching them.
“At the heart of it, it’s really about keeping employers honest and transparent and creating that open line of communication between an employer and their employees,” he said.
The challenge for some employers, Gokhale said, may be the lack of a definition in Ontario’s Employment Standards Act for electronic monitoring.
Ultimately, it may come down to whether an employer stores and has access to electronic employee information and whether it routinely reviews that data.
“So if you’re an employer and you get a report every month on keystrokes or websites visited, whatever it is, then yes, you’ll have to disclose that,” Gokhale said.
“But just storing emails and not having a systemic review or something of that nature won’t trigger electronic surveillance.”
With files from The Canadian Press