Brock University: Brock experts weigh in on legislation requiring employers to disclose digital surveillance

Brock University Labour Studies experts say new provincial legislation coming into effect next week that requires employers to disclose how they digitally monitor employees fails to properly outline employees’ privacy rights.

The increase in remote and hybrid work opportunities in recent years has led to many employers introducing monitoring software that allows them to track their employees in various ways.

Under Bill 88, the Working for Workers Act, 2022, employers of 25 or more employees will be required to create a written policy detailing how, when and why they monitor employees through electronic devices. Practices could potentially include keystroke tracking, screen captures, GPS monitoring and facial recognition, among others.

The amendment to the Employment Standards Act of 2000 passed in April. Employers affected by Bill 88 are expected to produce a written policy by Oct. 11.

Associate Professor Alison Braley-Rattai says there have long been calls for legislation around the privacy rights of employees.

“While employees do have some privacy rights at work, they are complicated, hard to understand and generally difficult to vindicate,” she says. “Legislation that made it easier to comprehend and vindicate privacy rights would have been helpful, but this legislation does not do that — it does not create any new privacy rights nor does it clarify existing ones.”

Braley-Rattai says that while “requiring employers of a certain size to make transparent their current surveillance practices is, of course, a good thing,” the current legislation falls short in much the same way that the Right to Disconnect law does not actually create any new rights for employees to disconnect.

Assistant Professor Paul Gray in the Department of Labour Studies says that while it is good to see employers being required to disclose their monitoring practices to employees, the bill still has “significant shortcomings” that call into question any claims that the legislation is ‘on the side of workers.’

“Although employees can make a complaint to the Ministry of Labour if their employer fails to provide a written copy of their electronic monitoring policy, these employees cannot make a complaint if their employer’s actions violate this written policy,” Gray says. “This makes the changes introduced by this policy fairly superficial.”