Is your boss spying on you? A new law would require them to tell you

As the pandemic intensifies the role — and the risks — of workplace surveillance, the Ontario government says it intends to propose new laws requiring employers to disclose how and why they are monitoring their employees.

The proposed changes, expected to be announced Thursday, would make written electronic monitoring policies mandatory at companies with 25 or more employees and would apply to both remote and in-person work.

“We’re seeing in some cases, employees are being tracked when they’re going to the washroom or when they’re taking a lunch break without their knowledge, and that’s not right,” Labor Minister Monte McNaughton said in an interview.

Meanwhile, the number of Ontarians working at home due to the pandemic shot up, he said.

“I think about those parents that were taking Zoom calls in their kid’s bedroom or their own bedroom (who) weren’t told if their audio or video was being recorded.”

Currently, Ontario does not have any workplace surveillance laws, and employers have “fairly wide latitude” to monitor workers, said Nancy Shapiro, a partner at the Toronto-based labor law firm Koskie Minsky. Common-law principles guide privacy rights in the workplace, unless workers are unionized and have protections stipulated in their collective agreement.

But transparency about surveillance and electronic monitoring has been “best practice” for the past decade or so, said Shapiro.

“That is where this legislation sounds to be going,” she said.

A report produced last year by Data & Society, an independent nonprofit research organization based in the US, notes that low-wage and hourly work has typically been “more susceptible to datafication because these jobs’ tasks are easily measured.” Surveillance technology has long been used in sectors like warehousing, farming and gig work, where technology is often used to monitor productivity, speed or location.

As previously reported by the Star, the practice has led to concerns over workplace safety and disciplinary consequences when workers don’t meet targets. The pandemic has only sharpened the practice, experts say, including for those now working from home.

“Some employers have likely implemented types of surveillance that could go beyond the levels of monitoring that would even be possible in person,” said the Washington Center for Equitable Growth’s Kathryn Zickuhr, a labor market policy analyst with who has researched workplace surveillance south of the border.

New technologies allow employers not just to expand surveillance in some cases, but to deploy artificial intelligence to more efficiently review the data collected, she added.

“Surveillance is certainly not new,” she said. “But technology makes it possible for employers to analyze all that data, which is a crucial point.”

The proposed disclosure requirements, if passed, would come into effect by the end of 2022, McNaughton said. (Ontarians go to the polls June 2.) Asked whether the reforms will limit the kind of data employers can legally collect about workers, McNaughton said he would consider going further “if needed.”

Surveillance can come in many forms, including the collection of data through hand-held devices, GPS, cellphones, cameras, keystroke tracking, and even workplace wellness apps. Surveillance systems can also be built into workplace computer software and in some cases, technology has even been used in call center to track workers’ emotional tenor when speaking with customers.

Sometimes, employers’ goal is not to spy on workers but to “protect their tangible and intellectual property,” said Shapiro.

“It’s not because they want to read what someone’s saying to their brother about dinner on Sunday night.”

But productivity-monitoring initiatives can often be nebulous in scope — and of questionable value, said Zickuhr.

“If you’re looking at time-tracking software that makes sure workers are moving their mouse every two minutes, that might be surveillance … that may not meaningfully increase productivity.”

Beyond the privacy implications, these practices raise crucial questions, she said — especially for vulnerable workers, who have historically been the most heavily monitored.

“It is really important to consider harms that accrue simply from constant surveillance,” she said. “There is research that talks about the mental health harms from being surveilled, especially if someone is in a position where they don’t know when they’re being watched or how that information is collected.”

McNaughton said the reforms are part of an effort to “make Ontario the best place to live, work and raise a family,” and follow numerous other changes including new right-to-disconnect laws.

“We are the first in Canada to move on this,” he said.

Outside Canada, some jurisdictions have already taken action on workplace surveillance. European Union laws impose stiff ends on organizations found to be violating data collection regulations, for example. In 2020, Swedish clothing retailer H&M was fined 35.3 million euros (about $50 million) for keeping “excessive” records about workers’ families, religions and illnesses at a German service center. (H&M apologized for the breach and said it made managerial changes at the center following the decision.)

Zickuhr said transparency around workplace surveillance is a “first step.” Other important tools to consider include channels for employees to formally challenge privacy breaches, proactive enforcement, and broader labor reforms that protect the workers least able to push back against unreasonable surveillance

“Power relative to employers is a really important context for these conversations.”


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