Ontario’s Working for Workers Act offers a path to regulating workplace surveillance, but employees deserve stronger protections

In the run-up to Ontario’s provincial election, the Conservative-led government quickly tabled and passed Bill 88, the Working for Workers Act, 2022. Among its provisions, the Act requires employers with workplaces of 25 or more employees to provide workers with a written policy about whether and how they are electronically monitored. 

Despite its shortcomings – and experts have raised  many – the Act, along with other initiatives, such as Member of Parliament Michael Coteau’s launch of a national public consultation on remote work surveillance,  reveals policymaking concerns over workplace surveillance.    

Worker surveillance today is becoming more data-driven. In fact, employers are relying more on granular forms of data, often using AI and other analytics software to monitor their employees. These shifts in managerial practices are concerning. 

Research has shown that the COVID-19 pandemic has further accelerated already intensifying digital surveillance at work,  including through the deployment of keystroke, webcam, desktop, geolocation and email monitoring in Europe, the UK, the U.S., and  Canada. The UK-based bank, Barclays, used heat and motion tracking devices to determine whether an employee is working near their desk. Accounting firm PwC used facial recognition to record how long employees remained in front of their computer screens, which required employees to provide a written reason for any absences, including toilet breaks. Walmart is reportedly interested in acquiring software that listens to staff and customer conversations.  

Surveillance technologies also appear more frequently  in workplaces where individuals belonging to historically disadvantaged communities make up a large portion of the workforce such as in the gig economy or warehouses.   

Implications for employees’ rights and liberties 

In a post-pandemic world, hybrid models of work are here to stay. This raises new questions about both the psycho-social implications of surveillance technologies, and their impact on personal privacy, rights and liberties. Although some degrees of monitoring are acceptable, and even beneficial, for workers, including keeping people safe at work, protecting against liabilities and fostering growth and professional development, surveillance that is perceived as excessive or overly intrusive by employees can lead to stress, anxiety, and even physical injuries resulting from, for example, repetitive stress injury. 

Excessive surveillance can also result in distrust of the employer and management, and lead to higher absenteeism and turnover rates. For the employer, excessive surveillance can negatively impact a team’s quality of work. 

Employees deserve stronger protections

Our research at Cybersecure Policy Exchange, an initiative of Toronto Metropolitan University, found that monitoring practices are regulated by a patchwork of federal and provincial privacy laws. Existing legal protections for employees depend on jurisdiction, sector, and unionization status. Workers who have privacy protection find that employers still have considerable leeway to surveil.  Yet, many workers have no clear privacy protections at all.

Ontario’s new legislation  is no silver bullet. It  is really a transparency law that requires employers to disclose their monitoring practices, and gives employees the right to complain if an employer does not. While it’s a positive step, the Act falls short of  providing workers with the modern protections they need in an era of Big Data and AI-enabled surveillance. The Act places no limits on what employers can do with data collected on employees, and doesn’t provide enforcement and recourse mechanisms if an employee is subject to monitoring. 

Stronger, more robust privacy protections are needed for all employees, especially as employers continue to adopt AI-powered surveillance technologies that can evaluate employee performance, influence managerial decisions and produce real-world effects such as career advancement or termination. A strong regulatory framework should build in requirements based on well-established Canadian legal standards to ensure that: 1) workplace surveillance does not go beyond what is reasonably required and 2)  privacy risks associated with using any data-gathering tool to monitor workers are proportionate to the desired business objective.

The risks and consequences of workplace surveillance also need to be understood beyond individual privacy implications. Surveillance risks intensify as new and emerging AI-based technologies continue to flourish in workspaces and across society. The trend towards these tools comes at a direct cost to citizen rights, liberties, well-being, and more broadly, democracy itself. While there are positive signs in policymaking, more needs to be done to ensure workers have the privacy protections they deserve.