Remote work highlights challenge of balancing employer surveillance and privacy

Law tabled over electronic monitoring by employers Ontario is proposing a new law that would require companies to disclose to employees how they are being monitored electronically.

Remote work has become more widespread in many of Canada’s industries during the COVID-19 pandemic, and lawmakers are starting to take this labour landscape into account, seeking new ways to balance productivity and privacy.

Last month, Ontario became the first province to pass a new transparency law requiring companies to establish policies to tell their employees if and how they are being electronically monitored while at work, whether in a physical office, in the field or at home.

The bill, called the Working for Workers Act 2022, covers a variety of topics, including establishing a minimum wage for gig workers such as couriers or rideshare workers.

One major aspect was the requirement to inform employees about the level of electronic surveillance they could expect at work.

But what does this mean? Howard Alan Levitt, an employment lawyer and senior partner with the firm Levitt Sheikh, told CTVNews.ca in a phone interview that this doesn’t meant that employers are entitled to more surveillance.

“It doesn't change the law in terms of what employers can do, but it requires employers to tell [employees],” he said.

Before, employers might have had to tell employees that they had the right to surveil and retain certain information, but were not compelled to tell employees when this was occurring or share a detailed policy.

“Employers can conduct surveillance, always could … which is entirely legal in 95 per cent of the cases,” Levitt said. “But now they have to tell employees that they’re doing it.”

Under the new legislation, companies with 25 or more workers will have to create a written policy clearly outlining how electronic monitoring works for them.

“The policy would need to contain information on whether the employer electronically monitors its workers and, if so, a description of how and in what circumstances the employer does this,” a press release from the Ontario government stated. “In addition, the employer would need to disclose the purpose of collecting information through electronic monitoring.”

This increased transparency means employees can make an informed decision about working under a company’s surveillance policy, or it can allow them to adjust their work habits to accommodate such policies.

How transparent must companies be? Should employees be vigilantly scanning documents for hidden details, or will information be presented clearly?

Levitt said that while the legislation doesn’t tackle the details of exactly how upfront employers are required to be in informing employees of these details, previous court cases have established that if employers are required by law to bring something to employees’ attention, it should be “very, very clear — they can’t bury it in page 18 of a 30 page doc and hope the employees somehow see it.

“That would not be compliance in my view.”

Although Ontario is the first province to pass this specific type of legislation requiring a written policy that is provided to employees, other provinces such as Quebec, British Columbia and Alberta have pre-existing laws regarding how the private sector collects, uses and discloses employee data.

In B.C. and Alberta, employers can collect and disclose information about employees, but have to give notice to employees and clarify the purpose of collecting the personal information. Quebec’s privacy laws regarding employment function similarly, but go into more detail to state that employers need a serious reason to carry out anything considered an invasion of privacy.

REMOTE WORK AND PRODUCTIVITY

When the majority of workers were in an office setting, workplace surveillance could be as simple as an open plan office where coworkers could see your computer screen at all times.

But since the pandemic started, a sizeable portion of the workforce has shifted to remote work, driving up interest in ways to monitor employees electronically.

The Ontario press release stated that 32 per cent of Canadians aged 15-69 were working from home as of January 2021, compared to just four per cent in 2016, and that this new legislation is in response to not only the surge in remote work, but the fact that businesses are accessing new and more advanced technology, such as employee monitoring software, to track remote employees.

“There's more surveillance now, so therefore there's more concern about being surveilled,” Levitt said.

“I always think transparency is good for employees.”

Levitt acknowledged that this law could result in some employers deciding to surveil their employees at a higher level than before — or than is necessary or allowed — simply because they didn’t know they were allowed to surveil them at all before.

“They'll say, ‘Well, if employees have to be told that we're surveilling them, I guess that means we are allowed to surveil them.’ So it's also possible there's a result of this legislation [that some] employers will go overboard and have excessive surveillance beyond what they're legally entitled to,” he said. “So that could be a very damaging collateral aspect of this, because as the law says, you [as the employer] simply have to tell them and you assume you can do it, but you may assume more than you actually have the right to.”

Many employers are worrying about potential drops in productivity due to remote work, Levitt said. He added that some employers with hybrid work setups in Ontario may even try to use these new transparency requirements to incentivize more employees to return to the office by making their policy on electronic monitoring so in-depth it dissuades some from remote work.

It’s unclear if remote work leads to less or more productivity.

A 2020 survey of around 950 employees working remotely in the U.S. showed that most respondents admitted to doing non-work activities such as cooking, watching TV, doing laundry or online shopping at some point while working from home. But while some studies and workplaces have shown a drop in productivity at work since the jump in remote work, others have shown a boost.

For instance, a study comparing  U.S. productivity data in 2020 after the start of the pandemic to the same time period in 2019 found a 47 per cent increase in productivity.

And if there is a drop in productivity, the cause might not be as simple as employees being more distracted when unsupervised. One study in the U.K. looking at a company with 1,000 employees found that the average number of “low-quality” meetings taking up employees’ time had increased due to remote work.

However, these studies are unlikely to convince employers to give remote workers more leeway in terms of surveillance.

A 2021 report from Cybersecure Policy Exchange, an organization which looks at public policy issues related to digital privacy, looked at data on work surveillance in Canada since the start of the pandemic and found that demand is increasing for more digital monitoring in the workplace.

“With estimates that up to one quarter of work hours could be performed remotely even after the pandemic ends, the tension between the rights of workers and concerns of employers in ensuring a safe and productive workforce are only set to grow,” the report stated.

As remote work commonly takes place in a person’s home, and often on a personal computer, the subject of workplace surveillance vs. privacy can become more complicated.

“If employers are using their personal laptops as a fundamental part of their job, the employer can say, ‘I want some insight into what you're doing on my time,’ in the same way they would have insight into it if they were working in the office and they have supervisors crawling about the place,” Levitt said.

He added that electronic monitoring for an employee on a personal laptop might mean employers being able to look at an employee’s work emails, but not the contents of the personal laptop itself.

Many workplaces have minimal electronic surveillance that employees are part of, such as asking employees to check in throughout their day using online productivity tools. But some may turn to more in-depth surveillance.

The Cybersecure report outlined how some tools to measure employee performance or productivity can include “technologies that monitor keystrokes, eye movements, facial muscles, tone of voice and geolocation.

“While such technologies have often been discussed in relation to their growing use on-site, especially in manual labour and low-wage work settings, their expansion to monitor workers at home, in light of the pandemic, is further raising concerns over their implications — where the distinction between work and private activities is often blurred, particularly through use of personal devices and networks for work-related activity,” the report said.

This doesn’t mean that prior to Ontario’s new transparency law, every workplace in the province had been spying on everything you’ve been doing on your laptop during a work shift at home. Much of the more in-depth surveillance is not possible while you’re on a personal laptop, according to Levitt, and companies that give out work laptops to employees usually inform employees that they have a right to review activity on company equipment.

But with remote work seemingly here to stay for a large portion of the workforce, we could be seeing more companies looking for more robust ways to keep track of employees while at home — making transparency all the more important.

Whether we will see more bills like the one introduced in Ontario is yet to be seen.

According to the Cybersecure report, transparency as a regulation is a necessary step, but isn’t the only one Canadian businesses and governments should be taking to navigate this new worksphere.

They recommend that employers ensure workers have reasonable breaks that are free from electronic monitoring of any kind, as well as not to expect remote workers to be available outside of their work hours, and that employers should operate on a principle of the least intrusive monitoring possible.

“The need for Canadian-specific research on workplace surveillance is crucial to producing further knowledge and creating policies aimed at dismantling structural inequities,” the report stated.