The Human Rights Implications of Digital Surveillance and Workplace Monitoring Technology

December 22, 2023

On May 24, 2023, I spoke at the OBA’s Annual Update on Human Rights as part of a session on “Data Collection, Digital Surveillance, and Artificial Intelligence.” This blog will provide a summary of the key takeaways from my presentation.

The COVID-19 pandemic irrevocably changed how we live and work. As more and more employees moved to remote or hybrid work, employers engaged new tools to monitor employees electronically. With the assistance of technology, employers can gather a wealth of information about their employees, including their location and activities. This information is being used to monitor performance, assess productivity, and ensure compliance with workplace policies. The software required to electronically monitor employees is inexpensive and widely available.

With technology developing at a rapid pace, Ontario and other jurisdictions are responding to these developments slowly and, to date, little legislative or judicial attention has been paid to how employee monitoring can contribute to and compound human rights abuses and discrimination. In response to the increase in remote work and electronic monitoring, the Ontario government recently amended the Employment Standards Act (the “ESA”) to require employers with more than 25 employees to disclose how they conduct electronic surveillance of their employees. The amendments to the ESA do not limit an employer’s ability to use information obtained through the use of electronic monitoring: the amendments merely require employers to be transparent about the fact that they monitor. Unsurprisingly, many privacy experts have criticized this new legislation, claiming that it does not go far enough toward enhancing privacy rights for provincially-regulated workers. As such, it is important for employees to understand the kinds of electronic monitoring available to employers, and to be mindful of the potential human rights issues that may arise in the workplace as a result of electronic monitoring.

Electronic monitoring policy requirements under the ESA

Effective October 11, 2022, the ESA was amended to include electronic monitoring policy requirements. All employers in Ontario that employ 25 or more employees (as of January 1 in any given year) are required to have a written policy that advises employees whether the employer electronically monitors its employees. If an employer does electronically monitor its employees, the policy must contain the following information:

A description of how and in what circumstances the employer may electronically monitor its employees;
The purposes for which the information obtained through electronic monitoring may be used by the employer;
The date the policy was prepared (including the day, month, and year); and
The date upon which any changes were made to the policy.

Where an employer is required to have a written policy in place, the policy must apply to all employees who are assigned to perform work in Ontario. This includes any managers, executives, or shareholders provided that they are also characterized as an “employee” under the ESA. That said, an employer is not required to have the same policy for all of its employees: the employer can have a single policy that applies to all employees or it can implement different policies for different categories of employees. Employees can make a complaint to the Ministry (or to be investigated by an ESA officer) if the employer has failed to provide a copy of the written policy to its employees within the required timeframe.

Potential Human Rights Considerations

Employers monitor their employees. To varying degrees, employers pay attention to how productive an employee is, whether they arrive and leave on time, how they interact with co-workers, and what contributions they make to the culture and goals of the workplace. With the development of new software products that can be incorporated into the workplace to monitor virtually every aspect of an employee’s work life (from an employees location to how much time they spend on Instagram), it is unsurprising that human rights issues may arise as a result.

Since these amendments to the ESA are quite recent, there are few if any reported decisions that have considered how digital monitoring will intersect with existing legal protections against discrimination. What we do know is that, under the Ontario Human Rights Code, every person has a right to equal treatment with respect to employment and that employees have a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee.

Although the use of digital surveillance provides employers with many advantages, it also runs the risk of being misused to increase the risk of discrimination. The use of information gathered by digital surveillance to make decisions about recruitment, hiring, promotions, or performance could disadvantage people on the basis of a protected ground under the Code.

Moreover, the existing legislation does not limit the ways in which employers can use electronic monitoring and can have serious consequences for employees. There has already been at least one tribunal decision in another jurisdiction in which an employer successfully used information gathered by way of digital surveillance to terminate an employee for cause because she engaged in “time theft” during the course of her employment. While there was no claim that the employee was monitored for a discriminatory reason in that particular case, it is easy to imagine how an employer’s motivations for gathering information about a specific employee (and whether those motivations are for a discriminatory reason) could be raised in the context of an investigation into an employee’s conduct at work. It is likely that employees will object to electronic information being gathered and implemented in ways that are arbitrary, discriminatory, or inconsistently enforced against specific employees, and employers should take care to ensure such information is not misused to exacerbate existing biases or discriminatory attitudes.

While employers currently enjoy broad discretion to access information through electronic monitoring, they should be mindful of how and why they are using this information and to take reasonable steps to ensure it is not being misused in a manner that contravenes existing human rights obligations. These developments in the law also raise some questions about whether an employer may have additional human rights obligations once they come into the possession of any information obtained through the use of electronic monitoring.

Like most technology, electronic monitoring can be used for good purposes and bad ones. Employees should become familiar with the electronic monitoring policies in their workplaces, and seek legal advice if they are concerned that they have been subject to electronic monitoring for inappropriate or discriminatory purposes.