On February 24, 2022, Ontario proposed Bill 88 under the Working for Workers Act that will make it mandatory for employers to disclose to their employees if, and how, they are electronically tracking them.
The purpose of the Bill, as stated, is to “establish certain worker rights for workers, regardless of whether those workers are employees.”
York’s Deputy Spokesperson, Yanni Dagonas, states, “Generally, York does not proactively monitor the use of university-assigned devices by employees. In rare, specific instances, such as reason to believe there has been a violation of university policy or law, or cyber-security risks, York reserves the right to review information stored on electronic devices in order to ensure the community remains a safe environment for all.
“York is reviewing the proposals contained in this Bill as it proceeds through the legislative process. Should it pass, York will determine what policy to adopt and what, if any, changes are needed to York’s current practice,” Dagonas continues.
Professor Carlo Fanelli, assistant professor and coordinator of the work and labour studies program, shares their concerns on how this Bill will realistically affect workers.
“While this is to be welcomed, it does little, if anything, to actually empower workers to do something about. It doesn’t impose any realistic expectations under what conditions employers can track their employees; it doesn’t mandate limits on the particular forms of surveillance; and it doesn’t constrain what employers can do with that data, whether to commercialize it, use it for political purposes, or suppress worker organization.”
Fanelli says that if the government were serious about rebalancing scales in favour of the workers, then their concerns would be “front and centre.”
“Instead, workers face an unattractive choice: accept surveillance at work or risk losing their employment. The other big question this legislation ignores is how these new technologies impact worker health, safety, and well-being, as well as reduce privacy, work-life balance and autonomy, and impose unrealistic productivity metrics,” Fanelli continues.
Lawyer and Certified Information Privacy Professional, Lyndsay Wasser, provides further insights towards the future of the new Bill.
“Monitoring employees is not in all pieces a matter of ethics — there are a lot of legitimate reasons to monitor employees, to make sure they are complying with your policies and applicable laws and ensuring the security technology and client information. It is important to understand that this law does not prevent monitoring of employees and nor should it — it’s a matter of ensuring that employees understand when monitoring is going to occur and the purposes, in order to govern themselves accordingly.”
Wasser believes that this sense of transparency is “beneficial towards the employment relationship.”
Wasser explains that Bill 88 will be further defined and implemented according to the political party in power, going on to state that they would expect a new government to have its own approach on how to deal with employee privacy.
“Sometimes, in the course of a legislative process, changes are made to the text of the proposed Bill. Although I don’t have a crystal ball, you never know the objections to it. It’s fairly simple in terms of what it provides. There’s a reasonable chance it will pass in its form, unless there’s an election.”
Wasser adds that once the requirement comes to the attention of employers, they will most likely do their best to comply with it.
“The six-month transition period gives employers that time to make sure they follow the law in the way that it’s intended. Could there be instances where employers do not follow the law? Potentially, but there are enforcement mechanisms under the Employment Standards Act. If an employer is found not to be compliant in their obligation, I do believe there would be potential fines applicable.”