Ontario is proposing new legislation that would require employers to inform their employees about any electronic monitoring of their work activities.
Bill 88 would introduce a new element to the Employment Standards Act, 2000 (the ESA), titled “Written Policy on Electronic Monitoring.” If passed, it would require that, “employers be transparent on how employees’ use of computers, cellphones, GPS systems and other electronic devices are being tracked.”
It should be noted that federal legislation already exists, called the Personal Information Protection and Electronics Documents Act. It is quite comprehensive and sets out how private sector organizations may collect, use and disclose personal information in the course of their commercial business activities.
British Columbia, Alberta and Quebec have largely mimicked key elements of the federal act under their own statutes. However, Ontario had not to this point enacted its own electronic monitoring or privacy legislation.
In his ministry’s news release announcing the proposed Bill 88, Monte McNaughton, Ontario’s minister of labour, training and skills development, appears to target technology used across a wide range of industries.
“Whether you are a delivery person being followed by GPS, a construction worker using a company phone, or an office worker logging in from home, you deserve to know if and how you are being tracked.”
While the outline provided is quite broad, it clearly attempts to break new ground by placing specific obligations on employers.
“Employers with 25 or more workers will be required to have a written electronic monitoring policy in place for all their employees. 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. In addition, the employer would need to disclose the purpose of collecting information through electronic monitoring.”
McNaughton has been effusive in his description of Bill 88, calling it the “first of its kind in Canada,” and suggesting it “breaks new ground” and is therefore “historic.”
Daniel Michaluk, cybersecurity expert and partner with Borden Ladner Gervais, agrees for the most part.
“I think the legislation is unique. I don’t think there is similar legislation across Canada,” he told the Daily Commercial News.
Given the proliferation of monitoring devices available and commonly used in the construction industry, the requirements under Bill 88 might seem daunting at first glance for those operating in Ontario.
For example, many construction sites have installed surveillance cameras to deter theft, vandalism and racist messages, as well as to improve workplace safety. Aerial drones equipped with cameras are used to collect data, assess project progress and inspect workmanship. Small devices worn on wrists, helmets and even in footwear are available to ensure workers are performing in their assigned site areas. All these devices and techniques are in addition to the computer, GPS and phone tracking to which McNaughton vaguely refers in his announcement.
Where does this leave a construction company or project manager in terms of developing policies that will comply with the proposed legislation?
“The term ‘electronic surveillance’ is somewhat amorphous,” says Michaluk. “You are supposed to read the statutes purposely and in a manner that supports protection of the rights that are at issue in the legislation. Therefore, I would read it broadly and when in doubt include it.”
At the same time, Michaluk suggests employers don’t go overboard either. He adds some employers may already have policies in place that might be sufficient or can be simply expanded.
“Policies may become meaningless if employers put in eight pages of documents in an effort to include everything they use. Aim for meaningful, concise, easy-to-understand information, and try to strike a balance between too little and too much. If you run into problems, get legal advice.”
In any case, if Bill 88 is passed as proposed, employers will have six months to put their policies in place, plenty of time to consult with their employees and outside advisers if need be.
John Bleasby is a Coldwater, Ont.-based freelance writer. Send comments and Legal Notes column ideas to editor@dailycommercialnews.com.
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