Bill 88 addresses privacy monitoring at work

The Ontario government recently introduced Bill 88 addressing privacy monitoring in the workplace. If passed, the Working for Workers Act, 2022, will make several changes to employment law.

One of those changes will be an amendment to the Employment Standards Act that will require any employer of 25 or more people to have a written policy regarding electronic monitoring of employees.

The policy must include whether the employer electronically monitors employees. And if they do monitor, how, when, and why. The bill contemplates regulations with more detail.

Devices, machinery, vehicles

The privacy monitoring bill does not define electronic monitoring. It would include monitoring of any technology used by an employee — such as work PCs and networks. It would also include employee-owned devices such as mobile phones used for business purposes, or equipment used when working from home. It would include monitoring of vehicles and equipment driven by employees, and machinery operated by employees. Perhaps security cameras, as well.

These policies must be in place within 6 months after the bill receives royal assent.

Many businesses already have some form of technology or acceptable-use policy that addresses these issues. They do that in part to set an employee’s reasonable expectation of privacy for various reasons.

I have a concern about how this is being done. The monitoring policy portion of the bill is picking some low hanging fruit rather than dealing with the broader issue holistically

The broader issue is that there is a legislative privacy gap in Ontario. The Federal Personal Information Protection and Electronic Documents Act (PIPEDA) covers businesses regarding their customers. Ontario’s Personal Health Information Protection Act (PHIPA) covers personal health information. But there is no legislation in Ontario that governs the employer/employee relationship, charities, or political parties.

PIPEDA

Even though PIPEDA was enacted some two decades ago, the Province has never filled this gap. It strikes me that the better approach would be to fill that gap with some thoughtful privacy legislation, rather than rushing through a small piece of it.

If this bill becomes law, all Ontario employers of 25 or more people will have to implement a compliant policy. If they already have a technology or acceptable-use policy, they will have to review it to see if it complies or needs revisions. And consider whether that portion should be separated out or addressed differently.

If the employer does not have any relevant policies, they will have to create one. It would be a good idea at the same time to create a technology-use policy, as they are companion issues.

Stay tuned to see if this legislation gets passed in its current form before the election and whether we will see regulations that clarify how the policies need to be drafted.

David Canton is a business lawyer and trademark agent at Harrison Pensa with a practice focusing on technology, privacy law, technology companies and intellectual property. Connect with David on LinkedIn and Twitter.

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