Op-Ed: Bill 88 needs to go further to protect the privacy rights of workers

For many of us, the pandemic has changed how we work, blurring the line that used to exist between home and office.

It’s a radical shift that won’t be rolled back anytime soon. According to a recent Ipsos poll, only half of Canadians currently working from home expect to return to the office regularly in 2022.

As employees continue to log in to work from offsite locations, employers are seeking new ways of supervising and measuring the performance of their employees remotely. But using tools like productivity monitoring software can be incredibly privacy-invasive.

In Bill 88, the government has taken a laudable first step by introducing greater transparency in this area. If passed, the bill would require employers to tell their workers if, how, and in what circumstances they are being monitored electronically.

While telling workers what you’re doing is good, it doesn’t necessarily make it right.

From a privacy perspective, the proposed legislation doesn’t go far enough. Workplace surveillance methods should be used only for fair and appropriate purposes and only to the extent they are reasonably necessary to manage the employer-employee relationship.

Employee monitoring software or “bossware” as it’s sometimes called, has serious and far-reaching capabilities. It can monitor everything from our keystrokes and mouse clicks, to our emails and video calls. It can even analyze our facial expressions to interpret — and sometimes nudge — our emotions and behaviours.

There is also the ability to track employee movements and activities remotely through tools like GPS, telematics, wearables, digital health apps and biometric timekeeping software.

It’s the stuff of dystopian sci-fi movies. Things we never thought possible are being adopted in today’s workplace, raising serious concerns about the lack of privacy protection for Ontario employees.

Electronic workplace monitoring should ultimately be governed by a more comprehensive Ontario private sector privacy law, similar to what was boldly proposed last year in the government’s white paper on modernizing privacy in our province.

Employees should have a place to complain when their employer doesn’t comply with workplace monitoring policies and have recourse if they’re unduly harmed by them.

They should be able to challenge overly invasive policies and have them reviewed by an independent regulator with the power to encourage or impose course correction. This is especially important to ensure employers respect the privacy of a worker’s home and stop monitoring them after they have disconnected from work.

Perhaps some of these mechanisms could be addressed in future regulations to Bill 88, but many of them will require more dedicated attention in a standalone private-sector privacy law that Ontario workers need and deserve.

Working from home opens up exciting new opportunities for better work-life balance, but only as long as it doesn’t invade our private lives and spaces. In this new world, we must ensure that new workplaces — however defined — support real transparency, accountability, and protection of privacy.

Patricia Kosseim is Ontario’s Information and Privacy Commissioner.