This article is a co-submission from Birmingham Consulting and Kissinger HR, in response to Ontario’s new requirements under the Working for Workers Act, 2022 to disclose electronic monitoring of employee activity.

For many employers, it makes sense to track high-value physical assets like vehicles, tools and other equipment, but the potential negative impact to company morale and the erosion of trust (not to mention the potential legal implications) are enough to dissuade most employers from monitoring staff activity. Birmingham Consulting has previously explored this topic in our Fall 2021 newsletter.

The new legislation removes the distinction between tracking of physical assets and tracking employee activity by requiring employers with 25 or more workers to be transparent about monitoring that could be tied to an employee.

“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.”

–  Monte McNaughton, Ontario’s Minister for Labour, Training and Skills Development

The intent of the Act seems to reinforce the Supreme Court of Canada’s 2012 decision that employees have an expectation of personal privacy even while using company assets: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/12615/index.do

We are strong advocates of personal privacy. But we expect that in the already complex world of cyber security, it will be difficult for companies to implement measures to monitor infrastructure and keep it secure AND meet the requirements of privacy acts and other legislation while ensuring that, in meeting the legislative requirements, an unintended checklist of steps to bypass security measures is not created.

Your Human Resources and Cyber Security teams will need to work together to craft the policies required by this legislation.