With the increasing integration of technology into all aspects of our daily lives, the issue of workplace privacy is becoming an important topic in unionized workplaces.

The Government of Ontario is seeking to address some of these issues with Bill 88, the Working for Workers Act, 2022 (“Bill 88”). Bill 88 received royal assent on April 11, 2022, and includes an amendment to the Employment Standards Act, 2000 (the “ESA”) requiring employers to implement a written policy with respect to electronic monitoring.

The introduction of this new requirement comes a year after Ontario Arbitrator Derek Rogers released his decision in IUOE, Local 793 and Earth Boring Co., Re, 2021 CanLII 42419 (ON LA), a case that provides an in-depth analysis of the privacy rights of unionized employees concerning monitoring and surveillance in the workplace. As technology continues to advance and new digital products are developed to assist employers with the administration of the work environment, it is evident that there is a correlated growth in concern over the privacy interests of employees expected to use such technology as part of their job duties. This begs the question, in what situations are employers permitted to use electronic monitoring and surveillance technology, and what legal limits must employers be mindful of when doing so?

Bill 88 

Ontario currently does not have any privacy legislation applicable to private organizations. While this may change in the near future (the Ministry of Government and Consumer Services published a whitepaper in 2021 outlining proposed privacy laws), Bill 88 is the most recent advance in provincial privacy law with respect to employment. Bill 88 introduced a new section of the ESA entitled “Written policy on electronic monitoring,” with the following requirements:

41.1.1 (1) An employer that, on January 1 of any year, employs 25 or more employees shall, before March 1 of that year, ensure it has a written policy in place for all employees with respect to electronic monitoring of employees.

Required information

(2) The written policy with respect to electronic monitoring must contain the following information:

1. Whether the employer electronically monitors employees and if so,
2. a description of how and in what circumstances the employer may electronically monitor employees, and
3. the purposes for which information obtained through electronic monitoring may be used by the employer.
4. The date the policy was prepared and the date any changes were made to the policy.
5. Such other information as may be prescribed.

Copy of policy

(3) An employer that is required under this section to have a written policy with respect to electronic monitoring shall provide a copy of the policy to each of the employer’s employees within 30 days from the day the employer is required to have the policy in place or, if an existing policy is changed, within 30 days of the changes being made.

Notably, this new section does not provide a definition of “electronic monitoring” for the purposes of this policy. This creates the risk that the definition may be interpreted broadly; however, subject to further guidance, it remains to be seen how employment standards officers will interpret and apply this definition when reviewing such policies.

As it stands, Bill 88 does not impose any limitations on the use of electronic monitoring and simply imposes an obligation to disclose any electronic monitoring being done. This may change, however, if the provincial government releases any further regulations or guidance.

For now, employers should simply be aware that the deadline for introducing this policy is October 11, 2022, and should consider what (if any) technology used in the workplace could be characterized as “electronic monitoring”, such that it must be disclosed in this policy.

The Collective Agreement

The first place any unionized employer should look to determine their ability to implement surveillance or electronic monitoring technology is the collective bargaining agreement between themselves and their employees’ union. The collective bargaining agreement establishes both the rights of the employer and the obligations of employees. While the argument can be made that the right to roll out electronic monitoring or surveillance software may fall within a standard management rights clause, other sections of a collective bargaining agreement may factor into an arbitrator’s analysis when determining if surveillance and/or electronic monitoring software may be introduced by the employer. For example, is there a clause in the collective bargaining agreement that limits employees’ abilities to use technology in the workplace, perhaps due to safety reasons?

Notably, Ontario arbitrators have recognized a common law right to privacy in the workplace, despite this right being lesser than an employee’s right to privacy outside of the workplace. As a result, an employee’s right to privacy may be “read-in” to the collective agreement, creating an implied right to privacy. This makes the addition of clear language with respect to privacy and/or electronic monitoring in the collective bargaining agreement even more important, as this may help resolve issues prior to a union seeking grievance arbitration.

Arbitral case law 

The issue of unionized employees’ privacy rights with respect to electronic monitoring in the workplace was front and center in Arbitrator Rodger’s decision in IUOE, Local 793 and Earth Boring Co., Re, [2021] 148 C.L.A.S. 372. This case provides valuable insight for employers who may be considering introducing new technology for the purposes of monitoring their employees.

In that case, the union brought a grievance challenging the employer’s introduction of third-party software called “ExakTime”. The purpose of the software was to take the place of paper timesheets and records. As described in the decision, the ExakTime software required employees to download the a mobile phone application (an “App”) onto their personal cell phones. Employees were then expected to use the App to clock in and clock out by taking a photo of themselves onsite and uploading it to ExakTime, which indicated the time and the geolocation at the time the employee clocked in or out.

The union raised a number of concerns with the use of this software, in particular:

• The ExakTime App made use of a “Geo Fence”, which allowed the employer to track the movements of employees within the specific boundaries of a worksite. The union was concerned about the App’s ability to track employees even when outside the Geo Fence;
• Data uploaded to ExakTime was retained by the employer indefinitely; and
• Data uploaded to ExakTime was stored on cloud servers and shared with third-parties.

The employer argued that the use of ExakTime was required in order to prevent “buddy punching” a practice whereby an employee punches in another employee’s time card when they are running late, resulting in time theft. However, at arbitration, the employer could not present any evidence of “buddy punching” occurring in its workplace. The employer also argued that the use of ExakTime significantly reduced its administration costs by hundreds of thousands of dollars.

The Arbitrator conducted an in-depth analysis of both the employer’s and the union’s arguments, and relied upon the Supreme Court of Canada’s analytical framework with respect to the exercise of management rights in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd. 2013 SCC 34, finding that:

“Determining reasonableness requires labour arbitrators to apply their labour relations expertise, consider all of the surrounding circumstances, and determine whether the employer's policy strikes a reasonable balance. Assessing the reasonableness of an employer's policy can include assessing such things as the nature of the employer's interests, any less intrusive means available to address the employer's concerns, and the policy's impact on employees.”

The Arbitrator drew the following conclusions, which may be instructive for employers considering the implementation of electronic monitoring/surveillance technology:

• An employer must demonstrate the presence of real security issues with appropriate evidence before implementing electronic monitoring or surveillance software;
• Security measures such as two-factor authentication and encryption of data in transit and in storage may reduce the severity a software technology’s intrusion into employee privacy;
• The length of time for which data is stored may either reduce or increase a software technology’s intrusion into employee privacy; and
• Whether or not the data is a) shared with third-parties and b) stored by third-parties may factor into how intrusive the technology is determined to be.

In sum, an employer must be able to demonstrate that a problem exists in the workplace that may be solved through the use of electronic monitoring/surveillance technology, and the use of such technology must be reasonably balanced against employee privacy interests, ideally by demonstrating that the electronic monitoring/surveillance technology is the least intrusive option available to the employer.

Ultimately, in this case, the grievances were upheld, and the employer was ordered to halt the use of ExakTime in its “current form”. The Arbitrator was not swayed that the employer actually had a problem that needed to be addressed due to the lack of evidence presented at arbitration and had serious concerns about ExakTime retaining employee data (including facial images) indefinitely, storing data on third-party servers, sharing data with third-parties, and tracking employees’ location outside of working hours.

This case may be contrasted with Agropur Division Natrel v. Teamsters, Local 647, 2008] O.L.A.A. No. 694, where Arbitrator Lorne Slotnick found that some evidence of “buddy punching” was good enough to justify the implementation of finger scanning technology in the workplace to combat this practice. Further, the Arbitrator found that the finger-scanning technology was minimally intrusive because the scan only captured “less than half a fingertip”, the scan was converted into a “template” (with the actual fingerprint data being immediately deleted), and the template data was stored on a secure server owned by the employer. The differences between this case and Earth Boring are vast, and employers should note in particular that only minimal evidence was required in this case due to the strength of the privacy and security measures implemented in tandem with the finger-scanning technology.

Some take-aways for unionized employers

• Employers with 25 or more employees in Ontario require a policy with respect to electronic monitoring by October 11, 2022.
• Before implementing any electronic monitoring or surveillance software, employers should review the collective bargaining agreement to determine if any sections pertain to or could arguably pertain to employee privacy or the use of surveillance technology in the workplace.
• Prior to investing in electronic monitoring/surveillance technology, employers should seek to understand the technology’s data practices such as how long data may be stored for, where data is stored, and what security measures are built into the technology.
• Employers should gather evidence of any workplace issue requiring the use of electronic monitoring/surveillance technology.
• Employers should seek a balance between mitigating a workplace issue and employee privacy and seek out the least intrusive solution to the issue at hand.

Related to this topic, Dentons Canada’s Employment and Labour group has developed a ready-to-use Ontario Electronic Monitoring Policy template, available for a flat fee. Click here to request a copy. For more information, please reach out to the author Russell Groves.