Privacy commissioner urges Ontario government to amend proposed electronic monitoring legislation

The Information and Privacy Commissioner of Ontario has called on the provincial government to amend proposed legislation concerning the electronic monitoring of employees in the province by their employers. 

On Feb. 24, the provincial government introduced Bill 88, requiring employers with 25 or more employees to develop and publish an internal electronic monitoring policy. The policy must set out whether, how, in what circumstances and why the employer electronically monitors its employees. 

In a letter addressed to Standing Committee on Social Policy Chair Natalia Kusendova, Commissioner Patricia Kosseim sought amendments to the bill to require employers to furnish her office with a copy of their electronic monitoring policies to ensure transparency and protection of employees’ privacy.

“Since Bill 88 already requires these employers to have and retain such a policy, the obligation to provide a digital copy to my office would create minimal extra burden,” Kosseim wrote. “Yet this small incremental measure could significantly enhance organizations’ levels of transparency and accountability.”

In addition, Kosseim asked the government to amend the bill to authorize her office to examine electronic monitoring policies, identify emerging trends, provide education and best practices, and periodically report to the legislature on matters relating to the state of privacy of employees in the province.

“This proposed amendment would lead to a body of knowledge that could help Ontarians, employers, and lawmakers choose a wise path forward amid new technological possibilities and evolving work arrangements,” Kosseim wrote. “It could also help inform the development of future regulations under the bill.”

Moreover, Kosseim noted that the government should include a provision stating that no law, contract, or condition of employment could prevent both employers and employees from sharing, discussing, or consulting on the contents of their electronic monitoring policies with her office.

“Otherwise, a law meant to bring electronic workplace surveillance practices to light could be frustrated by countervailing attempts to keep them secret,” Kosseim wrote.