A Q&A with labour lawyer Howard Levitt about the rise of digital monitoring and the future of remote work
When remote work eclipsed office culture during the pandemic, employers were left wondering whether the people on their payroll were, in fact, working. Some turned to a sneaky solution: installing “tattleware,” or surveillance software, on employees’ devices to track their productivity and online activity. Since bosses had no obligation to inform employees that they were being watched, many workers remained oblivious to this monitoring. Now, a new law prevents employers from keeping their staff in the dark. As of October 11, Ontario companies with 25 or more employees must disclose their electronic monitoring policies in writing. Howard Levitt, a senior partner at the employment and labour law firm Levitt Sheikh, explains how the change will affect the future of work.
What exactly does this law mean for employers and employees?
It requires employers to disclose their digital surveillance to their employees. It doesn’t prohibit surveillance or limit it—it simply says they have to disclose it. Employers who were surreptitiously monitoring people’s keystrokes and internet use or tracking what websites their employees were visiting can no longer do so in secret. This way, employees can decide whether they’re comfortable with the ways they’re being surveilled and whether they want to keep working for that company. The law should also help employees make informed and intelligent decisions, like choosing what files or online searches they want to have on their work computers and what they don’t want to have on their work computers
It’s the consequence of Covid and remote work. Most businesses weren’t permitted to have employees working in the office during the pandemic. Then people got accustomed to working from home. In some cases, employees started saying, “I won’t keep working here if you don’t let me continue working remotely or on a hybrid basis.” Employers were flummoxed and wondered how they could know whether people were actually working when they were on the clock. So they began installing tattleware, which monitors what people are doing, and how much time they’re spending doing it, through their devices. As a result, some employers now have more information about what their employees are up to than they ever had through in-person supervision. Many employees didn’t know they were being watched—and, when they found out, they became quite resistant to the idea. This law is the government’s response to employees and advocacy groups who thought this kind of surveillance was far too intrusive.
Generally, through employee complaints, inspectors and fines. I don’t think there are many employers who want to be in contravention of the legislation.
I think it will depend on the state of the economy. Right now, the economy is very good for employees. The job market is hotter than it’s been throughout my career. In this environment, employees are more likely to push back against their employer and speak out about policies they don’t agree with. At the moment, I think there’s a good chance that employers would adjust or stop their monitoring practices before they’d risk losing employees. But the economy may not be so strong one year from now. Everybody’s forecasting a recession. If that happens, employees will be anxious to keep their jobs and less likely to push back against policies they don’t like.
I think there will be less surveillance, generally. Employers won’t want their employees to know what they’ve been up to, so they’ll just stop doing it or do it in a less egregious way, and therefore they’ll have less to disclose. Yet the opposite could also be true: maybe some employers hadn’t realized they were able to surveil workers, and this legislation might make them consider doing so. Tattleware companies could also start advertising their wares more aggressively because employers have suddenly become aware of this option. But I think that will be a marginal effect.
It could increase tensions. It could also make employees think they have other rights that they are not actually guaranteed. Canadians have very little in the way of privacy rights—our privacy laws are undeveloped compared to most European countries. Employers may now have to disclose their digital monitoring, but there’s still much they don’t have to disclose. They can keep all kinds of records about employees, including surveillance footage and files with complaints from people’s co-workers, without telling anyone.
Well, that’s actually the question: How permanent is remote work going to be? A lot of employers are either generally unhappy with work-from-home arrangements or suspicious that certain employees aren’t good at it and that it’s too tempting for some people to not be working. So employers are going to start ordering people back to work, and they’ve already started to do so. I don’t know that remote work will be as pervasive a year from now as it is today. It’s perfectly legal for an employer to say, “X works well from home, so I’m going to let them do that; Y and Z don’t, so I’m not going to let them do that.” Most employees in Canada have an overly broad definition of employer discrimination and often mistakenly view it as illegal. But employers can hire, fire, promote, or permit workers to work from home based on who is more productive or whom they like better.