Electronic Monitoring Policies in the Workplace
Artificial intelligence programs are being used more and more to monitor worker performance both remotely and in person. As a worker, you should know what legal protections you have from the use of artificial intelligence in the workplace. In 2022, the Ontario government add new provisions on electronic monitoring to the Employment Standards Act. Consequently, an employer with 25 or more workers must provide their workers with a written policy on electronic monitoring in the workplace. Additionally, the written policy must include a description of both how and in what circumstances the employer monitors workers, while also detailing for what purpose the information obtained through the electronic monitoring will be used. In other words, the use of artificial intelligence to monitor workers in the workplace must be made clear to workers through the written policy. Whether artificial intelligence programs can be used to determine who should be fired depends on the specific details of the electronic monitoring policy.
The ESA limitations around electronic monitoring do little more than ensure that workers know they are being electronically monitored and for what reasons. While it may seem like employers have very little restrictions regarding what sort of policies they can make under the ESA’s electronic monitoring requirements, previous cases have established certain limitations for workplace policies. In Lumber & Sawmill Workers’ Union, Local 2537 v KVP Coal Ltd., (KVP), rules regarding acceptable workplace policies were established. In KVP, it was held that workplace policies must be:
- Reasonable,
- Clear and unequivocal,
- Brought to the worker’s attention before the company acts on the policy,
- Consistently enforced since it was introduced.
Additionally, workers must be informed that policy breaches can result in discharge if the rule is otherwise a foundation for discharge. In other words, workplace policies must be reasonable and clear, and employers must inform workers about these policies in addition to any consequences that may result from breaches before the policy can be used for discipline or termination. Unreasonable workplace policies are not acceptable, including unreasonable electronic monitoring policies. The issue then revolves around whether the established workplace policy is unreasonable.
Unreasonable Workplace Policies
Unreasonable workplace policies, especially concerning monitoring and termination, were addressed in Woodstock (City) and Woodstock Professional Firefighters’ Assn. (Video Surveillance), Re, (Woodstock). In Woodstock, it was determined that surveillance in the workplace must be balanced against the workers’ limited privacy rights. In other words, Woodstock indicates that an employer’s desire to monitor workers must be balanced against the workers’ interests to maintain their own privacy. If electronic monitoring is used to monitor workers, Woodstock holds that it must be done in proportion to the workers’ privacy interests and actual business concerns, including security risks. Surveillance with no connection to the business’ interests would be unreasonable, as would surveillance that infringes too much on workers’ privacy. Consequently, if artificial intelligence is used to monitor workers, it must be done in response to actual business concerns, and balanced against workers’ privacy interests otherwise it may not be reasonable.
In Canadian Union of Postal Workers v Foodora Inc. d.b.a. Foodora, (Foodora), artificial intelligence software used by Foodora to monitor worker performance was left unchallenged. Instead, taken as a given, such artificial intelligence was seen as a norm within the industry. In Foodora, the artificial intelligence program that electronically monitored the workers collected performance indicators and was used to discipline workers based on their recorded conduct. In some instances, Foodora workers were even terminated based on data collected by the artificial intelligence program. Consequently, so long as there is an established and reasonable workplace policy, the use of electronic monitoring to measure workers’ performance to discipline and even terminate them has currently been accepted in Ontario.
Can Artificial Intelligence be used to Terminate Workers?
Electronic monitoring can be used for a variety of things, like measuring worker performance and administering discipline, and can even be used to terminate workers. Worker dismissal is complex, and takes two main forms: Termination for cause, and Termination without cause. The ESA outlines basic entitlements for termination without cause, which can occur at any time in Ontario so long as workers are given reasonable notice or pay in lieu of notice. However, as outlined in R v Arthurs,if an employer terminates a worker for cause, they must demonstrate that the worker was:
- Guilty of serious misconduct,
- Habitually neglectful of their duty,
- Incompetent,
- Disobedient of the employer’s reasonable orders,
- Engaged in conduct incompatible with the workers’ duties; or,
- Engaged in conduct prejudicial to the employer’s business.
Within the context of reasonable workplace policies, as established in KVP and Woodstock, it is possible that an electronic monitoring policy complies with the ESA requirements while being used to monitor workers’ job performance and general conduct on the job. While electronic monitoring policies may be challenged on the grounds of workers’ legitimate privacy interests at work, it is also possible for the workplace policy to adhere to legitimate business interests and address actual concerns regarding security risks or worker performance. As in Foodora, electronic monitoring can be used to collect information regarding worker performance, administer discipline, and even terminate workers. In short, if an employer uses artificial intelligence to dismiss workers, they must comply with the ESA requirements on electronic monitoring policies, the standards for reasonability outlined in KVP and Woodstock, and the circumstances outlined in R v Arthurs surrounding termination for cause. If you have any questions or need further information, please don’t hesitate to contact us.