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By Howard Levitt and Kathryn Marshall

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Last week, Ontario Labour Minister Monte McNaughton announced that the province would soon be tabling legislation requiring businesses to inform their employees if they are being recorded or tracked.

It is the first legislation of its kind in Canada, but likely won’t be the last. The country frequently looks to Ontario to lead the way on labour reforms and often follows suit.

This announcement has been welcomed by many but has also been an eye opener to people who didn’t realize just how little workplace privacy they actually have. Canadians often have an almost inchoate sense that they are entitled to privacy and that the law protects that. It doesn’t.

Employees often ask: how much privacy do they really have in the workplace? The answer has always been: almost none. This does not mean that your employer gets to be big brother and know your every move. But your employer does have a right to know what you are doing on company time and how you are using company resources. Typically, the questions we would frequently get about workplace privacy were from employees concerned about whether their boss could see their questionable browser search history. By the way, as a rule, don’t search anything on your work computer that you don’t want your employer knowing about! Employees can be fired for that — and for cause without severance.

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The pandemic has changed things monumentally with respect to workplace privacy. The issue has all of a sudden become top of mind for people who in the “before times” never gave it more than a passing thought.

The reason of course is because many people have gone from working in their employer’s office to working from the privacy and sanctuary of their homes. Often, people are working in the same room as their children or partner. Or spending their days on Zoom meetings from their bedroom or kitchen. People are not used to being on video all day and giving their employer and colleagues such a large and unfiltered window into their private lives.

Similarly, employers are not accustomed to having their employees not actually in the office and being unable to see what they are doing and where they are.

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Concerns about the electronic monitoring of employees, and whether Zoom calls are being secretly recorded and keystrokes tracked, have mounted exponentially. These days, it is not unreasonable to be fearful that your employer or colleague may be recording a Zoom meeting where you were, perhaps, a bit more candid than you should have been. Or perhaps your child was running around in the background, or you forgot to hit mute and had a private discussion on camera with your spouse. Or even worse, the nightmare of all scenarios, your camera was running and you didn’t realize it.

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How could we forget the unfortunate incidents (yes, plural) last year where Liberal MP William Amos was caught on Zoom during virtual sessions of the House of Commons. In one incident, he was naked after changing his clothes following a run. In another incident, he relieved himself on camera. Images spread like wildfire in the media because the Zoom sessions were captured electronically. This is obviously an extreme example, but you get the point.

The Ontario government’s hope is that this new legislation will create more transparency and protections around worker privacy. The law will apply only to businesses with 25 or more employees and requires that they have a written policy on electronic monitoring of staff. So, if your employer tracks your keystrokes or records Zoom calls, it needs to disclose this in a policy and be transparent and upfront about it. The legislation also requires that employers inform employees how the data it collects will be used. For example, if your employer is tracking the time you spend online during the day, you will be entitled to know if this information will be used for the purpose of a performance evaluation.

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This new law won’t mean that your employer cannot monitor you or check your browser history. It still can. The difference is that your employer will need to tell you about it before it does so. That way, if you are uncomfortable with the extent of the intrusion, you can discuss it with your employer or decide to work elsewhere. More transparency is always a good thing, especially when it comes to privacy.

Of course, this new law does nothing to safeguard against Zoom faux-pas. That just comes down to common sense and discretion.

Got a question about employment law during COVID-19? Write to Howard at info@levittllp.com.

Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada. Kathryn Marshall is a partner at Levitt Sheikh.