Predicaments in Privacy: An update on privacy and surveillance technology in the workplace

Privacy has emerged as a key concern as remote and hybrid work have become more common. Indeed, research from Queen’s University confirms that the pandemic has accelerated the use of several forms of digital surveillance, and privacy experts have repeatedly stated that current privacy law is ill-suited to regulate technologies that were inconceivable when existing privacy legislation was enacted. In this webinar, experts will discuss how governments are responding to criticism of existing privacy regimes and how adjudicators are balancing employees’ privacy rights and employers’ legitimate business interests at this time of profound technological and societal change.

• How will the Ontario Court of Appeal’s recent decision in Elementary Teachers Federation of Ontario v. York Region District School Board affect adjudicators’ assessments of employees’ reasonable expectations of privacy in personal information (such as personal emails or documents stored in the cloud) accessed through employer-owned devices?
• What should employers include in the policies regarding electronic monitoring of employees that they are required to prepare by October 11, 2022, under Bill 88’s recent amendments to Ontario’s Employment Standards Act?
• Are the Bill 88 amendments to Ontario’s Employment Standards Act a meaningful step towards addressing privacy concerns raised by the accelerated use of digital surveillance in the employment context?
• How does the federal Digital Charter Implementation Act, 2022 (Bill C-27) differ from the former Bill C-11 tabled in 2020? If enacted, how will it affect the use of electronic monitoring and artificial intelligence in the employment relationship?
• Is Ontario’s recently re-elected government likely to enact private sector privacy legislation in the near future? If so, what are likely to be the key features of such legislation, and how would it affect privacy in the employment relationship?
• How do proposals for private sector privacy legislation in Ontario and the federal government’s proposed “Digital Charter” compare with existing provincial private sector privacy legislation and proposals to amend such legislation in Alberta and British Columbia?
• Do proposed changes to privacy laws adequately address the criticism that existing privacy statutes, with their emphasis on notice and consent, are inadequate to deal with the reality of mass data collection and analysis?
• Do provisions requiring transparency in automated decision making systems in Quebec’s recently enacted Bill 64, or the federal Digital Charter Implementation Act, 2022, adequately address union and worker concerns about algorithmic management?
• Given the explosion in remote and hybrid work and recent trends in privacy law, what balance will arbitrators strike between employees’ right to privacy in their own homes and employers’ interests in supervising employees working from home?