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With AI, workplace surveillance has 91Ƶskyrocketed91Ƶ91Ƶleaving Canadian laws behind

Employee surveillance can look like a warehouse worker with a mini-computer on their arm
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Employee surveillance technology, now turbocharged thanks to artificial intelligence, is being deployed—leaving Canadian laws to play catch up. Remote controlled cameras mounted on a pole are shown at the CANSEC trade show, in Ottawa, on Wednesday, May 31, 2023. THE CANADIAN PRESS/Justin Tang

Technology that tracks your location at work and the time you91Ƶre spending in the bathroom. A program that takes random screenshots of your laptop screen. A monitoring system that detects your mood during your shift.

These are just some ways employee surveillance technology 91Ƶ now turbocharged, thanks to the explosive growth of artificial intelligence 91Ƶ is being deployed.

Canada91Ƶs laws aren91Ƶt keeping up, experts warn.

91ƵAny working device that your employer puts in your hand, you can assume it has some way of monitoring your work and productivity,91Ƶ said Valerio De Stefano, Canada research chair in innovation law and society at York University.

91ƵElectronic monitoring is a reality for most workers.91Ƶ

Artificial intelligence could also be determining whether someone gets, or keeps, a job in the first place.

Automated hiring is already 91Ƶextremely widespread,91Ƶ with nearly all Fortune 500 companies in the United States using AI to hire new workers, De Stefano said.

Unlike traditional monitoring, he added, AI is making 91Ƶautonomous decisions about hiring, retention and discipline91Ƶ or providing recommendations to the employer about such decisions.

Employee surveillance can look like a warehouse worker with a mini-computer on their arm that91Ƶs tracking every movement they make, said Bea Bruske, president of the Canadian Labour Congress.

91ƵThey91Ƶre building a pallet, but that particular mini-computer is tracking every single step, every flick of the wrist, so to speak,91Ƶ Bruske said.

91ƵThey know exactly how many boxes are being placed on that pallet, how much time it91Ƶs taking, how many extra steps that worker might have taken.91Ƶ

There is little data documenting how widespread AI-powered worker surveillance might be in Canada. Unless employers are up front about their practices, 91Ƶwe don91Ƶt necessarily know,91Ƶ Bruske said.

In a 2022 study by the Future Skills Centre, the pollster Abacus Data surveyed 1,500 employees and 500 supervisors who work remotely.

Seventy per cent reported that some or all aspects of their work were being digitally monitored.

About one-third of employees said they experienced at least one instance of location tracking, webcam or video recording, keystroke monitoring, screen grabs or employer use of biometric information.

91ƵThere is a patchwork of laws governing workplace privacy which currently provides considerable leeway for employers to monitor employees,91Ƶ the report noted.

Electronic monitoring in the workplace has been around for years. But the technology has become more intimate, taking on tasks like listening to casual conversations between workers.

It91Ƶs also become easier for companies to use and more customized to their specific needs 91Ƶ and more normalized, said McGill University associate professor Renee Sieber.

De Stefano said artificial intelligence has made electronic monitoring more invasive, since 91Ƶit is able to process much more data and is more affordable.91Ƶ

91ƵEmployer monitoring has skyrocketed91Ƶ since AI has been around, he added.

Those in the industry, however, insist there91Ƶs also a positive side.

Toronto-based FutureFit AI makes an AI-powered career assistant, which CEO Hamoon Ekhtiari said can help individuals navigate workplaces that are being rapidly changed by the technology.

AI can look for jobs, give career guidance, look for training programs or generate a plan for next steps. In the hiring process, it can give applicants rapid feedback about gaps in their applications, Ekhtiari said.

As artificial intelligence permeates Canadian workplaces, legislators are making efforts to bring in new rules.

The federal government has proposed Bill C-27, which would set out obligations for 91Ƶhigh-impact91Ƶ AI systems.

That includes those dealing in 91Ƶdeterminations in respect of employment, including recruitment, referral, hiring, remuneration, promotion, training, apprenticeship, transfer or termination,91Ƶ said Innovation Minister François-Philippe Champagne.

Champagne has flagged concerns AI systems could perpetuate bias and discrimination in hiring, including in who sees job ads and how applicants are ranked.

But critics have taken issue with the bill not explicitly including worker protections. It also won91Ƶt come into effect immediately, only after regulations implementing the bill are developed.

In 2022, Ontario began requiring employers with 25 or more employees to have a written policy describing electronic monitoring and stating for what purposes it can use that information.

Neither the proposed legislation nor Ontario law 91Ƶafford enough protection to workers,91Ƶ De Stefano said.

Activities like reading employee emails and time tracking are allowed, as long as the employer has a policy and informs workers about what91Ƶs happening, he added.

91ƵIt91Ƶs good to know, but if I don91Ƶt have recourse against the use of these systems, some of which can be extremely problematic, well, the protection is actually not particularly meaningful.91Ƶ

Ontario has also proposed requiring employers to disclose AI use in hiring. If passed, it would make the province the first Canadian jurisdiction to implement such a law.

Provincial and federal privacy laws should offer some protections, in theory. But Canada91Ƶs privacy commissioners have warned that existing privacy legislation is woefully inadequate.

They said in October 91Ƶthe recent proliferation of employee monitoring software91Ƶ has 91Ƶrevealed that laws protecting workplace privacy are either out of date or absent altogether.91Ƶ

Watchdogs in other countries have been cracking down. In January, France hit Amazon with a $35-million fine for monitoring workers with an 91Ƶexcessively intrusive system.91Ƶ

The issue has also been on the radar for unions. The Canadian Labour Congress isn91Ƶt satisfied with Bill C-27, and employees and their unions have not been adequately consulted, Bruske said.

De Stefano said the government should 91Ƶstop making the adoption of these systems the unilateral choice of employers91Ƶ and instead give workers a chance to be fully informed and express their concerns.

Governments should be aiming for something that distinguishes between monitoring performance and surveillance, putting bathroom-break timing in the latter category, Sieber added.

A case could be made to ban some technologies outright, such as 91Ƶemotional AI91Ƶ tools that detect whether a worker in front of a computer screen or on an assembly line is happy, she said.

Emily Niles, a senior researcher with the Canadian Union of Public Employees, said AI systems run on information like time logs, the number of tasks completed during a shift, email content, meeting notes and cellphone use.

91ƵAI doesn91Ƶt exist without data, and it91Ƶs actually our data that it is running on,91Ƶ Niles said.

91ƵThat91Ƶs a significant point of intervention for the union, to assert workers91Ƶ voices and control over these technologies.91Ƶ

Anja Karadeglija, The Canadian Press

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