Organizations across Canada have increasingly turned to surveillance technologies during the pandemic as a way to monitor their employees’ work behaviour.

Emerging digital innovations, including those used to collect sensitive biometric information like eye movements, facial muscles and tone of voice, are under growing scrutiny as remote work models are predicted to endure.

“This current entrenchment of worker surveillance is partially a consequence of cheaper and more available surveillance technology,” says Vass Bednar, executive director of the McMaster University’s Master of Public Policy and Digital Society program.

She was speaking at an event, hosted by the Cybersecure Policy Exchange at Ryerson University, which released its Workplace Surveillance and Remote Work report in October 2021. As it stands, there are few studies that examine workplace surveillance in Canada. This research builds on pre-existing findings and explores the impacts amidst COVID, revealing gaps and opportunities in the post-pandemic workplace.

Joe Masoodi, senior policy analyst at the Cybersecure Policy Exchange and lead author of the report, says AI-driven technologies could lead to bias treatment, yet empirical research on impacts to marginalized and vulnerable communities is significantly lacking. “There’s also little in-depth research on the cybersecurity risks posed by surveillance technologies, despite the steep increase in cyber attacks on workplaces since the beginning of the COVID-19 pandemic.”

A growing appetite to surveil

Companies like Hubstaff, Sneek, Prodoscore and TransparentBusiness reported an increase in customers between 400 and 600 per cent from March to June 2020. Emerging technologies, specifically AI-driven, are ushering in new ways to surveil, track employee behaviours and measure performance. Health data is also being monitored to track compliance with COVID-19 safety measures, such as social distancing.

This takes a toll on employee morale. Workers who perceive higher levels of on-the-job surveillance were found to exhibit more negative attitudes towards such measures. “And because there’s a power imbalance between employers and employees, that typically favours employers, workers may agree to surveillance measures in order to avoid potential consequences that a refusal may bring, such as retaliation or joblessness,” says Masoodi.

Closely monitoring employees is nothing new. Peggy Nash, chair of the advisory committee at the Centre for Labour Management Relations, says that as technology evolves, motives among managers remain consistent: to increase control, monetize data and capitalize on the information it brings.

“Technology is neutral,” she says. “It’s people who decide which technology is going to be used and how it’s going to be used. And for the most part, it is employers that decide. In many workplaces, workers have zero input, zero control.”

Privacy priorities

There are challenges with current employee privacy protections—a key message reverberating through the report. As Bednar says, despite employment standards that dictate vacation time, sick days and the hours one works, there is no labour legislation that protects people from technologies that automate tasks and “force an unhealthy pace of work” through algorithmic manipulation.

Technology is relying more on granular forms of data collection linked to AI and other analytics tools, such as emotion monitoring software to measure employee productivity, which is rife with potential gender and race biases.

Such technology is also creeping into homes as the border between work and personal life blurs, evidenced mainly through personal devices and networks for work-related activity.

“Canada’s current legal framework with respect to workplace surveillance provides employers with considerable leeway to surveil employees, so long as the surveillance is linked appropriately to employers interests and goals,” says Masoodi.

To make sure that workplace surveillance does not go beyond what is reasonable and appropriate, private sector employers will need guidance in the post-pandemic workplace to develop better policies on how such technologies are used remotely and in-person, he adds.

Greater regulatory enforcement is also crucial. As it stands, the Office of the Privacy Commissioner (OPC) is not able to issue final binding orders of compliance or levy fines, even if it finds the entity in question has violated the provisions or principles set out in the federal Privacy Act or the Personal Information Protection and Electronic Documents Act [PIPEDA].

Unlike powers given to data protection authorities in the UK and Australia, the OPC doesn’t have the ability “to proactively inspect the practices of private sector organizations, in the absence of a complaint or open investigation.”

Organizations must balance the valid business interests of the company with employees’ reasonable expectations of privacy.

Jessica Kearsey, partner at Deloitte Legal Canada, says the legal language around privacy in the workplace, may be moving away from this “balancing of interests” to more of a human rights framework, as technology grows more omnipotent—extending beyond its original intent to the detriment of employees.

For instance, existing literature on the topic of ‘function creep’ shows how data collected about workers for one objective can be repurposed for other, more discriminatory uses.

In November 2020, the federal government proposed Bill C-11 as one concrete step towards privacy law reform. It would enact the Consumer Privacy Protection Act (CPPA) and repeal parts of PIPEDA that concern protecting personal information.

Bill C-11 would also create the Personal Information and Data Protection Tribunal, which would both hear appeals of certain decisions from the OPC and impose penalties for the violation of certain provisions of the CPPA. The industry is hailing these changes as a step forward.

And there is also much to smooth out. After reviewing the legislation, the OPC stated that the provisions of the bill would actually give individuals less control; for instance, penalties would “not apply to the most common and frequent violations of the proposed CPPA related to consent.”

Empower or deprive?

Besides the intrusive nature of surveillance, some have argued for its potential to detect burnout, thus empowering workers and resulting in wellness initiatives.

“I think technology can be very useful for both employers and employees, depending on context,” says Kearsey, pointing to high-risk workplaces with little supervision, such as the night shift on a 911 dispatch where PTSD is a known reality. As just one “part of the puzzle” to help flag safety issues, consulting with employees and a union on how to best use the technology is key, along with conversing with workers to understand the context behind the burnout, which extends beyond a particular shift.

Kirstie Ball, professor of management at the University of St. Andrews, in the U.K., says autonomy figures highly into how surveillance and empowerment intersect, if employees are given more control as technology intensifies.

Allow workers the ability to “opt out without being socially stigmatized for doing so,” she explains, and give them access to their performance data, so they can analyze and choose what the development needs are, in turn, offering those opportunities to them.

Also crucial is inviting workers to question and participate in “ethically robust policies that govern surveillance,” and negotiating with them to create agreement over what was surveilled.

Within larger organizations fraught with invasive technology and non-unionized workers, Nash observes that it is still difficult to imagine surveillance as empowering.

While technology can make work more comfortable and easier, for instance, automation in place of back-breaking work, it is often “one-sided and negatively perceived outside of personal security situations.”

“It’s difficult to imagine positive scenarios, but there ought to be,” says Nash, adding that the development of technology, often funded by public dollars and capitalized by the private sector, should be used for the public good.

“And so much technology, generally, is used for the public good in medicine and vaccine production,” she notes. “But I think when it comes to surveillance, I struggle to see too many opportunities for positivity, from the perspective of workers.”

To access the full Workplace Surveillance and Remote Work report visit the Cybersecure Policy Exchange at https://www.cybersecurepolicy.ca/reports.