{"id":20303,"date":"2022-03-08T11:56:17","date_gmt":"2022-03-08T15:56:17","guid":{"rendered":"https:\/\/www.itworldcanada.com?p=475189"},"modified":"2022-03-14T13:03:23","modified_gmt":"2022-03-14T17:03:23","slug":"proposed-ontario-employee-electronic-monitoring-disclosure-law-may-help-firms-lawyer","status":"publish","type":"post","link":"https:\/\/technewsday.com\/staging\/proposed-ontario-employee-electronic-monitoring-disclosure-law-may-help-firms-lawyer\/","title":{"rendered":"Proposed Ontario employee electronic monitoring disclosure law may help firms: Lawyer"},"content":{"rendered":"<p>Ontario employers should use a broad definition of the term \u201cemployee electronic monitoring\u201d if they don\u2019t want to run afoul of proposed changes to provincial labour law, says a Toronto privacy lawyer.<\/p>\n<p>That, said Daniel Michaluk, is because there isn\u2019t a definition in the proposed act of &#8220;electronic monitoring&#8221;.<\/p>\n<p>\u201cIt will create issues for employers trying to implement this,\u201d predicted Michaluk, a partner in the Borden Ladner Gervais law firm who practices in privacy and cybersecurity law, unless the proposed legislation is amended in committee before being passed.<\/p>\n<p>Section 41.1.1 of the proposed <a href=\"https:\/\/www.ola.org\/en\/legislative-business\/bills\/parliament-42\/session-2\/bill-88\"  rel=\"noopener\">Bill 88 &#8212; known as the Working for Workers Act<\/a>, introduced last week, obliges any employer in the province with more than 25 employees to have a written policy explaining how and in what circumstances the firm electronically monitors employees. The policy also has to state how the data collected is used.<\/p>\n<p>To be safe, Michaluk said employers should assume the term includes data collected from a wide range of technologies: Standard endpoint data, data from endpoint detection and response (EDR) agents, data generated from mobile device management (MDM) applications, company-owned vehicle telematics, and, of course, network behaviour analytics and video surveillance footage. It could even include logging website traffic on a web server, he said.<\/p>\n<p>Note that mobile device management applications could cover not only company-owned devices but also employee-owned devices if that is mandated by the employer.<\/p>\n<p>Employers must provide copies of the policy to all employees, as well as to employees assigned by temporary help agencies<span style=\"color: #4d4f53;\"><span style=\"font-family: HelveticaNeueLTPro-Roman, Helvetica, Arial, sans-serif;\"><span style=\"font-size: small;\">.<\/span><\/span><\/span><\/p>\n<p>\u201cWhat\u2019s interesting is before the province created any legislation that governs privacy in the workplace, they created a more targeted piece of legislation,\u201d Michaluk said. The Conservative government of Doug Ford <a href=\"https:\/\/www.itworldcanada.com\/article\/proposed-ontario-privacy-law-could-include-multi-million-corporate-fines\/454860\"  rel=\"noopener\">has talked about bringing in a provincial private sector privacy law,<\/a> but no legislation has as yet been introduced.<\/p>\n<p>Among Canadian jurisdictions, only B.C., Alberta and Quebec have private sector legislation obliging firms to give notice to employees of the collection of personal information.<\/p>\n<p>Ontario employers shouldn\u2019t find the obligation onerous, Michaluk said. \u201cIt should be feasible to inventory of all these technologies without too much work and display them to employees. If we have mature systems for network security we should have inventoried this already.\u201d<\/p>\n<p>In fact, he said, it would be a matter of good data governance. \u201cWe ought to be governing our use of these technologies and more specifically the network [in the workplace] anyway.\u201d<\/p>\n<p>\u201cIf we don\u2019t have an immediate view of what data we\u2019re collecting across the network, let\u2019s go do that as a matter of governance. Forget compliance. Even disclosing that [to employees] is good governance because you\u2019re telling your users what\u2019s going on.<\/p>\n<p>\u201cThe real benefit is it may cause your users\u2019 behaviour to change. It may cause them to understand you\u2019ve got a network that records all sorts of data of users for legitimate uses and they should take their personal use of the network somewhere else.\u201d<\/p>\n<p><a href=\"https:\/\/www.blg.com\/en\/insights\/2022\/03\/ontario-introduces-electronic-monitoring-legislation\"  rel=\"noopener\">In a blog<\/a> Michaluk and an associate offered detailed advice to employers on the proposed legislation. For example, for security reasons, there\u2019s no need to disclose the software the company uses. To comply with the proposed law \u2013 unless it changes \u2013 employers could create a simple table like the one below:<\/p>\n<figure id=\"attachment_475198\" aria-describedby=\"caption-attachment-475198\" style=\"width: 620px\" class=\"wp-caption aligncenter\"><img loading=\"lazy\" decoding=\"async\" loading=\"lazy\" class=\"wp-image-475198 size-full\" src=\"https:\/\/i.itworldcanada.com\/wp-content\/uploads\/2022\/03\/Borden-Ladner-Gervais-graphic-Ontario-Bill-88-March-2022.jpg\" alt=\"Graphic from Canadian law firm describing how a company's electronic monitoring technology can be described \" width=\"620\" height=\"250\" srcset=\"https:\/\/i.itworldcanada.com\/wp-content\/uploads\/2022\/03\/Borden-Ladner-Gervais-graphic-Ontario-Bill-88-March-2022.jpg 620w, https:\/\/i.itworldcanada.com\/wp-content\/uploads\/2022\/03\/Borden-Ladner-Gervais-graphic-Ontario-Bill-88-March-2022-300x121.jpg 300w, https:\/\/i.itworldcanada.com\/wp-content\/uploads\/2022\/03\/Borden-Ladner-Gervais-graphic-Ontario-Bill-88-March-2022-150x60.jpg 150w\" sizes=\"auto, (max-width: 620px) 100vw, 620px\" \/><figcaption id=\"caption-attachment-475198\" class=\"wp-caption-text\">Source: Borden Ladner Gervais<\/figcaption><\/figure>\n<p>They also noted that electronic monitoring in Ontario is permissible unless there is an agreement with employees that forbids it.<\/p>\n<p>To meet the law, firms should update their hardware and software inventory, Michaluk said, as well as their acceptable use of corporate networks policies.<\/p>\n<p>The post <a href=\"https:\/\/www.itworldcanada.com\/article\/proposed-ontario-employee-electronic-monitoring-disclosure-law-may-help-firms-lawyer\/475189\">Proposed Ontario employee electronic monitoring disclosure law may help firms: Lawyer<\/a> first appeared on <a href=\"https:\/\/www.itworldcanada.com\/\">IT World Canada<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Disclosure should include a wide range of technologies, says a lawyer. But ultimately it could benefit firms by possibly changing risky behaviour of employees<\/p>\n<p>The post <a href=\"https:\/\/www.itworldcanada.com\/article\/proposed-ontario-employee-electronic-monitoring-disclosure-law-may-help-firms-lawyer\/475189\">Proposed Ontario employee electronic monitoring disclosure law may help firms: Lawyer<\/a> first appeared on <a href=\"https:\/\/www.itworldcanada.com\/\">IT World Canada<\/a>.<\/p>\n","protected":false},"author":17,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[21,361,16],"tags":[402,403,396,388],"class_list":["post-20303","post","type-post","status-publish","format-standard","hentry","category-emerging-tech","category-privacy","category-security","tag-dotgov","tag-ontario-government","tag-postmedia","tag-privacy-security"],"acf":[],"_links":{"self":[{"href":"https:\/\/technewsday.com\/staging\/wp-json\/wp\/v2\/posts\/20303","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/technewsday.com\/staging\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/technewsday.com\/staging\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/technewsday.com\/staging\/wp-json\/wp\/v2\/users\/17"}],"replies":[{"embeddable":true,"href":"https:\/\/technewsday.com\/staging\/wp-json\/wp\/v2\/comments?post=20303"}],"version-history":[{"count":1,"href":"https:\/\/technewsday.com\/staging\/wp-json\/wp\/v2\/posts\/20303\/revisions"}],"predecessor-version":[{"id":20304,"href":"https:\/\/technewsday.com\/staging\/wp-json\/wp\/v2\/posts\/20303\/revisions\/20304"}],"wp:attachment":[{"href":"https:\/\/technewsday.com\/staging\/wp-json\/wp\/v2\/media?parent=20303"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/technewsday.com\/staging\/wp-json\/wp\/v2\/categories?post=20303"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/technewsday.com\/staging\/wp-json\/wp\/v2\/tags?post=20303"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}