Watching workers: a critical review of the law regarding electronic employee monitoring in non-unionized workplaces in Canada

Abstract

This thesis addresses the topic of electronic employee monitoring in non-unionized workplaces in Canada. Electronic employee monitoring is defined as including (1) the use of electronic devices to review and evaluate employees’ performance; (2) ‘electronic surveillance’; and (3) employers’ use of computer forensics. Detailed consideration is given to a variety of technologies, including computer, internet and e-mail monitoring, location awareness technologies (such as global positioning systems and radio frequency identification), as well as biometrics, and the developing case law surrounding these innovations. Analogies are drawn to the jurisprudence developing with respect to unionized workplaces and under statutory unjust dismissal regimes. This analysis leads to the conclusion that legislative reform is necessary, either through (1) the creation of parallel private sector privacy regimes, such as those in British Columbia and Alberta, mirroring existing federal legislation; (2) amendments to existing employment standards legislation; or (3) the enactment of a stand-alone surveillance statute.