This has been further compounded by the surge in work from home arrangements, as employers are increasingly concerned about how (and whether!) their employees are working when out of view.
It started with some businesses recording telephone calls within their systems and with the installation of external video cameras / CCTV, on business premises. However, monitoring has since progressed to include cameras inside the workplace, GPS in mobile phones, automatic recording of mobile telephone conversations, monitoring remote work through digital systems, biometrics and facial recognition, GPS monitoring of vehicles, as well as the recording and storing of that information.
Some have criticised that in the wake of such rapid technological advancement, the law has had little time to adapt and is being left behind. It would be challenging for an employee to establish grounds that satisfy the claims available in the Employment Relations Act 2000, and less challenging for an employer to provide plausible reasons to justify its use. The common law approach has historically favoured an employer’s right to conduct business as they see fit over the rights of employees when it comes to privacy.
There are some restrictions on employers in New Zealand, and electronic monitoring is mainly (but not exclusively) regulated by the Privacy Act 2020. This is principle-based legislation overseen by the Privacy Commissioner, who provides excellent guidance on the use of some of these systems, for example CCTV. The Privacy Act stipulates that the means of collecting information should be fair and not be unreasonably intrusive. This became particularly relevant during lockdown in situations where some employers were requiring laptop cameras to be on during working hours, even in the employee’s own home. Nevertheless, the application of these monitoring systems has become so prevalent that it gives the appearance of being completely unrestrained. Worse, it is not clear whether employees know the extent of the monitoring, what is happening to the information, or even that they are being monitored at all despite some fairly clear information privacy principles requiring employers to ensure their employees are aware.
In Canada, Ontario has taken a different path to address these concerns, passing new laws and amending existing statutes in Bill 88 earlier this year to create prescriptive requirements.
While these legislative changes do not apply in New Zealand, Ontario has taken the lead on issues in the employment context, including those surrounding electronic monitoring, from which we may glean further insight. The most interesting changes are outlined below, with our comment.
Electronic Monitoring Policy Requirements
Bill 88 amends the Ontario Employment Standards Act 2000 to require employers with 25 or more employees to have a written policy on the electronic monitoring of its employees.
Electronic monitoring policies must include:
- Whether the employer electronically monitors employees, and if so, a description of the monitoring, the circumstances in which monitoring will occur, and the purposes for which the information may be used;
- The date the policy was prepared and any changes made to the policy; and
- Any further information prescribed by the government.
In the New Zealand context, much of the above information is available to an employee under the Privacy Act 2020. The Privacy Act 2020 may also require employers to disclose to employees that information is being collected, how it is being collected, how it is being stored, and how secure it is. However, the rights afforded under the Privacy Act 2020 may not capture all information obtained by an employer through its use of electronic monitoring, and the guidelines are not prescriptive. It is also unclear how widely understood these rights are by employers or employees.
By contrast, Bill 88 goes a few steps further to enhance transparency, create positive disclosure obligations, and ensure employees understand how their movements and actions are being monitored electronically. It does highlight potential areas for improvement in respect of New Zealand’s own legislation.
If you have any questions about employee rights and employer obligations in the New Zealand context, please get in touch with our Employment Team or your usual contact at Hesketh Henry.
Disclaimer: The information contained in this article is current at the date of publishing and is of a general nature. It should be used as a guide only and not as a substitute for obtaining legal advice. Specific legal advice should be sought where required.