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Employees are concerned about workplace surveillance. They are missing the point. What they should be concerned about is the delegation of management to algorithms.

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When TD Bank announced it would begin monitoring employees’ digital activity during the workday — tracking browser usage, messaging platforms and other applications — the backlash was immediate. Critics called it Orwellian. Employees complained they were being treated like children. Privacy advocates warned of “Big Brother.”

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But everyone is arguing about the wrong issue.

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And it isn’t a legal one, since employers in Canada are largely allowed to monitor their employees.

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The real issue is what happens when artificial intelligence begins making employment decisions based on what it observes.

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That is a far more profound — and far more dangerous — development.

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After decades practising employment law, I have lost count of the number of employees who have confidently told me, “My employer had no right to look at my computer.”

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My response is usually disappointing.

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If the computer belongs to your employer, if the network belongs to your employer and if you are being paid to work, your expectation of privacy is considerably lower than most imagine.

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The Supreme Court of Canada has recognized that employees retain some limited privacy interests on workplace computers, but those interests are significantly reduced, or arguably extinguished, when employers have clear policies reserving the right to monitor their systems.

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Most large employers do.

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Ontario’s electronic monitoring legislation has done little to change that reality. Companies with 25 or more employees must disclose whether they electronically monitor their workers and describe the circumstances in which they do so.

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That sounds like meaningful protection.

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It isn’t. The law requires disclosure, not restraint.

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An employer may lawfully tell employees that their emails, internet activity, Teams messages, swipe-card entries, GPS location on company vehicles and periods of keyboard inactivity are all being monitored. Having disclosed that, the legislation imposes remarkably few substantive limits.

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Employees often confuse notice and consent. The law does not.

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Nor, for that matter, should employers mistake legality for wisdom.

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For decades, workplace surveillance was largely investigative. Security cameras deterred theft. Swipe cards confirmed attendance. Email reviews mainly occurred after complaints, and monitoring was targeted toward answering specific questions.

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Artificial intelligence has transformed surveillance into continuous evaluation.

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Modern software no longer simply records what employees have done. It generates productivity scores. It compares employees with one another. It identifies behavioural patterns. Some systems claim to predict disengagement, burnout, absenteeism or even the likelihood that an employee will resign. Others rank employees for promotion or identify those who supposedly warrant discipline.