Howard Levitt: New workplace monitoring software has employees up in arms. They’re concerned about the wrong thing

Skip to Content News Archives Economy Energy Oil & Gas Renewables Electric Vehicles Mining Commodities Agriculture Real Estate Mortgages Mortgage Rates Finance Banking Insurance Fintech Cryptocurrency Work Wealth Smart Money Wealth Management Investor Personal Finance Family Finance Retirement Taxes High Net Worth FP Comment Executive Women Puzzmo Newsletters Financial Times Business Essentials More Innovation Information Technology FP500 Podcasts Small Business Lives Told Tails Told Shopping Financial Post Store Obituaries Place a Notice Advertising Advertising With Us Advertising Solutions Postmedia Ad Manager Sponsorship Requests Classifieds Place a Classifieds ad Working Profile Settings My Subscriptions My Offers Newsletters Customer Service FAQ News Economy Energy Mining Real Estate Finance Work Wealth Investor FP Comment Executive Women Puzzmo Newsletters Financial Times Business Essentials This advertisement has not loaded yet, but your article continues below.HomeLegal PostWorkHoward Levitt: New workplace monitoring software has employees up in arms. They're concerned about the wrong thingAI is an extraordinarily powerful management tool. But it should remain exactly that — a tool. Not a managerLast updated 16 minutes ago The next generation of employment litigation is unlikely to centre on surveillance itself. It will focus on employment decisions driven by flawed algorithms. Photo by Malte Mueller/Getty ImagesEmployees are concerned about workplace surveillance. They are missing the point. What they should be concerned about is the delegation of management to algorithms.THIS CONTENT IS RESERVED FOR SUBSCRIBERS ONLYSubscribe now to read the latest news in your city and across Canada.Exclusive articles from Barbara Shecter, Joe O'Connor, Gabriel Friedman, and others.Daily content from Financial Times, the world's leading global business publication.Unlimited online access to read articles from Financial Post, National Post and 15 news sites across Canada with one account.National Post ePaper, an electronic replica of the print edition to view on any device, share and comment on.Daily puzzles, including the New York Times Crossword.SUBSCRIBE TO UNLOCK MORE ARTICLESSubscribe now to read the latest news in your city and across Canada.Exclusive articles from Barbara Shecter, Joe O'Connor, Gabriel Friedman and others.Daily content from Financial Times, the world's leading global business publication.Unlimited online access to read articles from Financial Post, National Post and 15 news sites across Canada with one account.National Post ePaper, an electronic replica of the print edition to view on any device, share and comment on.Daily puzzles, including the New York Times Crossword.REGISTER / SIGN IN TO UNLOCK MORE ARTICLESCreate an account or sign in to continue with your reading experience.Access articles from across Canada with one account.Share your thoughts and join the conversation in the comments.Enjoy additional articles per month.Get email updates from your favourite authors.THIS ARTICLE IS FREE TO READ REGISTER TO UNLOCK.Create an account or sign in to continue with your reading experience.Access articles from across Canada with one accountShare your thoughts and join the conversation in the commentsEnjoy additional articles per monthGet email updates from your favourite authorsSign In or Create an AccountWhen 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.”But everyone is arguing about the wrong issue.FP Work touches on HR strategy, labour economics, office culture, technology and more.By signing up you consent to receive the above newsletter from Postmedia Network Inc.A welcome email is on its way. If you don't see it, please check your junk folder.The next issue of Work will soon be in your inbox.We encountered an issue signing you up. Please try againAnd it isn’t a legal one, since employers in Canada are largely allowed to monitor their employees.The real issue is what happens when artificial intelligence begins making employment decisions based on what it observes.That is a far more profound — and far more dangerous — development.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.”My response is usually disappointing.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.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.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.That sounds like meaningful protection.It isn’t. The law requires disclosure, not restraint.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.Employees often confuse notice and consent. The law does not.Nor, for that matter, should employers mistake legality for wisdom.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.Artificial intelligence has transformed surveillance into continuous evaluation.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.This advertisement has not loaded yet.This advertisement has not loaded yet, but your article continues below.The technology is seductive because it appears objective. It isn’t.Every algorithm reflects assumptions made by its designers. Every productivity score measures proxies rather than actual value. A computer can count keystrokes. It cannot determine whether those keystrokes accomplished anything worthwhile.The employee who sends two hundred emails may appear highly productive.The employee who spends an hour thinking through a difficult legal issue before writing a single paragraph may appear idle.Anyone who has managed professionals knows which employee is often creating the greater value. Artificial intelligence does not.That is where employers should become concerned.The next generation of employment litigation is unlikely to centre on surveillance itself. It will focus on employment decisions driven by flawed algorithms.Imagine an employee with arthritis who uses voice dictation rather than a keyboard. Another spends much of her day mentoring junior staff instead of generating emails. A third has ADHD and works in intense bursts separated by periods of reflection. Software may rank all three as underperformers.A manager who unquestioningly accepts those rankings may discover that the algorithm — not the employee — was the real problem. They also will find themselves on the losing side of a human rights case based on disability.Judges are unlikely to be impressed by an employer explaining that “the computer recommended termination.”Delegating judgment to software is still delegating judgment. The legal responsibility remains with management.There are other risks as well.Artificial intelligence trained on historical employment data may unintentionally perpetuate past biases. Systems that appear neutral may disproportionately disadvantage older workers, employees with disabilities or those whose work cannot easily be measured by digital activity. Human rights legislation does not cease to apply merely because a computer generated the recommendation.Nor is there any guarantee that ubiquitous monitoring improves productivity.Employees respond to incentives. If they know keyboard activity is measured, they type more. If online presence is rewarded, they avoid stepping away. If email volume matters, in-boxes become flooded. All of this work becomes performance for the algorithm rather than value for the employer or customer.The irony is striking. Employers purchase sophisticated software to improve efficiency, only to encourage employees to optimize often misleading statistics instead of results.Good management has never been about measuring every movement. It has been about identifying the people whose judgment, initiative, creativity and integrity produce better outcomes than a stopwatch or spreadsheet can ever capture.AI is an extraordinarily powerful management tool. Used appropriately, it can identify security risks, detect fraud, protect confidential information and reveal operational inefficiencies that would otherwise go unnoticed.But it should remain exactly that — a tool. Not a manager.The law has historically adapted, albeit slowly, to new workplace technologies. AI is advancing far faster than legislatures and courts can respond. Employers who assume that every technological capability is legally or commercially wise may find themselves learning otherwise in expensive litigation.Employees, meanwhile, should abandon the comforting fiction that the workplace is a private sanctuary. It isn’t. If you are using your employer’s systems, assume they will see what you are doing.But employers should remember something equally important. The most valuable employee in the office may not be the one who types the fastest, clicks the most or remains permanently online.It may be the one quietly staring out the window, solving tomorrow’s biggest problem.No algorithm can measure that. At least not yet.Howard Levitt is senior partner of Levitt LLP, leading his teams of labour lawyers in Ontario, Alberta and British Columbia. Howard has appeared in more Supreme Court employment law cases and provincial appeals than any lawyer in Canadian history. A bestselling author, he discusses current workplace issues on the podcast, At Work with Howard Levitt.We apologize, but this video has failed to load.Notice for the Postmedia NetworkThis website uses cookies to personalize your content (including ads), and allows us to analyze our traffic. Read more about cookies here. By continuing to use our site, you agree to our Terms of Use and Privacy Policy.