Technology is advancing at an unprecedented pace, and many Canadians are concerned that employers may be using AI programs to fire workers. These programs are currently being used to monitor employee performance, both in person and remotely. The information collected can be used to determine whether a worker should be fired or not.
Here's what you should know about worker terminations related to artificial intelligence.
Your Legal Protections
It's important for workers to understand the legal protections they have from the deployment of AI in their workplace. In 2022, Ontario's Employment Standards Act was amended to include new provisions on workplace electronic monitoring.
For instance, employers with 25 or a higher number of workers must provide all employees with a written policy outlining any form of electronic monitoring in the workplace. The policy must describe how and in what situations electronic monitoring will be deployed, the purpose of monitoring, and how the information collected will be used.
Thus, employers must provide clear information about the use of AI to monitor workers in the workplace through detailed, written policies. Remember, the policy must indicate xbe fired.
According to Stacey Ball, an employment lawyer in Toronto, ESA limitations related to electronic monitoring do more than ensure workers know they're being monitored electronically and for what purpose. It may seem like employers face fewer restrictions regarding the policies they can implement under the legal electronic monitoring requirements in the workplace. However, previous lawsuits have established clear limitations for such workplace policies.
Various court rulings in the past have established the nature of acceptable workplace policies. For instance, these policies should be:
- Clear and unequivocal
- Reasonable
- Consistently enforced after the policies' introduction
- Brought to the employee's attention before the employer acts on the policy
In addition, all workers must be informed that breaching a certain policy can result in termination if the policy is a foundation for a worker's dismissal. All unreasonable workplace policies, whether related to employee monitoring or not, are unacceptable.
Unreasonable Workplace Rules
Unreasonable workplace rules, particularly related to electronic monitoring and termination, were addressed in a recent case – Woodstock & Woodstock Professional Firefighters' Association. (Video Surveillance). It was established that workplace video surveillance should be balanced against the employee's limited privacy legal rights.
That means your employer's intent to monitor the workplace should be balanced against your interests to maintain your privacy. If any form of electronic monitoring will be used to monitor employees, it must be implemented to address actual business concerns, like security risks, without violating the workers' privacy interests.
Any form of surveillance or electronic monitoring with no connection to valid business concerns would be considered unreasonable. After all, it would infringe the employee's right to privacy. Therefore, if AI programs are used to monitor employees, they must be used in response to valid business concerns and implemented in a way that doesn't infringe too much on the workers' privacy rights. Otherwise, the policy may be legally considered unreasonable.
Is AI monitoring Acceptable in the Workplace?
In another lawsuit – Canadian Union of Postal Workers v Foodora Inc.– Foodora's use of an AI program to track worker performance wasn't challenged. Rather, taken as stated, such implementation of AI monitoring programs was considered a norm within the industry.
Foodora used AI software to monitor workers electronically. The program collected key performance indicators, which were then used in the process of disciplining workers (based on the recorded conduct). There are instances where workers were terminated based on the information collected by the AI software.
Consequently, if there's an established and reasonable workplace monitoring policy, the use of AI programs to track and assess workers' performance is currently acceptable in Ontario. Indeed, employers can use information from such programs to discipline and, when necessary, terminate workers.
Can AI Programs Determine Worker Terminations?
In Ontario, employers can use electronic monitoring for a variety of purposes, like tracking employee performance, ensuring discipline, and even terminating employees. Worker termination or dismissal is a complex issue that takes two forms – worker termination for cause and worker termination without cause.
Ontario's Employment Standards Act outlines the basic entitlements for employee termination without a cause. This form of worker termination occurs if an employee is given reasonable notice or paid in lieu of a termination notice. However, if an employer terminates an employee for a cause, they must have credible information to demonstrate that the employee was:
- Habitually neglectful of their official duties
- Guilty of gross misconduct
- Professionally incompetent
- Engaged in activities or conduct prejudicial to the employer's business interests
- Disobedient of reasonable orders from the employer
- Engaged in conduct or activities that don't align with their duties
If you are terminated for a cause, you will not get a severance package or access your Employment Benefits. This type of worker termination rarely happens and is reserved for the worst workplace offences, such as assault or theft.
Within the context of legally acceptable or reasonable workplace duties, it's possible that workplace monitoring policies involving AI programs are acceptable. However, the policy must comply with all relevant requirements outlined in the Employment Standards Act.
Stacey Ball, an employment lawyer in Toronto, warns that electronic monitoring in the workplace may be challenged on the basis of employee's right to privacy. It's also possible for the same policies to adhere to ESA's requirements related to the protection of business interests and actual concerns about worker performance and security risks.
Therefore, if an employer decides to implement AI programs to monitor workplace-related activities and employee conduct, the policy must be ESA-compliant. As demonstrated in the Foodora case, electronic monitoring can legally be used to gather information regarding workers' performance, ensure employee discipline, and sometimes terminate workers.
However, the employer's decision to terminate a worker must be based on factual information and reasonable workplace policies. Indeed, the decision must comply with the circumstances outlined in ESA related to termination for a cause or termination without a cause.
