In an effort to prove Meta’s endless drive to bring the future to the present, the company recently announced a series of dystopian measures for its employees that would make Philip K Dick shudder. In its latest assault on the concept of human labour, Meta announced that it would begin tracking the mouse movements, clicks, keystrokes, and random screenshots of its employees’ computers, with the specifically stated goal of using this surveillance to train “AI Agents” to eventually perform the jobs of these same workers.
Many companies have already invested massive resources into Orwellian workplace surveillance, ranging from bathroom breaks to eye movements. Similarly, other companies have pushed employees to integrate large language models into their daily work or even demonstrate how parts of their own jobs could be automated. However, Meta appears to be among the first to explicitly and proudly marry intrusive employee surveillance with the goal of using that surveillance to make the surveilled employees obsolete.
Why Meta’s AI surveillance measures raise legal concerns?
If Meta still operates by its original motto of “move fast and break things”, then it appears that one of those things Meta may be breaking is their employment agreements with their employees.
Introducing significant and unilateral changes to fundamental terms of an employment agreement is considered constructive dismissal in Canada and is treated at law as a without cause dismissal of those employees without providing the notice owed.
The dismissed employee is therefore entitled to compensation in lieu of this notice.
Consequently, Meta’s measures raise several potential constructive dismissal issues.
Significant employee surveillance
Extensive monitoring including:
- Mouse tracking
- Keystroke monitoring
- Screenshot collection
- Productivity surveillance
Could constitute a substantial change to the employee’s working conditions.
For many employees, workplace privacy and autonomy are fundamental aspects of employment.
Fundamental changes to job duties
Requiring employees to train “AI Agents” capable of replacing them may also alter the fundamental nature of the employee’s job.
Potential breach of good faith
Canadian employment law imposes duties of good faith and fair dealing in the employment relationship.
An explicit requirement for employees to train systems intended to eliminate their own positions could constitute a breach of the fundamental requirements of good faith and fair performance owed in an employment contract.
What are employees’ legal options?
Employees faced with such change have three legal options:
Accept the change
An employee can agree to the new terms, either explicitly or implicitly through continued employment without objection.
Continue working under protest
Employees may continue working while clearly objecting to the changes and preserving their legal rights.
Resign and pursue constructive dismissal
If the changes are sufficiently substantial, an employee may resign and pursue a constructive dismissal claim seeking compensation.
Can employers force employees to train AI replacements?
This is likely to become an increasingly important legal question as AI adoption accelerates.
While employers can generally reorganize work and introduce new technologies, there are legal limits when those changes fundamentally alter:
- The nature of the role
- Employee privacy expectations
- The employment relationship itself
This means that for those employees who would not feel particularly happy with Meta tracking their every activity and/or with being asked to provide a way for Meta to cost effectively terminate their employment do not have to take such changes lying down.
Frequently asked questions:
Can increased workplace surveillance be constructive dismissal?
Potentially, yes. Significant new surveillance measures may amount to constructive dismissal if they substantially change the employee’s working conditions without consent.
Can an employer force employees to train AI replacements?
Employers may introduce new technologies, but requiring employees to train systems intended to replace them could raise constructive dismissal and good faith concerns.
What is constructive dismissal in Ontario?
Constructive dismissal occurs when an employer unilaterally makes major changes to a fundamental term of employment, effectively forcing the employee to resign
Is employee monitoring legal in Canada?
Employee monitoring can be legal in Canada, but employers must balance business interests with employee privacy rights and employment law obligations.
Can changes to job duties trigger constructive dismissal?
Yes. Significant changes to the nature of an employee’s role or responsibilities may support a constructive dismissal claim.
What should employees do if workplace conditions change significantly?
Employees may accept the changes, continue working under protest, or resign and pursue a constructive dismissal claim depending on the circumstances.
How can Whitten and Lublin help?
Employers often use big, sweeping changes to pressure employees to accept new and disadvantageous terms in their employment agreements. However, no matter how big the changes, each individual employee has their own contractual rights and can choose how to respond to those changes.
If you are dealing with significant workplace changes, increased surveillance, or AI-related restructuring, the employment lawyers at Whitten & Lublin can help you assess your options and determine whether those changes may amount to constructive dismissal.
Contact us online or call (416) 640-2667 to learn more.
