'Can employers do this? Yes, but the trick is in doing it correctly': lawyer on listening to employees to improve their experience
“Passive listening,” a tool that uses artificial intelligence (AI) to analyze employee data, is emerging as a game changer in how HR teams gauge employee engagement.
More than 60% of employees are comfortable with employers analyzing their digital communications — such as emails and direct messages — as a way to improve employee experience, according to a Qualtrics report.
This openness to passive listening surpasses the expectations of HR leaders, the report finds, with only 45% believing employees would be receptive to such monitoring.
The use of AI to track and analyze employee data presents opportunities and challenges for HR teams, and while employees may be more comfortable about AI passive listening, privacy concerns are significant, say two employment lawyers speaking to Canadian HR Reporter.
What is 'passive listening'?
Passive listening is a way for employers to add an extra layer to more standard methods of information gathering such as employee surveys and feedback, says Zoya Alam, employment lawyer at Goulart Workplace Lawyers in Oakville. For example, passive listening can help HR teams track how employees are affected by significant external events, such as the COVID-19 pandemic.
“It’s basically saying these tools are a bit outdated, or you need to use them in conjunction with some more sophisticated AI tools,” she says.
“For example, this passive listening program would be able to gather what they call ‘unsolicited and unstructured data’. It'll pick up on your employee messaging, their emails, what they're scheduling, what they're declining, and all about the employee user experience, so it can gather a whole slew of data.”
AI can provide a fuller picture of employee experiences, Alam says, because a survey might miss such nuances, while passive listening can detect things like burnout or changes in engagement patterns.
“It's different from the traditional practices, because in surveys, for example, it's drafted by someone, so whoever is drafting the survey may not even be picking up the issues or the employee feedback that they need, [without] actually knowing it,” she says. “So, it's a conjunction of using those traditional tools along with AI, to get a better understanding of employee engagement and their feedback, essentially.”
Passive listening and privacy concerns
The Qualtrics report found that more than half (64%) of employees are open to having their emails analyzed, including group messages, reflecting a growing acceptance of AI monitoring. However, this willingness depends on trust — employees who trust senior leadership are significantly more likely to consent to this type of data analysis.
But even with increased employee buy-in, privacy concerns are still significant, says Alam.
“These softwares can be very sophisticated — they can pick up everything… from the number of clicks per minute an employee is making, to how often are they in meetings versus how often are they on social media tools … so it can pick up very microscopic data if it needs to.”
Because of this ability to pick up microscopic data, it’s more important than ever for employers to be vigilant around the use and storage of that data, she says: “How much data is being collected? How is it being collected? And what is it doing with the data, and what's the purpose of that data?”
Kirsten Thompson, partner and national practice group lead for privacy and cybersecurity at Dentons in Toronto, says that employers must comply with provincial privacy laws in Quebec, B.C., and Alberta, as well as Ontario's electronic monitoring provisions under the Employment Standards Act.
“Private sector employees aren’t covered by federal privacy law, but they are by provincial laws in Quebec, BC, and Alberta,” she says, adding that employees can also sue employers for common law breach of privacy, including in class actions.
Read more: Breach of privacy examples in Canada
Employers can still use AI passive listening technology, but they need to justify it.
“To justify it, they must be able to demonstrate that such monitoring must be necessary, is effective for the purpose, and the loss of privacy must be proportional to the benefit,” says Thompson. The methods used should also be “as minimally invasive as is reasonably possible.”
Passive listening and the importance of anonymous data
Another major concern for HR professionals is whether the data collected through passive listening is truly anonymous.
“Some of the software says it’s anonymous,” Alam says, but this raises questions about what is being collected. Is the software only identifying trends, or is it gathering data about specific employees? She points out that privacy legislation in provinces like B.C., Alberta, and Quebec is particularly stringent.
Thompson says that while privacy laws deal with personal information — data that can identify an individual — truly anonymous information falls outside of these laws. However, “most organizations do this poorly — they are merely de-identifying personal information, like removing names, and not truly anonymizing it,” she says.
De-identified data can often be traced back to an individual, meaning it still falls under privacy law regulations. Quebec, in particular, has specific requirements for anonymous data under its privacy laws, and organizations that fail to follow these rules may face steep penalties, Thompson says.
Employee trust and passive listening
Despite these concerns, employees who trust their organizations are more likely to share their data, according to the Qualtrics study. Trust is foundational to creating a mutually beneficial relationship between employees and employers, and it plays a key role in how open employees are to passive listening programs.
“There also has to be trust between senior leadership and employees, for them to be part of this program,” Alam says.
One option to build this trust is offering opt-in programs, where employees can consent to participate, she says. Employees need to feel that their data is being collected and used for the right purposes, or they may view the program as invasive.
HR teams should also develop clear policies outlining how data is collected, used, and stored, Alam says.
“Those policies should be very clear and transparent about what’s taking place and the user engagement.”
Privacy laws differ by province, but Thompson highlights best practices that all HR teams should follow. For example, Quebec’s privacy laws likely require employers to conduct a privacy impact assessment before using AI passive listening; while other provinces don’t require this step, employers should do so anyway, as part of best practices and risk management, she says.
Thompson also says that organizations often use outdated privacy assessment templates that are not robust enough for new technologies.
Advice for HR use of passive listening technology
AI passive listening offers exciting possibilities, but it remains a complex area for HR teams to navigate. Alam advises regularly reviewing the effectiveness of these tools: “Is it increasing employee engagement? Are you getting more employee satisfaction from engaging this?”
HR professionals must take a careful and thoughtful approach, Thompson says, to ensure compliance with privacy laws and to respect employee trust. This includes constantly reviewing the data they collect to make sure it aligns with their business goals.
“This isn’t to say employers can’t engage in using this technology,” she says. “They can, but they must be able to justify it. To justify it, they must be able to demonstrate that such monitoring must be necessary, is effective for the purpose, and the loss of privacy must be proportional to the benefit.
“Can employers do this? Yes, but the trick is in doing it correctly,” she says.
