As we move into the second month of 2023, it is prudent for Ontario employers with 25 or more employees to remember that they must have a policy to address how the employer electronically monitors their employees. This new requirement became law through amendments to the Ontario Employment Standards Act, 2000, introduced through the Working for Workers Act, 2022 (or Bill 88). Employers who reached 25 or more employees by January 1, 2023, must have this policy in place by March 1, 2023.
Which employers are required to have an electronic monitoring policy?
As of October 11, 2022, all Ontario employers with more than 25 employees as of January 1, 2022, were required to have a written electronic monitoring policy that complies with the requirements of the Employment Standards Act.
For employers that did not meet this threshold as of January 1, 2022, there is no requirement to have an electronic monitoring policy. However, this requirement will apply if an employer grows to 25 or more employees (as of January 1 of any future year). An employer who reaches that threshold must have an electronic monitoring policy in place by March 1 of that same year.
How is “electronic monitoring” defined?
The Employment Standards Act does not define “electronic monitoring.” However, the Ontario government has provided guidance that electronic monitoring would be considered to include “all forms of employee and assignment employee monitoring that is done electronically.” Examples include tracking websites visited by employees during working hours or tracking a delivery vehicle using GPS.
Who does an employer’s electronic monitoring policy apply to?
An electronic monitoring policy pursuant to the Employment Standards Act must apply to all “employees” as defined by that Act, which includes:
- a person, including an officer of a corporation, who performs work for an employer for wages;
- a person who supplies services to an employer for wages;
- a person who receives training from a person who is an employer, if the skill in which the person is being trained is a skill used by the employer’s employees; or
- a person who is a homeworker; and
- a person who was (previously) an employee.
The electronic monitoring policy would not apply to independent contractors. Employers are not required by the Employment Standards Act to have an electronic monitoring policy for independent contractors.
What does an employer’s electronic monitoring need to include?
An employer’s written electronic monitoring policy must include the following:
- It must disclose whether the employer electronically monitors employers.
- It must include the date the policy was prepared and when any changes were made.
- If the employer does engage in electronic monitoring, the policy must include:
- A description of how and in what circumstances the employer may engage in the monitoring. This would include disclosing whether the employer is monitoring devices issued by the employer or any other kind of electronic monitoring that occurs within the workplace. However, there is currently no guidance on how specific an employer must be in its disclosure of potential uses of information gathered pursuant to its electronic monitoring policy.
- The purposes for which information obtained through electronic monitoring may be used by the employer.
An employer is permitted to have multiple electronic monitoring policies that apply to different kinds of employees (for instance, one policy that applies to management and one policy that applies to staff).
Is the employer obligated to share the electronic monitoring policy with its employees?
Yes. The employer must share the electronic monitoring policy with its employees at certain times, set out below.
After the employer meets the 25-employee threshold
In addition to putting in place a written electronic monitoring policy, employers must provide a copy of the policy to its employees within 30 days from the date the employer is required to have it. According to the legislative amendments, this date will be March 1 of each year going forward for any employer that had 25 employees as of January 1 of that year.
After any changes to the policy are made
Any time the employer introduces any changes to the electronic monitoring policy, the new policy must be provided to employees within 30 days of those changes being made.
When a new employee is hired
When a new employee is hired, the employer must provide them with a copy of the policy within 30 days of the earlier of:
- The day the employer is required to have the policy in place; or
- The day the individual becomes an employee of the employer.
After an assignment employee starts their assignment
If an employer uses assignment employees, if that employer is required to have an electronic monitoring policy, it must be provided to the assignment employee by the later of:
- Within 24 hours from the start of the assignment; or
- Within 30 calendar days from the date the employer must have the policy in place.
How can employers use the information gathered under its electronic monitoring policy?
Employers are free to use information collected through electronic monitoring for any purpose whatsoever. However, the employer must disclose what those purposes are or might be within the electronic monitoring policy. This is because the Employment Standards Act does not give employees any privacy rights. For instance, an employer could use information obtained through electronic monitoring, pursuant to its electronic monitoring policy, to discipline an employee.
What rights do employees have in relation to electronic monitoring policies?
Employees can access a limited complaints process regarding their employer’s electronic monitoring policies. The only complaint that can be investigated by the Ministry of Labour or an employment standards officer is an alleged failure of the employer to provide the employee with a copy of the electronic monitoring policy within the mandated timeframe. An employment standards officer does not have the authority to investigate anything related to an employer’s electronic monitoring policy, including the employer’s alleged contraventions of that policy.
However, the Ontario government’s guidance on electronic monitoring policies advises employers to seek legal advice about whether such a policy may create additional entitlements that could be enforced by an employee outside of the Employment Standards Act. Before the passage of Bill 88, the Information and Privacy Commissioner of Ontario argued for a more comprehensive framework to regulate electronic monitoring in workplaces by employers, such as that proposed in the provincial government’s 2021 white paper on Modernizing Privacy in Ontario: Empowering Ontarians and Enabling a Digital Ontario. Provinces such as British Columbia, Alberta, and Quebec already have privacy laws that extend additional privacy protections to employees and include investigation and complaints processes for employer non-compliance. However, such protections for employee privacy were not included in Bill 88.
What are record-keeping requirements concerning workplace electronic monitoring policies?
Employers that are required to have an electronic monitoring policy are also required to retain copies of all such policies for three years after that policy is no longer in effect.
Willis Business Law Advises Windsor-Essex Employers on Employee Monitoring Policies
The knowledgeable employment lawyers at Willis Business Law provide expert business law advice and guidance to clients across Windsor-Essex County and the surrounding areas. The firm develops innovative employment law solutions for public and private sector employers and offers comprehensive guidance on employers’ rights and responsibilities with respect to employee monitoring policies. To schedule a consultation, call 519-945-5470 or contact the firm online.