The Electronic Monitoring Policy
On April 11, 2022, Bill 88, the Working for Workers Act, 2022 (the “Act”), received Royal Assent, amending the Employment Standards Act, 2000 (the “ESA”) to require employers to develop “electronic monitoring” policies.
On July 21, 2022, Ontario’s Ministry of Labour, Immigration, Training and Skills Development (the “Ministry”) updated its guide to the ESA to include guidance on the new requirements. The ESA requires employers to develop an “electronic monitoring” policy by October 11, 2022, if they employed 25 or more employees on January 1, 2022.
Developing a written policy before this deadline will help ensure you remain in compliance with the ESA.
Does this Policy Apply to your Company?
For 2022, the ESA will require all employers in Ontario with 25 or more employees, employed as of January 1, 2022, to develop an “electronic monitoring” policy. For all subsequent years, employers in Ontario with 25 or more employees, employed as of January 1 of that year, must also have a policy in place before March 1 of that year.
This new requirement may raise several questions for employers and make you unsure whether you are required to develop a policy. These may include:
How timing impacts the calculation
Determining whether employees “are employed in Ontario” for the purpose of the ESA
Whether temporary or assignment employees are included
Timing of the Calculation
The most critical date to highlight is January 1. Under the ESA, the number of employees you have on that date will determine whether you are required to develop an “electronic monitoring” policy for that year. Except for 2022, your policy will need to be in place before March 1 of that year.
The counting of employees is based on the combined total number of full-time, part-time, or temporary employees. You cannot make an adjustment for the total number of hours each employee works.
If your company does not employ 25 or more people on January 1, then you are not required to develop a policy under the ESA. Even if you subsequently hire additional employees that would have put you over the threshold, you are not required to have a policy in place for that year.
Contrarily, if your company employs 25 or more people on January 1, you must have a policy before March 1. This requirement applies to your company even if you employ fewer than 25 people later in the year.
“Employed in Ontario”
Employees who are ordinarily exempt from the application of the ESA are still considered employees for the purpose of counting employees.
This means that even if all or most of your employees are exempt from the ESA, you may still have to develop a policy. Exempt employees may not be covered by the policy itself but may take your company over the threshold, requiring you to develop a policy.
You should also be aware that all employees of a single employer are counted if they work in Ontario, even if they do not work out of the same office or workplace. Multiple employers who are considered related employers for the purpose of the ESA will also have to count all employees who are employed by all employers.
If you are unsure whether your companies are considered “related employers,” we can offer additional advice to help guide your company.
Temporary or Assigned Employees
If you employ people through a temporary help agency, those employees are not included in your count. Those employees are considered employees of the temporary help agency for the purpose of the calculation.
Even though temporary employees are not considered in an employer’s count, they must still be covered by the policy.
What is your Company Required to Include in the Policy?
If your company is required to develop a policy, that policy must contain three elements:
A statement as to whether the employer engages in electronic monitoring of employees.
Where the employer does electronically monitor employees, the policy must include a further description of:
How the employer may electronically monitor employees;
A description of the circumstance in which the employer may electronically monitor employees; and
The purposes for which information obtained through electronic monitoring may be used by the employer.
The date the policy was prepared and the date any changes were made to the policy.
Engagement in Electronic Monitoring
Employers must state whether they engage in electronic monitoring of employees. Even if an employer does not engage in electronic monitoring of their employees, they must have a policy, which can be as simple as stating that you do not engage in electronic monitoring.
Employers must carefully review their business operations to ensure that no aspect of their operations involves “electronic monitoring,” as the definition is quite broad. GPS monitoring of an employee’s work-related vehicle, electronic sensors used to track how quickly an employee scans items at a store, and software that tracks the websites visited by an employee during work hours are all considered “electronic monitoring.”
Circumstances in which Monitoring May Occur
If an employer does engage in electronic monitoring, the policy needs to be crafted according to the employer’s needs and activities. In particular, the policy must include how the employer may electronically monitor their employees, circumstances where monitoring may occur, and the purpose for which the gathered information may be used.
How the employer may Electronically Monitor Employees
The employer must assess what methods they use to monitor their employees electronically. Examples include monitoring emails or online chats, GPS tracking of vehicles, and software that monitors computer use. The employer must state which type or types of electronic monitoring they utilize.
Although the employer must develop just one policy for the workplace, the policy can be customized for different types of employees.
For instance, an employer that employs both delivery drivers and office employees can specify that one type of monitoring is used for its drivers and a different type is used for its office employees.
Circumstances where Monitoring May Occur
The employer is also required to specify where or when monitoring may occur. For example, the employer could specify specific times when monitoring occurs, such as only during working hours or only when performing specific tasks.
Purpose of Collection
Finally, the employer must specify how the collected information can be used. Suppose the employer intends to use the information to ensure the employee is doing their assigned work during work hours. In that case, they may wish to say that the information may be used to evaluate employee performance, up to and including progressive discipline or termination.
Notably, the Act does not create an enhanced right to privacy. Employers are not restricted from using the collected information; instead, the Act only requires employers to be transparent about how they collect and use the information generated through “electronic monitoring.”
Date of the Policy
The policy must also include the date the policy was prepared and the date of any changes. If the employer changes the policy, the previous version must be kept on record for three years after the policy is no longer in force.
Publication of the Policy
Employers must provide a written copy of their policy to employees within 30 days of either (1) when the employer is required to have the policy in place or (2) the day the policy is changed. This means that employers who are required to have a policy in place by October 11, 2022, will be required to make the policy available to their employees by November 10, 2022.
If a company hires a new employee and already has a policy in place, they have 30 days from when the employee is hired to provide the employee with a copy of the policy. However, there is an exception if the employee is an assignment employee. In that case, the employer will only have 24 hours from the start of the assignment to provide the employee with a copy of the policy.
Based on the guidance provided by the Ministry, employers are required to provide either a printed copy, or an attachment in an email or a link to an online copy of the document, but only if the employee has access to a printer. Simply emailing the employee a copy of the policy may not be enough to adhere to the new requirements under the ESA.
How is the New Requirement Enforced?
Although the ESA requires the employer to have a policy on electronic monitoring, the ESA also limits the complaint mechanism.
The only complaint that can be made to the Ministry is an allegation that the employer failed to provide a copy of the policy within the time required by the ESA. The Ministry, and Employment Standards Officers, will not investigate disputes regarding policy content.
Reach out if you have any questions about how the new legislation may affect your business.
