Guidance for Employers on Incoming Requirement for Written Electronic Monitoring Policies

Bill 88, the Working for Workers Act, 2022, received Royal Assent on April 11, 2022.  It amended the Employment Standards Act, 2000 (the “ESA”) to introduce a requirement for covered employers to put in place a written policy regarding their electronic monitoring practices with respect to employees.  The initial deadline for covered employers to have the policy in place is October 11, 2022

We discussed the legislation’s basic requirements in a previous Focus Alert.  The Ministry of Labour has since added a section on the written electronic monitoring policy requirement to its online resource, Your guide to the Employment Standards Act (the “Guide”).  We have summarized the key aspects of the guidance below.

Electronic Monitoring

While the ESA does not define “electronic monitoring,” the Guide states that the term “includes all forms of employee and assignment employee monitoring that is done electronically.”  Examples include GPS tracking of delivery vehicles, electronic sensors to track the speed at which an employee scans items, or tracking the websites that employees visit during work hours. 

Electronic monitoring is not limited just to the employer’s devices or electronic equipment, or the monitoring that takes place while employees are at the workplace.  Monitoring of an employee who is working from home or who does work using their own personal computer, for example, would therefore also be captured by the requirement.

Covered Employers

An employer that employs 25 or more employees on January 1 of a given year is required to have a written policy on the electronic monitoring of employees in place for that year, even if the employee count falls below 25 later in the calendar year.  Conversely, an employer who does not meet the 25-employee threshold on January 1 of a given year is not required to have a policy in place for that year, even if the employee count meets or exceeds the threshold later in the calendar year.

The policy requirements apply to all employers that are covered by the ESA, except the Crown, a Crown agency or an authority, board, commission or corporation whose members are all appointed by the Crown and their employees.

Counting Employees

Employees are counted rather than “full-time equivalents.”  Any person meeting the definition of “employee” under the ESA is to be included in the count.  The Guide outlines in greater detail various examples of employees who are covered, such as those on probation, leave, lay-off, on strike or locked out, or on term contracts.  Part-time and casual employees are each counted as one employee. 

Employees who are exempt from the application of all or part of the ESA are counted for the purposes of determining whether the employer meets the 25-employee threshold, even though those employees may not be covered by the electronic monitoring policy provisions in the ESA.

Employers with multiple locations must count all employees employed at each location in Ontario.  In the Guide’s example, an employer with three wine shops with 12 employees at each shop is required to have a written electronic monitoring policy in place because it has a total of 36 employees.  Additionally, for employers who are related and treated as one employer under the ESA, all of the employees employed in Ontario by those related employers must be counted.

A temporary help agency’s assignment employees, whether active or inactive, are to be counted to determine if the temporary help agency meets the 25-employee threshold.  Assignment employees who are assigned to a client of the temporary help agency are not included in the client’s employee count to determine if the client meets the 25-employee threshold.

The Policy Deadline

As noted above, the initial deadline for employers meeting the 25-employee threshold on January 1, 2022 is October 11, 2022.  After 2022, an employer that meets the 25-employee threshold on January 1 in any given year is required to have a written policy in place before March 1 of that year.

Policy Contents and Application

The policy is required to state whether or not the employer electronically monitors employees.  If the employer does so, then the policy must include a description of how and in what circumstances the employer may electronically monitor employees.  It must also state the purposes for which information obtained through electronic monitoring may be used by the employer.

The policy must also contain the date the policy was prepared and the date any changes were made to the policy.  It must also contain information prescribed by regulation, though there is no such prescribed information as of the date of the writing of this article.

The provisions do not require an employer to guarantee a right to privacy for its employees, and do not prevent an employer from electronically monitoring its employees.  They also do not affect or limit an employer’s ability to use the information that it obtains through electronic monitoring of its employees.

An employer required to have a policy in place must ensure that all employees in Ontario are covered by a policy.  However, an employer can have a single policy that applies to all employees, or different policies that apply to different groups of employees.  A covered employer must also ensure that a policy applies to assignment employees assigned to perform work for that employer in Ontario.

Other Requirements

A covered employer must provide a copy of the policy to employees within 30 calendar days of the day that the employer is required to have a policy in place.  The Guide also details various timelines for providing employees with a copy of the policy if the policy is changed, if an employee is new, or if an assignment employee is assigned to perform work for the employer.  The policy can be provided to an employee in hard copy, or can be emailed or accessed through a link, so long as the employee is able to access and print the policy.

Employers are required to retain a copy of every written policy on electronic monitoring that was required by the ESA for a period of three (3) years after the policy is no longer in effect.

Limitations on Complaints and Claim Investigations

The Guide notes that the only alleged contravention about which an employee can complain to the Ministry, or that an employment standards officer can investigate, is an allegation that an employer breached its obligation to provide an employee or assignment employee with a copy of the written policy within the required timeframe.  Employees cannot make a complaint about, and an employment standards officer cannot investigate, any other alleged contravention of the policy.  However, the Guide notes that employers may wish to seek legal advice about whether the policy creates entitlements for employees that are enforceable outside of the ESA.

In Our View

Employers who met the 25-employee threshold on January 1, 2022 should be preparing for the upcoming October deadline to have a written electronic monitoring policy in place.  Emond Harnden can help employers to prepare a policy that is tailored to their business.

Employers should be cautious not to guarantee any rights to privacy that are not required by the policy provisions outlined by Bill 88.  Employers are encouraged to seek legal advice regarding this and any other issues relating to the electronic monitoring policy requirements.

For more information, please contact Mélissa Lacroix at 613-940-2741 or Pieter Bakker at 613-218-5018.

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