Technology is constantly changing the way we work and, as technology advances, so too have the opportunities for employers to harness it for monitoring employee activity. This, in turn, has resulted in questions around the rules of electronic monitoring of employees.

In Ontario, employers are permitted to electronically monitor employees—provided that they follow the rules relating to electronic monitoring policies outlined in section 41.1.1 of the Employment Standards Act. This blog post will discuss what electronic monitoring is, the requirements for electronic monitoring policies in Ontario, and practical tips for employees and employers navigating the challenges associated with electronic monitoring policies.

What is Electronic Monitoring of Employees?

Electronic monitoring is not explicitly defined in the Employment Standards Act. However, it can encompass a wide range of employer activities. In essence, electronic monitoring is the monitoring of employees through electronic means during work hours. Some examples of activities that could constitute electronic monitoring include:

• Requiring employees to sign in to an online platform when starting work (or signing out when finishing work);
• Tracking employee activity using tools like keystroke tracking or website monitoring;
• Implementing security cameras in the workplace; and/or
• Using a location tracker on a work vehicle or work phone to monitor employee movements and travel.

Why Do Some Employers Electronically Monitor Employees?

There are many reasons why employers may decide to electronically monitor their employees, ranging from safety and security issues to managing productivity and payroll. What unites employers in their electronic monitoring efforts are the requirements outlined in the Employment Standards Act surrounding the electronic monitoring of employees, which are explored in further detail below.

Electronic Monitoring and Employee Rights

The Employment Standards Act rules relating to electronic monitoring of employees do not create any new privacy rights for employees, nor do they establish any rights for employees not to be monitored by their employers. Rather, these rules require employers to provide transparency around electronic monitoring practices.

Requirements Under the Employment Standards Act

Under Ontario’s Employment Standards Act, any employer that employs 25 or more employees as of January 1 of any year must ensure that it has a written policy in place for all employees regarding electronic monitoring no later than March 1 of that same year.

What Must an Electronic Monitoring Policy Include?

An electronic monitoring policy must include, at a minimum, the following information:

• Whether the employer electronically monitors employees;
• If the employer electronically monitors employees, a description of how and under what circumstances the employer will electronically monitor employees;
• How the employer will use the information they obtain through electronic monitoring; and
• The date the policy was prepared, along with the date of any changes made to the policy.

Who Gets a Copy of the Electronic Monitoring Policy?

If an employer is required to have an electronic monitoring policy in place, they must provide each employee with a copy of the policy within 30 days of the date the employer is required to have the policy in place. If an employer amends an existing policy, it must provide each employee with a copy of the updated policy within 30 days of making such changes.

New employees must be provided with a copy of the electronic monitoring policy within 30 days from the date on which their employment commences, or within 30 days of the date the employer is required to have the policy in place, whichever occurs later.

Assignment employees (i.e. employees brought on through a temporary help agency) must be provided with a copy of the electronic monitoring policy either 24 hours of the start of the assignment or within 30 days from the day the employer is required to have the policy in place, whichever is later.

What if an Employer Does Not Enact or Follow an Electronic Monitoring Policy?

If an employee believes that their employer is not following the electronic monitoring policy requirements outlined in the Employment Standards Act (for example, using electronic monitoring practices that are not outlined in the electronic monitoring policy), they may file a complaint with the Ministry of Labour, Immigration, Training and Skills Development. Generally, a complaint must be filed within two years of the event occurring.

Employees can also consult with an experienced employment law lawyer for additional information on complaints under the Employment Standards Act.

Key Takeaways for Employers and Employees Regarding Electronic Monitoring

While the rules relating to electronic monitoring of employees under the Employment Standards Act are relatively straightforward, it is important for employers and employees to familiarize themselves with these rules and to understand how they may be impacted by them.

Employers should:

• Ensure they understand their obligation to create and maintain a written policy governing the use of electronic monitoring in the workplace if they have 25 or more employees.
• Draft a clear and comprehensive electronic monitoring policy that outlines the purpose, scope, and methods of electronically monitoring employees.
• Consult an experienced employment law lawyer to ensure that their policy complies with relevant legislation, including potential privacy issues.
• Communicate their electronic monitoring policy clearly to all employees (and provide training, if appropriate, to ensure compliance and understanding).
• Regularly review and update the electronic monitoring policy, as necessary, to ensure it continues to accurately reflect the company’s electronic monitoring practices.

Employees should:

• Become familiar with their employer’s obligations relating to electronic monitoring outlined in the Employment Standards Act.
• Take the time to read and understand their employer’s electronic monitoring policy and seek clarification from their employers if they have questions or concerns.
• Be mindful of their privacy rights and consider how they might be impacted by the electronic monitoring policy, including avoiding using company devices or systems for personal tasks.
• Seek assistance from an experienced employment law lawyer if they have concerns about the policy, or how or whether it is being implemented appropriately in their workplace.

Contact the Experienced Employment Law Lawyers at GGFH LLP for Advice on Electronic Monitoring Matters

At Grosman Gale Fletcher Hopkins LLP, we focus exclusively on advising clients on labour and employment law matters. Our experienced employment law lawyers help both employees and employers navigate a range of employment law issues, including workplace policies, terminations, and claims under the Employment Standards Act. To speak with a member of our employment law team regarding your workplace matter, contact us online or by phone at 416.364.9599.