The Working for Workers Act 2022 received royal assent and became law in Ontario on April 11, 2022. We recently reported on the introduction of this legislation of foundational rights and protections for gig workers through the creation of the stand-alone Digital Platform Workers’ Rights Act 2022.

This article looks at another key change introduced by the Working for Workers Act 2022 – the requirement for certain larger employers to have a written policy with respect to the electronic monitoring of employees.

The Working for Workers Act 2022 introduces a new privacy policy requirement in the employment context

The new legislation, in an attempt to address privacy concerns, requires some employers to disclose how employees’ use of computers, cell phones, GPS systems and other electronic devices are being monitored.

Monte McNaughton, the Minister of Labour, Training and Skills Development, said:

Our workers-first plan to build stronger families also requires larger employers to disclose how they are monitoring their workers electronically. With more people in Ontario than ever before working from home, families deserve to know if, how, and why their employers are monitoring their devices so they can protect their privacy.

Certain larger employers are required to have a written electronic monitoring policy

The Working for Workers Act 2022 amends the Employment Standards Act 2000, introducing a new Part XI.1, requiring employers that employ 25 or more employees on January 1 of any year to have a written policy with respect to the electronic monitoring of employees. This Part came into force on April 11, 2022.

Importantly, the new requirement does not establish a right for employees not to be electronically monitored by their employer or create new privacy rights. It does not limit an employer’s ability to use information obtained through electronic monitoring of its employees.

According to the provisions, a complaint alleging an infringement of the new requirement may only be made with respect to the subsections mandating that the employer provide a copy of the policy to employees. In other words, an employee cannot have a complaint investigated concerning other matters, such as when employers do not comply with an electronic monitoring policy.

What does the electronic monitoring policy need to contain?

The policy must contain the following information:

• whether the employer electronically monitors employees, and if so, a description of how and in what circumstances 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; and
• such other information as may be prescribed.

What are the deadlines to prepare the electronic monitoring policy?

The policy is normally required to be in place before March 1.

However, as a transitional measure for 2022, the policy is required by October 11, 2022. This is required by employers that employ 25 or more employees on January 1, 2022.

How does the electronic monitoring policy need to be communicated?

Employers are required to provide a copy of the policy to each employee within 30 days from the day the employer is required to have the policy in place. If an existing policy is changed, it needs to be provided within 30 days of the changes being made.

A copy of the policy needs to be given to a new employee within 30 days of the day the employee becomes an employee of the employer.

What has Ontario’s Information and Privacy Commissioner said about the need for employment-related privacy regulation?

Ontario’s Information and Privacy Commissioner, Patricia Kosseim, has described employee monitoring software as “the stuff of dystopian sci-fi movies.” She explains that the technology is capable of monitoring not only keystrokes, mouse clicks, emails and video calls but is even able to analyze facial expressions to interpret emotions and behaviours. Employee movements and activities could be tracked using GPS, digital health apps and biometric timekeeping software.

While the Commissioner thinks that the new legislative requirement is a helpful step in the right direction, simply telling employees about the monitoring doesn’t necessarily make it right. She considers that transparency alone is not sufficient.

The Commissioner thinks this is a more significant problem in the era of the pandemic because vastly more people work from home. This has increased the desire of employers to supervise and measure the performance of their employees remotely, and some methods can be privacy-invasive. It raises the question of where to draw the line between personal and private space. Which activities should or should not be monitored when an employee is working from home?

The Commissioner has said that the new legislation does not go far enough and has called for:

Workplace surveillance methods should be used only for fair and appropriate purposes and only to the extent they are reasonably necessary to manage the employer-employee relationship.

The Commissioner appeared before the Standing Committee on Social Policy of the Legislative Assembly, while Bill 88, the Working for Workers Act 2022, proceeded through the legislative stages. She called for electronic workplace monitoring to be governed by a more comprehensive Ontario private sector privacy law, similar to the one proposed last year in the Government’s white paper on modernizing privacy in Ontario.

It remains to be seen whether the Ontario Government will take up such an approach in future.

Contact Toronto Employment Lawyers to Understand your Legal Rights and Obligations under the Working for Workers Act

To discuss how these amendments may affect you or your business, please contact the seasoned labour and employment lawyers at GGFH LLP in Toronto. Our lawyers have long been at the forefront of employment and labour law and have been recognized as leaders by our peers in Lexpert. We are one of the most recommended labour and employment law firms in Canada. If you need guidance with a workplace-related issue, contact us online or at 416.364.9599.