We previously reported on the introduction of a requirement for certain larger employers to have a written policy with respect to the electronic monitoring of employees under the Working for Workers Act 2022. The Ministry of Labour, Immigration, Training and Skills Development has now released guidance on this requirement.

This article recaps the legislative requirements and takes a look at the new guidance.

The legislation requires larger employers to have a written policy on electronic monitoring

The Working for Workers Act 2022 amended the Employment Standards Act 2000 (ESA), 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.

The policy should identify whether the employer electronically monitors employees and if so, describe how and under what circumstances the employer may do so, as well as the purposes for which such information may be used. It also needs to include the date the policy was prepared and the date any changes were made to the policy.

Normally, the policy should be in place before March 1. However, for 2022, the policy is required by October 11, 2022.

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 or within 30 days of a change being made. A copy also needs to be given to a new employee within 30 days of the day the employee becomes an employee of the employer.

Ontario government provides guidance on electronic monitoring policies

The Ontario Ministry of Labour, Immigration, Training and Skills Development recently updated Your guide to Employment Standards Act with a new section that provides employers with guidance on electronic monitoring policies. It should be noted that the Guide is not a legal document. It is strictly informative and serves only as an aid to the reader.

Some of the key points in the updated Guide are outlined below.

No new right to privacy

The guidance confirms that the new requirements do not establish an employee right against electronic monitoring by their employer and do not grant any new rights to privacy. The new requirements focus on transparency only, with employers needing to describe how and in what circumstances monitoring occurs and the purposes for which the information may be used.

Employee headcount threshold

Employers with 25 or more employees in Ontario on January 1 of any year must have a written electronic monitoring policy. All individual employees should be included, regardless of their part-time or full-time status. If an employer has multiple locations, the employees at each site must be added together to determine if the threshold is met. If two or more employers are treated as one under the ESA, all their employees are included in the count.

If an employer employs less than 25 employees on January 1, but increases in size to 25 employees later in the year, the employer is not subject to the requirements. However, if they continue to have 25 employees on January 1 of the next year, they will need a written policy.

Conversely, if an employer has 25 employees on January 1, they need a policy even if the employee count decreases during the year. If they have less than 25 employees on January 1 of the next year, they do not need a policy for that calendar year.

Statement on whether employer engages in electronic monitoring

Policies must state whether or not the employer electronically monitors employees. The place of work (including from home) and equipment used (whether owned by the employer or employee) do not impact this assessment.

The Guide defines “electronic monitoring” to include all forms of employee and assignment employee monitoring that is done electronically, such as using GPS to track the movement of an employee’s delivery vehicle or tracking the websites used during working hours.

Policies must apply to all of the employer’s employees within Ontario, but different policies for different groups of employees (eg. sales and managerial staff) are permitted.

Description of the method, circumstances and purposes of monitoring

Several examples are provided in the guidance to demonstrate the requirements for describing how and under what circumstances the employer may electronically monitor employees.

For example, in the context of an employer monitoring employee email and online chats, in addition to stating the employer electronically monitors employees, the policy would need to include:

• The method of monitoring – for example, through a software program created specifically for the purpose of monitoring employee emails and online chats.
• The circumstances under which the employer may monitor – for example, any time an employee uses email and online chats.
• The purpose(s) of monitoring – for example, to evaluate employee performance, to ensure the appropriate use of employer equipment, or to ensure work is being performed during working hours.

The Guide confirms that the new ESA requirements do not affect an employer’s ability to use the information obtained through electronic monitoring. The employer can, for example, rely on the information obtained to discipline or terminate the employee.

Contact GGFH LLP for assistance with employee electronic monitoring policies

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.