We recently reported on the Ontario requirements relating to the electronic monitoring of employees, newly introduced under the Working for Workers Act, 2022. Designed to address employee privacy issues, the requirements force certain employers to prepare a written policy on the electronic monitoring of employees. 

While the legislation contains some detail, the Ontario Ministry of Labour, Immigration, Training and Skills Development has recently issued guidance on electronic monitoring policies, providing additional information.

Larger employers must have an electronic monitoring policy

The Working for Workers Act, 2022 amended the Employment Standards Act, 2000 to require employers that employ 25 or more employees (as of January 1 of any year) to have a written policy with respect to the electronic monitoring of employees. 

According to the Employment Standards Act, the policy, which must be in place for all employees in Ontario, needs to contain: 

• Whether the employer electronically monitors employees;
  • If so, the policy must then describe how and in what circumstances the employer may electronically monitor employees, as well as 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 under the regulations of the Employment Standards Act.

Deadlines for creating electronic monitoring policy

Usually, the policy must be in place before March 1. However, as a transitional measure for 2022, employers that met the 25-employee threshold as of January 1, 2022, have until October 11, 2022, to have a written policy in place. 

Finally, an employer must 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, if an existing policy is changed, within 30 days of the changes being made. Employers need to give a new employee a copy within 30 days of them becoming an employee (provided this is later than 30 days later than the day the employer needs to have the policy in place).

Provincial government guidance on electronic monitoring policies

The new guidance issued by the Ontario government forms part of “Your Guide to the Employment Standards Act”, which is a source of information about key sections of the Employment Standards Act. It is not a legal document and is for information and assistance only. A few of the key points in the guidance are mentioned below.

Threshold of 25 or more employees

An electronic monitoring policy is required if the employer employs 25 or more employees in Ontario on January 1 of any year. The guidance instructs employers to count the individual number of employees it employs on January 1.

Counting the number of employees

The number of “full-time equivalent” workers is irrelevant when counting the number of employees. Additionally, it does not matter if employees are split across multiple worksites or locations. So long as 25 employees are employed in total across all locations, an electronic monitoring policy is required, even if less than 25 employees are located at individual sites.

If multiple employers are treated as one employer for the purposes of the Employment Standards Act, then all of those employers’ employees in Ontario are included in the count.

If the employer starts the calendar year with less than 25 employees but reaches this threshold later that year, they do not need to create an electronic monitoring policy until the next calendar year. On the other hand, an employer is not relieved from being required to have a policy if their employee count drops below 25 during the year. They are only absolved of this requirement if their count remains below 25 on January 1 of the following calendar year.

Content of the electronic monitoring policy

According to the government’s guidance document, employers can choose to have a single electronic monitoring policy for all employees or different policies for various groups of employees.

“Electronic monitoring” includes all forms of employee monitoring that is done electronically. Electronic monitoring policies are not limited to devices issued by the employer or monitoring at the workplace.

The government’s guidance contains some practical examples, including that of an employer who tracks an employee’s delivery vehicle using GPS. In such a situation, the employer’s electronic monitoring policy must not only state that the employer electronically monitors its employees but would also need to include the following information:

• How the employer may electronically monitor its employees – for example, by tracking the employee’s delivery vehicles through GPS;
• The circumstances in which the employer may monitor its employees – for example, by tracking the employee’s movement in the vehicle for all working hours on every workday; and
• The purposes for which the information gathered by the employer may be used – for example, to help set delivery routes, to ensure employees do not deviate from their delivery route without authorization, and to discipline employees who are untruthful about their whereabouts during working hours.

No new privacy rights and limitations on investigations

The provincial government’s guidance confirms that these new sections of the Employment Standards Act do not create a right for employees not to be electronically monitored at work. In other words, employees do not receive any new private rights under the amended Act. 

Additionally, the Employment Standards Act does not limit an employer’s ability to use the information obtained through electronic monitoring to the purposes stated in the policy. 

Employees are also limited in the complaints they can file about their employer’s electronic monitoring policy to the Ministry of Labour, Immigration, Training and Skills Development. Employees may only file complaints with the Ministry about an employer’s alleged failure to provide the employee with a copy of the policy within the required timeframe.

Contact Haynes Law Firm in Toronto for Advice on Electronic Monitoring Policies

Workplace law in Ontario is constantly changing. As such, it is essential to get advice from a seasoned employment lawyer. Haynes Law Firm can guide you through these developing areas of the law. We can help draft employment policies, including electronic monitoring policies, or review existing policies to ensure they comply with all legal requirements. Our firm will happily assist you to meet the electronic monitoring policy deadline of October 11, 2022.

Haynes Law Firm helps employers and employees throughout Ontario achieve practical solutions to legal issues and conflict management in employment law and civil litigation. Contact us online or call us at 416-593-2731.