The Working for Workers Act 2022 (Act) received royal assent and became law in Ontario on April 11, 2022.

We recently examined one of the important changes made by this Act – it will create the standalone Digital Platform Workers’ Rights Act 2022. This legislation will establish foundational rights and protections for digital platform workers.

This article takes a look at another key requirement introduced by the Act – a requirement for larger employers to have a written policy with respect to the electronic monitoring of employees.

Larger employers must have an electronic monitoring policy

The Act amends the Employment Standards Act 2000, introducing new section 41.1.1 titled “written policy on electronic monitoring.” It came into force on April 11, 2022.

Which employers need to have an electronic monitoring policy?

An employer that employs 25 or more employees on January 1 must have a written policy with respect to the electronic monitoring of employees.

What information needs to be included in the electronic monitoring policy?

According to the Act, the policy is required to be in place for all employees. It is necessary to 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, 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.

When does the electronic monitoring policy need to be in place?

Ordinarily, if an employer employs 25 or more employees on January 1, the policy needs to be in place before March 1 of that year. However, there is a transitional provision for the first year in which the Act is in force. If an employer employs 25 or more employees on January 1, 2022, the policy needs to be in place by October 11, 2022.

When does the electronic monitoring policy need to be given to employees?

Employers 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).

What has the Government said?

On April 5, 2022, during the progress of Bill 88 through the Legislative Assembly, the Minister of Labour, Training and Skills Development, Monte McNaughton, said:

Delivery persons are being followed by GPS, construction workers are using phones and tablets on the job site and office workers are logging on from home—often from kitchen tables, living rooms or other shared spaces … Our new legislation, if passed, would be the first of its kind in Canada. Ontario would once again be breaking new ground and taking historic steps to protect privacy by addressing electronic monitoring in the workplace. Our government is breaking down barriers by increasing transparency. 

What does the new requirement not do?

The Government has confirmed that the new requirement does not establish a right for employees not to be electronically monitored by their employer or create any new privacy rights for employees. 

The Act also says that nothing in the new section affects or limits an employer’s ability to use information obtained through electronic monitoring of its employees. Furthermore, it provides that complaints alleging a contravention of the new section may only be made with respect to the requirement that an employer provides a copy of the electronic monitoring policy to its employees.

Does the Government need to go further to protect employee privacy at home? 

Where a policy is required under the Act, it needs to apply to all employees. This includes employees working in any environment, including the workplace and at home.

The COVID-19 pandemic has seen many more people working from their homes rather than strictly in the office or workplace. This has increased privacy concerns as it has become increasingly difficult to know where to draw the line between personal and private space. Some methods by which employers may seek to monitor employee performance in a remote environment arguably invade employee privacy.

Information and Privacy Commissioner sought changes to the Bill

Patricia Kosseim, Ontario’s Information and Privacy Commissioner, has expressed concerns about this. She wrote:

Employee monitoring software, or “bossware” as it’s sometimes called, has serious and far-reaching capabilities. It can monitor everything from our keystrokes and mouse clicks to our emails and video calls. It can even analyze our facial expressions to interpret — and sometimes nudge — our emotions and behaviours.

The Commissioner explains that as employees continue to work from offsite locations, employers are seeking new ways of supervising and measuring the performance of their employees remotely. Her view is that from a privacy perspective, the new Act does not go far enough. She calls for measures beyond transparency, namely governing electronic workplace monitoring under a more comprehensive Ontario private sector privacy law, similar to what was proposed last year in a Government white paper on modernizing privacy in the province.

Contact Haynes Law Firm in Toronto for Assistance with New Employment Legislation

Workplace law in Ontario is constantly changing. As such, it is important to get advice from a seasoned employment lawyer. Haynes Law Firm can guide you through these developing areas of the law. For example, we can help you with drafting employment policies or reviewing them to ensure they comply with all applicable requirements. 

Haynes Law Firm helps employers and employees throughout Ontario achieve effective solutions to legal issues and conflict management in employment law and civil litigation. Contact us online or call us at 416.593.2731.