Mark Your Calendars: Ontario Releases Additional Guidance to Employers on Electronic Monitoring Policies – Employee Rights/Labour Relations

As we specified in our newsletter of March 31, 2022, Bill 88An Act to enact the Digital Platforms Workers Rights Act 2022 and to amend various Acts(there “Law“) has now come into force in Ontario.

The law changed Ontario law Employment Standards Act(there “ESA“) introducing a new requirement for Ontario-based employers with 25 or more employees to develop a written policy regarding electronic employee monitoring. As an introductory grace period in 2022, employers have until October 11, 2022, to develop their policies. After that date, employers with 25 or more employees on January 1 of any calendar year must have a written policy by March 1 of that year.

Employers were waiting for advice on the application of this legislation. On July 12, 2022, Ontario Guide to the Employment Standards Act(there “Guide“) has been updated to include a new section on written electronic monitoring policies, providing much-needed clarification and advice to employers in Ontario.

Here’s what employers need to know and how they can prepare.

What is “electronic monitoring”?

“Electronic monitoring” is not a defined term in the ESA. However, the Guide specifies that electronic monitoring
includes all forms of monitoring of employees and employees on assignment that is done electronically.

Although the Guide does not provide an exhaustive list of the types of monitoring covered by this term, it does provide some examples that employers can use to help them interpret the requirements of the legislation:

(1) GPS tracking of the movement of a delivery vehicle driven by an employee;

(2) Systems that track the websites that employees visit during working hours; and

(3) Systems that monitor employee emails and/or online chats with colleagues.

Interestingly, the Guide makes it clear that an employer’s policy should not be limited to only electronic devices or equipment provided by the employer. Where only to electronic monitoring that occurs while employees are at the workplace or on “work time”. Therefore, policies should also address electronic surveillance that occurs on an employee’s personal devices and/or that occurs after normal working hours.

What should an electronic monitoring policy include?

The Guide states that electronic monitoring policies can be stand-alone documents, but can also be part of another policy or procedure document. However, they to have to include the following information:

  • A statement as to whether the employer engages in electronic monitoring of employees.
    • Even if an employer does not electronically monitor its employees, the employer remains subject to the requirement of the policy and must expressly state that it does not electronically monitor its employees.

  • If an employer Is electronically monitor its employees, the employer’s policy must also contain the following information:
    • A description of How? ‘Or’ What the employer monitors electronically;

    • A description of the terms in which the employer can monitor electronically;

    • The purposes for which information obtained through electronic monitoring may be used by the employer; and

    • The date the policy was prepared and the date any changes to the policy were made.

The Guide clearly states that all employees, including executive, managerial and/or supervisory personnel, to have to be covered by a policy, although an employer need not have
same policy that applies to all employees. For example, if a certain group of employees is electronically monitored in a way that other employees are not, an employer is permitted to develop a specific policy applicable only to that group of employees, as long as all employees are covered.

Use of Electronic Information

Interestingly, the Guide also states that even if a purpose or use is not clearly written in a policy, an employer’s use of electronic information is not necessarily limited only to what is written in politics. For example, if an employer uses electronic systems to monitor employee productivity and later determines that an employee was accessing inappropriate websites contrary to employer policies, the employer can rely on this information to sanction or dismiss the employee.

What does it mean? Given the stated intent of the legislation, it appears that the purpose of electronic monitoring policies is to provide an increased level of transparency regarding electronic monitoring, but not necessarily to prevent an employer from electronically monitoring or to prevent him from legally using the information that they have obtained. This is an important distinction that employers need to understand.

Electronic Surveillance Complaint Limitations

The Guide also sets out the limited circumstances in which an employee can file a complaint about their employer’s electronic surveillance practices.

A complaint can only be done to the Ministry of Labour, Training and Skills Development, or be investigated by an employment standards officer, in the event of an alleged violation of the employer’s obligation to provide a copy of written policy in a timely manner to its employees or assignment employees. To clarify more, a complaint alleging any other violation of the electronic employee monitoring policy may not be filed with or investigated by an employment standards officer.

In practice, this means that employees are not allowed to file a complaint about the types of electronic surveillance their employer engages in, how electronic information is used, or any violation of the policy itself. Again, this suggests that mandatory electronic monitoring policies are an effort to increase transparency and do not go so far as to give employees the power to challenge their employer’s electronic monitoring and/or monitoring practices.

However, the Guide clarifies that employers may wish to obtain legal advice to determine whether their policy creates any rights an employee may have outside the ESA. Therefore, careful drafting of these types of policies is essential to ensure that an employer does not inadvertently grant a right or benefit greater than that provided by the ESA.

Policy Changes, Copies to Employees, and Proper Record Keeping

Any policy developed should indicate the date it was prepared and the date changes were made. In addition, any employer, including a temporary help agency, that is required to have a written policy must provide a copy of the policy to its employees within 30 calendar days of:

  • The day the employer is required to have the policy in place; and

  • The policy being modified (if an existing policy is modified).

Similarly, employers must also provide a copy of the written policy to any new employee within 30 calendar days of the
later the date the person becomes an employee or the date the employer is required to put the policy in place.

Finally, an employer may provide the policy in the form of a physical written copy, an attachment to an email, or a link to the document online assuming an employee has a reasonable possibility of to access. All written copies of the policy must be retained for three (3) years after the date the policy is no longer in effect.

Key takeaways and next steps

To prepare for the deadline, employers should start looking at the ways in which employees are monitored in the workplace. This will involve examining both “passive surveillance” practices, such as camera systems and access codes/door passes, and “active surveillance” practices, such as GPS tracking and/or software that tracks employee productivity on workplace computers. In this regard, the first step in developing an electronic monitoring policy will largely consist of an audit of current employer practices.

Employers should set October 1, 2022 to ensure they meet the October 11, 2022 deadline for implementing a policy. As a useful tool, employers should use the control List when preparing their respective policies on electronic monitoring.

Finally, remember that an electronic monitoring policy should not replace policies that address acceptable uses of company electronic equipment, Internet systems and/or standards of conduct.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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