Tax & Trade Blog
Ontario provides Guidance on Electronic Monitoring Policies
New Part XI.1 to the Employment Standards Act (the “ESA”), titled “Written Policy for Electronic Monitoring”, generally requires employers who had 25 or more employees as of January 1, 2022 to put in place a written policy with respect to electronic monitoring of employees by October 11, 2022, and to share that policy with their employees. The Ontario government indicated that this requirement would “provide transparency for employees with the goal that employers will tailor electronic monitoring to legitimate business purposes”.
In July 2022, Ontario updated the online Guide to the Employment Standards Act (the “Guide”) to add a new section giving employers basic information on the need for a written policy for electronic monitoring of employees, and provide some relevant examples for employers to consider.
Which Employers Need a Policy?
Going forward, employers with 25 or more employees as of January 1st must have a written electronic monitoring policy by March 31st of that same year.
This 25-employee threshold considers the total number of individual employees (not “full-time equivalents”), regardless of the number of hours worked. This count includes employees working from home, on probation, or laid off, and may include employees working for “related employers”. More information on this calculation can be found here.
What does the Policy Require?
Where a written electronic monitoring policy is required, Employers must ensure it includes: (1) a statement clearly indicating whether employees are being electronically monitored or not; (2) the date the policy was prepared and the date of any changes; (3) if the employer does electronically monitor employees: (a) a description of how employees may be monitored; (b) a description of the circumstances in which employees may be monitored; and (c) the purposes for which the information collected may be used by the employer.
There is no limitation on the hours or forms of electronic monitoring to be reported. Accordingly, if the employer regularly monitors its employees’ posts on their personal social media accounts, or has software installed on an employee’s personal computer capable of monitoring their keystrokes while they work from home, that should be disclosed.
Additionally, employers should consider what information they may be unintentionally gathering – for instance the use of RFID key fobs to unlock doors can also be used to track employee movement, how long they were in the washroom, etc.
The Ontario government has set out two examples of what an electronic monitoring policy should contain in the Guide here. The examples deal with two common situations: (1) an employer tracking an employee’s delivery vehicle using GPS; (2) an employer monitoring its employees’ e-mails and online chats.
Employees must receive a copy of the policy within 30 days of that policy being put in place, and new employees within 30 days of joining. Old policies have to be retained by the employer for 3 years after the policy ceases to be in effect.
There is Some Flexibility for Employers
The employer’s electronic monitoring policy is required to comprehensively cover all employees in Ontario, but it need not be the same for all employees. Policies for delivery drivers, retail location workers, and head office workers, for example, might each be different.
Significantly, there do not appear to be any consequences under the ESA where an employer breaches their own electronic monitoring policy and monitors, or uses information, in a manner which was not described in the policy.
On this point the Guide expressly indicates that the written policy does not affect or limit an employer’s ability to use information obtained through electronic monitoring (see here).
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