New this October: Electronic Monitoring Policies

By Sébastien Huard, of Emond Harnden LLP

Bill 88, the?Working for Workers Act, 2022, received Royal Assent on April 11, 2022. It amended the?Employment Standards Act, 2000?(the “ESA”), to introduce a new requirement for employers, including municipalities, to implement a written policy regarding their electronic monitoring practices with respect to employees. The deadline to have the policy in place is?October 11, 2022.?

While the ESA does not define “electronic monitoring,” the Ministry of Labour has stated that it includes all forms of employee monitoring done electronically.?Examples include GPS tracking of delivery vehicles, and tracking the websites that employees visit during work hours.?Electronic monitoring is not limited to the employer’s devices, or to the employer’s workplace, however; the monitoring of an employee working remotely and/or using their own personal computer for work would also be captured.

?Application

An employer with 25 or more employees on January 1 of a given year is required to have a policy in place for that year.?After 2022, the deadline will be before March 1 in any given year for an employer who has 25 or more employees as of January 1 of that year.?

An employer may have a single policy that applies to all employees, or different policies that apply to different groups of employees.?

?Policy Contents

?Notably, employers are not required by Bill 88 to guarantee a right to privacy for their employees and they are not prevented from electronically monitoring their employees, nor are they limited as to how they use the information gleaned from such monitoring.

Instead, the new ESA provisions simply require employers to have a policy that states whether or not they electronically monitor employees.?If an employer does, then the policy must include a description of how and in what circumstances the?employer?may monitor employees.?The policy must also state the purposes for which information obtained through electronic monitoring may be used. Finally, the policy must contain the date it was prepared and the date any changes were made.?

Communication

Employers must provide a copy of the policy to their employees within 30 calendar days of the day the employer was required to have a policy in place, and within 30 days of changes being made. New employees must receive a copy of the policy within 30 days of hire.

?Significantly, the?Ministry of Labour has stated that the only alleged contravention about which an employee can complain to the Ministry, or that an employment standards officer can investigate, is an allegation that an employer failed to provide an employee with a copy of the policy within the required timeframe.?

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Conclusion

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Municipal employers should prepare for the October deadline by enacting an electronic monitoring policy that is tailored to their workplace(s). Given the limited scope of the requirements, however, they should be cautious not to guarantee any rights to privacy that are not required. Municipalities are therefore encouraged to seek legal advice regarding the new electronic monitoring policy requirements.