Mark Your Calendars: Ontario Releases Further Guidance to Employers on Electronic Monitoring Policies

As we set out in our newsletter of March 31, 2022, Bill 88, An Act to enact the Digital Platform Workers’ Rights Act, 2022 and to amend various Acts, (the “Act”) has now come into force in Ontario.

The Act amended the Ontario Employment Standards Act (the “ESA”) by introducing a new requirement for Ontario-based employers with 25 or more employees to develop a written policy with respect to the electronic monitoring of employees. 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 as of January 1 in any calendar year must have a written policy before March 1 of that same year.

Employers have been awaiting guidance on the application of this legislation. On July 12, 2022, Ontario’s Guide to the Employment Standards Act (the “Guide”) was updated to include a new section on written electronic monitoring policies, providing some much-needed clarity and guidance for Ontario employers.

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

What is ‘Electronic Monitoring’?

“Electronic monitoring” is not a defined phrase under the ESA. However, the Guide states that electronic monitoring includes all forms of employee and assignment employee monitoring that is done electronically.

Although the Guide does not provide an exhaustive list of the types of monitoring captured by this phrase, it does provide a few examples that employers can use which can help them interpret the legislation’s requirements:

(1) GPS tracking movement of an employee-driven delivery vehicle;

(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 is clear that an employer’s policy must not be limited to only those devices or electronic equipment that is provided by the employer or only to electronic monitoring that happens while employees are at the workplace or on “worktime.” Accordingly, policies must also speak to electronic monitoring that occurs on an employee’s personal devices and/or that occurs after regular working hours.

What Does an Electronic Monitoring Policy Need to Include?

The Guide states that electronic monitoring policies may be standalone documents but also can form part of another policy or procedure document. However, they must 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 policy requirement and must specifically state that it does not monitor its employees electronically.
• If an employer does electronically monitor its employees, the employer’s policy must also contain the following information:
  • A description of how the employer electronically monitors;
  • A description of the circumstances in which the employer may electronically monitor;
  • The purposes for which information obtained through electronic monitoring may be used by the employer; and
  • The date in which the policy was prepared and the date any policy changes were made.

The Guide is clear that all employees, including executive, managerial and/or supervisory staff, must be covered by a policy, although an employer does not need to have the same policy that is applicable to all employees. As an 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 to only 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 to solely what was written in the policy. As an 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 discipline or terminate the employee.

What does this mean? Given the stated intent of the legislation, it appears that the purpose of electronic monitoring policies is to ensure a level of enhanced transparency with respect to electronic monitoring, but not to necessarily prevent an employer from electronically monitoring or prevent them from lawfully using the information that they have obtained. This is an important distinction for employers to understand.

Limitations on Complaints Pertaining to Electronic Monitoring

The Guide also sets out the limited circumstances in which an employee can file a complaint with respect to their employer’s electronic monitoring practices.

A complaint can only be made to the Ministry of Labour, Training and Skills Development, or be investigated by an Employment Standards Officer, where there is an alleged contravention of the employer’s obligation to provide a copy of the written policy within the required timeframe to its employees or assignment employees. For further clarity, a complaint alleging any other contravention of the policy on electronic monitoring of employees cannot be made to, or be investigated by, an Employment Standards Officer.

Practically speaking, this means that employees are not permitted to bring a complaint forward with respect to the types of electronic monitoring that their employer engages in, the manner in which electronic information is used, or any contravention of the policy itself. Again, this suggests that mandatory electronic monitoring policies are an effort at increased transparency and do not go so far as to give employees the power to challenge their employer’s practices with respect to electronic surveillance and/or monitoring.

The Guide, however, does state that employers may want to obtain legal advice to determine if their policy creates any entitlements that an employee could enforce outside of the ESA. Accordingly, careful drafting of these types of policies is critical to ensure that an employer does not inadvertently provide a greater right or benefit than that provided by the ESA.

Changes to the Policy, Copies to Employees and Appropriate Record Keeping

Any policy developed must indicate the date on which it was prepared and the date that any changes were made. Further, 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 from:

• The day the employer is required to have the policy in place; and
• The policy being changed (if an existing policy is changed).

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

Lastly, an employer can provide the policy in the form of a physical written copy, an attachment to an email, or a link to the document online assuming that an employee has a reasonable opportunity to access the same. All written copies of the policy are required to 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 begin to examine the ways in which employees are monitored in the workplace. This will involve looking at both “passive monitoring” practices, such as camera systems and access codes/door passes, and “active monitoring” practices, such as GPS tracking and/or software that tracks employee productivity on workplace computers. In this regard, the initial stage of preparing an electronic monitoring policy will very much be an audit of current employer practices.

Employers should diarize October 1, 2022, to ensure that they meet the October 11, 2022, deadline for implementation of a policy. As a helpful tool, employers should utilize the Guide’s checklist when preparing their respective policies on electronic monitoring.

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