EYE SPY: Employers Now Obligated to Develop Policy on Electronic Monitoring of Employees 

By October 11th, 2022, all employers in Ontario, with 25 or more employees, must have a written policy in place disclosing whether and how they electronically monitor their employees (the “Electronic Monitoring Policy”).

The requirement to have an Electronic Monitoring Policy comes with the passage, on April 11^th, 2022, of the Working for Workers Act, 2022, S.O. 2022, c. 7 – Bill 88, which amended the Employment Standards Act 2000 (“ESA”) to mandate the Electronic Monitoring Policy.

On July 21, 2022,  Ontario’s Ministry of Labour, Training and Skills Development (the “Ministry”) provided further guidance to improve employers’ understanding of what is required of them under this new law. We have summarized the salient points of this guidance below:

What is Electronic Monitoring?

Although “electronic monitoring” is not defined in the ESA, the Ministry’s guidance provides that “electronic monitoring” includes all forms of employee and assignment employee monitoring that is done electronically. Some examples include where an employer:

• tracks the websites that an employee visits during working hours;
• monitors employee emails and online chats;
• uses GPS to track the movement of an employee’s delivery vehicle; or
• uses an electronic sensor to track how quickly employees scan items at a grocery store check-out.

Electronic monitoring applies equally where the employee works from home, at the employer’s workplace, or under a hybrid “workplace/home” model.

What Must the Electronic Monitoring Policy Include?

The essential requirement of the Electronic Monitoring Policy is a statement as to whether the employer engages in electronic monitoring of employees or not. Where the employer does electronically monitor employees, the policy must also contain the following information:

• A description of how the employer may electronically monitor employees.
• A description of the circumstances in which the employer may electronically monitor employees. For example, the employer monitors employee emails and online chats through a software program created specifically for this purpose.
• The purposes for which information obtained through electronic monitoring may be used by the employer.  For example, whether the employer uses the information obtained through electronic monitoring of employee emails and online chats to evaluate employee performance and to ensure work is being performed during working hours.
• The date theElectronic Monitoring Policywas prepared.
• Any changes that were made to the Electronic Monitoring Policyand the date the changes were made.

Who is included in the 25-Employee Threshold Count?

Anyone who meets the definition of “employee” is counted, including:

• homeworkers;
• probationary employees;
• officers of a corporation who perform work or supply services for wages;
• employees on definite term or specific task contracts of any length;
• employees who are on lay-off, so long as the employment relationship has not been terminated and/or severed;
• employees who are on a leave of absence;
• employees who are on strike or who are locked-out;
• employees who are exempt from the application of all or part(s) of the ESA (although these employees may not be covered by the electronic monitoring provisions of the ESA, they are included in the count to determine whether the employer employs at least 25 employees); or
• Assignment employees of temporary help agencies are employees of the agency and are included in the count to determine if the temporary help agency has met the 25 employee threshold.

What are the Employer’s Disclosure and Record Keeping Requirements?

Employers must take care to ensure they are meeting the disclosure timelines in the ESA by providing the Electronic Monitoring Policy to current employees in Ontario within 30 calendar days after the policy is prepared, or changed, and to new employees within 30 calendar days of hire. In respect of formatting, Employers can provide the Electronic Monitoring Policy as a printed copy, as an attachment to an email (as long as the employee has access to a printer), or as a link to the document online if the employee has a reasonable opportunity to access the document and a printer. Finally, employers are required to keep all previously implemented policies on electronic monitoring for a period of three years after the policy is no longer in effect.

Can Employees Complain About an Electronic Monitoring Policy to the Ministry?

Employees may launch complaints with the Ministry, against their employer, for not providing a copy of the electronic monitoring policy to employees. Any such complaint may result in an investigation by an employment standards officer.  A complaint alleging any other contravention of the policy on electronic monitoring of employee provisions cannot be made, or be investigated by, an employment standards officer. This does not mean an employee is prohibited from pursuing legal action against an employer in response to an Electronic Monitoring Policy which is perceived, by the employee, to be too intrusive. 

Key Points and Next Steps for Employers

The changes to the ESA do not gift employees any new rights to privacy. Rather, the changes give some employees the right to be provided with information about the extent to which they are being electronically monitored by their employer. Despite that, employers should be cautious about overly intrusive electronic monitoring, which can give rise to constructive dismissal or privacy tort claims by employees. To mitigate these risks, employers should ensure that their electronic monitoring practices are generally reasonable in the circumstances. If your business requires guidance or assistance with developing an Electronic Monitoring Policy, please reach out to Tanya Kuzman at Mills & Mills LLP.

At Mills & Mills LLP, our lawyers regularly help clients with a wide range of legal matters including business law,  real estate law, estate law, employment law, health law, and tax law. For over 130 years, we have earned a reputation amongst our peers and clients for quality of service and breadth of knowledge. Contact us online or at (416) 863-0125. The material provided through the Mills & Mills LLP website is for general information purposes only. It is not intended to provide legal advice or opinions of any kind.