On July 13, 2022, the Government of Ontario published a chapter in its guide to the Employment Standards Act (“ESA”) on the recently legislated requirement for employers to develop a written policy on electronic monitoring. “Electronic monitoring” includes all forms of employee monitoring that is done electronically. The purpose of this new requirement is for employers to be transparent about whether they electronically monitor employees by describing how and in what circumstances they monitor and by stating the purposes for which the information obtained may be used.
Below we have summarized the requirements and necessary contents of the electronic monitoring policy and have offered key takeaways.
Since coming into force on April 11, 2022, employers who electronically monitor its employees and employed 25 or more employees in Ontario on January 1, 2022 must implement a written electronic monitoring policy by October 11, 2022. Beginning in 2023, employers with 25 or more employees on January 1 of any year must have a written policy in place before March 1 of that year.
When determining how many employees an employer has on January 1 of any year, it must include part-time and casual employees, not just full-time employees. The number of employees must also include employees from all of the employer’s locations in Ontario. Assignment employees of temporary help agencies are employees of the agency, not of the agency’s clients.
If, on January 1 of a given year, an employer does not meet the 25 employee threshold, this will be assumed for the remaining calendar year, even if the employee count increases at a later point that year. This means that the ESA requirement for a written policy on electronic monitoring will not apply.
If, on January 1 of a given year, an employer employs 25 or more employees, then the ESA requirement will apply for the remaining calendar year, even if the employee count decreases at a later point that year.
An employer’s written policy on electronic monitoring of employees is not required to be the same for all of its employees, as long as it includes the following information:
- A statement as to whether the employer engages in electronic monitoring of employees.
- 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.
- The purposes for which information obtained through electronic monitoring may be used by the employer.
- The date the policy was prepared and the date any changes were made to the policy.
An employer’s written policy must be provided to all employees within 30 calendar days of the day the employer is required to have the policy in place or the day the existing policy is being changed. Employers may provide the policy to employees as a printed copy; as an attachment to an email if the employee can print a copy; or as a link to the document online if the employee has a reasonable opportunity to access the document and a printer.
Although an employer’s written policy must contain the purposes for which it may use information obtained through electronic monitoring, the ESA does not limit the employer’s use of the information to the stated purposes.
A complaint can only be made by an employee to the ministry, 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. This ESA requirement does not establish a right for employees not to be electronically monitored by their employer, nor does it create any new privacy rights for employees.
For 2022, employers engaged in electronic monitoring and meeting the 25 employee threshold on January 1, 2022 should begin developing their policy before the October 11, 2022 deadline. Thereafter, on January 1 of any year, the written policy must be implemented by March 1 of that year. The policy must contain all of the required information noted above and must be delivered to all employees in the appropriate format and within the required timeframe. A copy of every written policy must be retained for three years after the policy is no longer in effect.
Many thanks to Eloise Somera for her assistance with this blog.