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What Employers Need to Know: Written Policy on Electronic Monitoring of Employees
Background
Pursuant to Section 41.1.1 of the Employment Standards Act, 2000 (“ESA”), employers with 25 or more employees are now required to have a written policy on the electronic monitoring of employees by October 11, 2022. This is yet another amendment to the ESA under the Working for Workers Act, 20221, which has brought about other changes to the employment law landscape such as the right to disconnect and the prohibition of non-competes.
Recently, the Ontario Ministry of Labour, Training and Skills Development updated its online Guide to the Employment Standards Act, 2000 with a chapter on the electronic monitoring of employees, which provides further insight about this requirement.
Impact on Employers
While the amendments impose disclosure obligations on employers, the ESA makes clear that this new policy requirement does not “affect or limit an employer’s ability to use information obtained through electronic monitoring of its employees.”2 It does not create any new privacy rights for employees, nor does it establish a right for employees not to be electronically monitored by their employer.3
Further, complaints alleging a contravention of this section of the ESA may be made only with respect to subsections (3), (4), and (5), which refer to an employer’s obligation to distribute a copy of its written policy4. Overall, the amendments appear to encourage employer transparency with employees and as such, employers should ensure that their written policies on electronic monitoring are clear and accessible.
Defining “Electronic Monitoring”
Electronic monitoring is not defined by the ESA, but the Guide offers several examples of electronic monitoring: use of GPS to track an employee’s delivery vehicle; use of an electronic sensor to track how quickly employees scan items at a grocery store checkout; and, tracking the websites that employers visit during working hours. If in doubt, it is best to adopt a liberal definition of electronic monitoring.
Requirements for the Policy
An employer’s policy must state whether the employer electronically monitors its employees. The Guide also indicates that an employer’s policy is not limited to the electronic monitoring of employer devices or monitoring in the workplace. Thus, a written policy must also indicate whether the employer monitors employees’ personal devices and any monitoring occurring in a remote work environment.
Where employers engage in electronic monitoring, the policy must also include the following information:
- A description of how and in what circumstances the employer may electronically monitor employees.
- The purposes for which the information obtained through electronic monitoring may be used by the employer.
- The date the policy was prepared.
- The date any changes were made to the policy.
Finally, employers must provide a copy of the policy to all of its employees within 30 days from the date the employer is required to have the policy in place, or, if an existing policy is changed, within 30 days of the changes being made.
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For further information, please contact a member of our growing team: Leslie Dizgun, Paul Schwartzman, or Alyssa Jagt.
This publication is intended only to provide general information. It should not be relied on as legal advice.
1 Employment Standards Act, 2000, SO, 2000, s 41.1.1(1) [ESA]. 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.
2 Ibid, s 41.1.1(7).
3 Written policy on electronic monitoring of employees | Your guide to the Employment Standards Act | ontario.ca