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ESA UPDATES GUIDANCE ON NEWLY MANDATORY ELECTRONIC MONITORING POLICIES

August 17, 2022

On July 13, 2022, Ontario’s Ministry of Labour, Training and Skills Development updated its online guide to the Employment Standards Act, 2000 [ESA] to include guidance with respect to the requirement for employers with 25 or more employees to create a written policy on electronic monitoring of employees (“EM Policy”).

This guidance from the government provides more information for employers as they work to meet the requirement introduced by the Working for Workers Act, 2022 [WFWA] amendments to the ESA on April 11, 2022.

 

What is an Electronic Monitoring Policy?

Significantly, the ESA requirements for an EM Policy do not establish a right for employees not to be electronically monitored by their employer, and do not create any new privacy rights for employees.

Rather, the EM Policy requirements are limited to requiring that certain employers be transparent about whether they electronically monitor employees. As set out in the guidance provided by the Ministry, the requirements are focused on ensuring that employers that electronically monitor employees are transparent about those practices by describing how and in what circumstances that monitoring occurs and setting out the purposes for which the information obtained through the electronic monitoring may be used.

Who is Required to Develop an Electronic Monitoring Policy?

Employers with 25 or more employees as of January 1, 2022, are required to develop a written EM Policy by October 11, 2022. Starting in 2023, and continuing for each subsequent year, any employer that employs 25 or more employees on January 1 of that year must have a written EM Policy before March 1 of that same year.

In determining whether an employer has met the 25-employee threshold, the employer must count the individual number of employees it employs across all its locations, regardless of the number of hours they work. Accordingly, part-time, casual, or assignment employees will each count as one employee, regardless of how many (or how few) hours they work.

After the initial annual assessment date, a change to the number of employees will not change the employer’s EM Policy requirements until the subsequent year. As such, employers that fall below the 25 employee threshold after the initial annual assessment date are still required to maintain an EM Policy until the following year, while those that exceed the 25 employee threshold after the relevant assessment date need not do so until the following year.

Policy Requirements

The employer’s EM Policy may be a stand-alone document, or it may form part of another, more comprehensive document such as a workplace human resource policies manual or employee handbook.

Electronic monitoring is not defined within the ESA. However, the Ministry’s guidance indicates that it includes all forms of employee monitoring that is conducted electronically, including:

  • the use of GPS to track employee movement, such as a delivery vehicle;
  • using sensors to track employee efficiency; and
  • monitoring websites an employee visits during work hours.

 

The EM Policy is not limited to electronic equipment given by the employer or activities that occur while employees are at the workplace. EM Policies can encompass monitoring of personal electronic devices and throughout any remote work arrangement. For example, although the use of video surveillance in the workplace is common, it has not been explicitly mentioned as a form of monitoring captured by the EM Policy. However, given that all forms of employee monitoring conducted electronically are required to be disclosed, and the scope of the examples provided of what constitutes electronic monitoring, it is reasonable to understand that video surveillance in the workplace would also need to be disclosed in an employer’s EM policy.

The employer’s EM Policy must:

  • state whether the employer electronically monitors employees;
  • describe how and in what circumstances it may electronically monitor employees (e.g., a description of what software programs are used to monitor employee emails and online chats, as well as when the employer may monitor these communications);
  • explain the purposes for which information obtained through electronic monitoring may be used by the employer (e.g., an explanation of how the employer may use the information obtained, such as to evaluate employee performance or to ensure appropriate usage of employer equipment during working hours); and
  • state the date the EM Policy was prepared, and the date of any changes made to the EM Policy.

 

The EM Policy must cover all employees of employers who are required to draft an EM Policy. However, an employer may create different policies for different employee groups. Although employers are required to state the purposes for which information obtained through electronic monitoring may be used, the ESA does not limit the employer’s usage of the information to the stated purposes. For example, if an employee had contravened an employer’s workplace policy by using inappropriate websites, then the employer could rely on this information obtained through electronic monitoring to investigate misconduct and ultimately discipline the employee.

Employers must ensure that a copy of the EM Policy is provided to employees who work for them in Ontario within 30 calendar days of the date when the EM Policy is created or changed. New employees must also be given a copy of the EM Policy within 30 calendar days of their start date.

Employers must retain a copy of every written EM policy for three years after the policy is no longer in effect.

Takeaways for Employers

Employers must first determine whether they will be required to have a written EM Policy in place. Employers with 25 or more employees must begin planning what a written EM policy will contain ahead of the October 11, 2022 deadline.

For employers that are required to prepare an EM Policy, it is key to remember that the requirements for the EM Policy do not establish new rights for employers not to be monitored or new privacy rights. However, they do require that the employer be transparent in terms of the monitoring that it is carrying out. Therefore, before rolling out an EM Policy, an employer should consider the degree to which electronic monitoring will be conducted, consider why it engages in monitoring and what has been communicated to employees about the purposes of the monitoring in the past, and ensure that the EM Policy covers all employees, accounting for any variations amongst employee groups.

While electronic monitoring became a more commonplace topic of discussion during the pandemic when some employers were worried about employees not being productive when working remotely, it is important to keep in mind that the EM Policy is not exclusive to remote work. It covers all electronic monitoring that may be occurring in the workplace context, some of which may apply to in-person work, and some of which may have been in place prior to an employer’s shift (temporary or otherwise) to remote work in the pandemic context.

Finally, employers should keep in mind that having a policy like this that requires transparency about monitoring mechanisms can be beneficial to employers. Some employers have been concerned that by disclosing monitoring mechanisms, those mechanisms may lose their efficacy. However, when employees know that monitoring is in place, it can be a significant deterrent to misconduct. Additionally, disclosing information that has been gathered through these methods is key in ensuring that any discipline that the employer chooses to implement is not challenged on grounds of procedural fairness. Rather than using “gotcha” tactics to catch the employee in a lie, showing the employee the information that has been captured through electronic monitoring mechanisms in advance and giving them a full chance to respond will help employers to be able to rely on the misconduct in their discipline and termination decisions, instead of opening those decisions up to challenge on procedural grounds.

 

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