Bill 88, the Working for Workers Act, represents one of many attempts by the Ontario legislature to respond to the unique challenges arising during the COVID-19 work-from-home era. One element of this bill will amend the Employment Standards Act, 2000 ("ESA") to account for the use of electronic monitoring software by employers. As of October 11, 2022, employers with 25 or more employees are required to have a written policy which addresses the electronic monitoring of employees.
Electronic monitoring software, though not exclusively used by employers of remote workers, is typically used to surveil the attendance and productivity of those working from home. It is this remote relationship that the new ESA provisions intend to regulate, although in-person employees will still be entitled to notice if such software is being used to monitor them.
What are the implications for employers?
Employers are not prohibited from utilizing monitoring software. They must, however, have a policy which addresses the following:
- Whether the employer electronically monitors employees and if so,
- a description of how and in what circumstances the employer may electronically monitor employees, and
- 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.
- Such other information as may be prescribed.
A copy of the policy must be provided to employees before October 11, 2022, and when changes are made to the policy, updated copies which reflect those revisions must be provided within 30 days of the date on which the changes were made.
When a new employee is hired, they must be provided with a copy of the policy within 30 days of their start date. If using the services of a temporary help agency, those employees must be provided with a copy within 24 hours of the start of their assignment, or within 30 days from the day, the employer is required to have the policy in place, whichever is later.
What are the implications for employees?
While there is a presumption that employees have a reasonable expectation of privacy, this presumption can be displaced through the employer's electronic monitoring or other policy.
There is no recourse under the Working for Workers Act if an employee finds the content of the policy or scope of monitoring to be unreasonable, although certain common law remedies may be available depending on the facts and circumstances. Employees may complain, however, if they are not provided with a copy of the employer's electronic monitoring policy in accordance with the applicable time frames.
What should be included in a monitoring policy?
The legislative requirements center around transparency when using electronic monitoring rather than limiting the use of this technology. Thus, employers are simply required to state whether or not they will be using such technology and if so, they must explain in what circumstances they intend to do so. The policy must also include the date it was prepared and the date of any changes made to the policy.
While the current requirements are minimal, the legislation requires that the policy include "such other information as may be prescribed," hinting at the potential expansion of the legal requirements for electronic monitoring policies.1
Employers should consider the following when drafting their policy:
- Is the use of monitoring software reasonable and necessary? (Is there a specific need for it? Will it fulfill this purpose and if so, how?)
- What is the scope of the software? (Does it monitor all activity, or simply record when people sign on to their computer, and sign out when they are finished working?)
- How will the information collected be used? (For example, will it be used to determine employee productivity? To confirm attendance? To keep records of how long an employee is away form their computer during the day?)
- How can the employer ensure all employees are made aware of the existence of the policy and its content? (The policy could be made available online and employees notified of the date on which becomes effective. The employer could require the employee to acknowledge in writing that they have read and understood the content of the policy).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.