As of April 11, 2022, the Employment Standards Act, 2000 (Ontario) ("ESA") was amended to require employers to implement an electronic monitoring policy as of October 11, 2022. See our blog here for a discussion of this statutory amendment.
On July 13, 2022, the Government of Ontario updated its Guide to the Employment Standards Act, 2000 ("Guide") to include guidance for employers on electronic monitoring policies. As with the Government's prior legislative policy requirement with respect to disconnection from work (see our blog here), employers have been hopeful that this guidance would provide some practical insight into the scope of the electronic monitoring policy requirement.
As a reference point, the Guide describes "electronic monitoring" as including all forms of employee and assignment monitoring that is done electronically.
While the Guide does not provide an exhaustive list of what is considered to be "electronic monitoring", leaving that somewhat in the hands of employers to determine, it does provide some examples including the use of a Global Positioning System ("GPS") to track the movement of an employee's delivery vehicle, use of electronic sensors to track how quickly employees scan items at a grocery store check-out, and tracking the websites employees visit during work hours.
As a key point, the Guide clarifies and confirms that the ESA does not establish a right to not to be electronically monitored and it does not create any new privacy rights for employees. Rather, it requires that employers put in place a policy to inform employees what the organizational approach is to electronic monitoring (whether new or existing).
The Guide states that an electronic monitoring policy must contain:
- A statement as to whether the employer engages in electronic monitoring;
- Where the employer does electronically monitor employees, the
policy must 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; 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.
The Guide further highlights the following helpful points concerning the policy requirements under the ESA:
- Who is covered: The policy on electronic monitoring must apply to all of the employer's employees in Ontario that are covered by the ESA. This includes management and executive-level employees as well as other groups of employees who might otherwise be subject to exemption categories under the ESA.
- Determining the employee threshold: To determine how many employees an employer has for purposes of assessing whether a policy is required, the employer must count the number of employees it employs in Ontario as of January 1 of each year. Where an employer has multiple locations in Ontario, all employees employed at each location must be included when determining whether the 25-employee threshold has been met. If as of January 1, there are 25+ employees in Ontario, an electronic monitoring policy is required. If there are less than 25 employees on January 1, there is no policy requirement in that year, even if that threshold is exceeded at any point in the year thereafter. This assessment must be done annually. Employers who do not meet the threshold can still elect to have a policy in place, but this is not required. Notably, this is the same threshold assessment as applies to disconnection from work policies under the ESA.
- Use of Information Gathered Through Electronic Monitoring: Although employers are required to state the purpose for which they are monitoring employees, they are not limited in how they later use the information gathered through electronic monitoring by the purpose(s) stated in the policy. For example, if a delivery company monitored GPS information to ensure drivers stayed on route, and they later found out through the GPS data that an employee was spending significant time not at work, the employer could use the information for discipline despite not listing discipline as a reason for monitoring in their policy.
- What is the deadline: In 2022, the deadline for the implementation of the policy is October 11, 2022. In all years thereafter, the deadline is March 1 of that year. Note that the deadline for distribution of the policy to employees is 30 calendar days from the date the policy is implemented.
- No one-size-fits all needed: The employer can have a single policy that applies to all employees or multiple policies (either in a single document or in multiple documents) for different groups of employees.
- What must employers do once they have policy: The written policy must be provided to all employees within 30 calendar days of the policy being prepared or changed.
- Record retention requirements: Employers must retain a copy of their policy for three years after the policy is no longer in effect. Note that this retention approach should be followed where policies are amended.
- Dealing with employee complaints: An employee can only make a complaint where there is an alleged contravention of the employer's obligation to provide a copy of the policy to the employee. If a contravention is found, the employer will be ordered to provide a copy. A complaint alleging a contravention of the policy itself will not be investigated by the Ministry of Labour.
- For purposes of 2022, employers in Ontario with 25 or more employees on January 1, 2022 have until October 11, 2022to have a written policy on electronic monitoring in place. As such, employers who meet the threshold ought to be engaging their internal teams to determine what types of electronic monitoring may be in use within their organization to date (or could be in the future), so that those systems of monitoring can be reduced to writing in advance of October 2022.
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