Employers have now received some clarification on the new provincial requirements to have an electronic monitoring policy in their workplace this fall.
The Ontario's Ministry of Labour, Immigration, Training and Skills Development introduced a chapter on electronic monitoring policies in its Guide to the Employment Standards Act.
As previously reported, employers must have a written policy on the electronic monitoring of employees in place by October 11, 2022. This requirement only applies to employers in Ontario with 25 or more employees (as of January 1 2022) covered by the Employment Standards Act, except the Crown, Crown agencies, etc. It applies regardless of whether employees are working in the workplace, in the field, or at home.
The new guidance provides a few examples of what constitutes "electronic monitoring", including where an employer:
- Uses GPS to track the movement of an employee's delivery vehicle,
- Uses an electronic sensor to track how quickly employees scan items at a grocery store check-out, and
- Tracks the websites that employees visit during working hours.
Content of an Electronic Monitoring Policy
An employer's policy must contain a statement as to whether the employer engages in electronic monitoring of employees. It must also state the date the policy was prepared and the date any changes were made to the policy. If 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 Ministry's new guidance provides examples of what a policy would include where (1) an employer tracks an employee's delivery vehicle using GPS, and (2) an employer monitors its employee's emails and online chats.
Key Take-Aways from the Ministry's New Guidance
The new guidance clarifies the following:
- The policy should capture:
- Electronic monitoring that is done on devices and electronic equipment issued by the employer,
- Electronic monitoring that happens while employees are at the workplace, and
- Any other electronic monitoring the employer is engaging in, such as monitoring the employee through the employee's own personal computer that is used for work purposes.
- The policy must apply to all of the employer's employees in Ontario, including assignment employees, management, executives, and shareholders if they are employees under the ESA. However, an employer is not required to have the same policy for all of its employees. The employer can have a single policy that applies to all employees, or its policy can contain different policies for different groups of employees.
- The policy may be a standalone document or part of another document.
- The new requirement to have a written policy on electronic monitoring does not establish any new privacy rights for employees or any new right for employees not to be electronically monitored by their employer.
- The new requirement to have a written policy does not impact an employer's ability to use information obtained through electronic monitoring, including for purposes other than those stated in the policy.
A link to the Ontario Ministry of Labour's guidance on Electronic Monitoring Policies can be found here.
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.