The deadline by which businesses with 25 or more employees are to have their electronic monitoring policies in place is fast-approaching. Policies are to be drafted and circulated by October 11, 2022. A recent update to the Ontario government's Guide to the Employment Standards Act (ESA) included information specific to the electronic monitoring policy. While some guidance has finally been offered to employers, a glaring hole remains: there is no definition of "electronic monitoring."
HOW TO DETERMINE IF YOUR BUSINESS NEEDS A POLICY?
On January 1 of each year, if a company has 25 or more employees, it needs to have an electronic monitoring of employees policy. The policy must be in place by March 1 of that year. The government offered the following guidance on how to count the number of employees a business has:
- Full-time v Part-time. Count the number of individual employees, not the number of "full-time" employees. The number of hours that an employee works is irrelevant.
- Multiple Locations. All employees at each location in Ontario must be included in the calculation of employees.
- Related Employers. If two or more employers are treated as one employer, then all employees employed in Ontario are to be included in the count.
- Employees to Include in the Count. The guide provides a list of employees that are to be included in the count: homeworkers, probationary employees, some trainees, officers of a corporation who perform work or supply services for wages, employees on definite term or specific task contracts of any length, employees who are on lay-off, so long as the employment relationship has not been terminated and/or severed, employees who are on a leave of absence, employees who are on strike or who are locked-out, and employees who are exempt from the application of all or part(s) of the ESA. (Despite not being covered by the electronic monitoring requirements of the ESA, exempt employees are included in the count to determine whether such a policy is required.)
- Assignment Employees. Assignment employees are included in the count for the temporary help agency and not the business for which they are working for a period of time.
- Number of Employees Changes in the Year. The
date on which an employer has to count employees for the purpose of
having an electronic monitoring policy is January 1. If the number
of employees fluctuates throughout the year, it has no impact on
the requirement to have a policy.
- If a business employs 28 employees on January 1, but the count falls to 22 by June, the policy stays in effect until December 31. The business will not need a policy for the subsequent year if the employee count remains at 22 on the following January 1.
- If a business employs 22 employees on January 1, but the count increases to 28 by June, no policy is required. However, if the employee count remains at 28 on the subsequent January 1, the business will need to implement a policy.
- Employees Covered by the Policy. The electronic monitoring policy applies to all employees (unless they are exempt from the ESA provision). However, an employer can have a different policy for different groups of employees.
The guide indicates that "electronic monitoring" is "all forms of employee and assignment employee monitoring that is done electronically" (helpful!). The electronic monitoring policy must include the following information:
- A statement as to whether the employer engages in electronic monitoring of employees. The monitoring that is required to be captured in the policy is not limited to employer-provided devices or equipment, nor is it limited to monitoring that happens when employees are at the workplace (i.e. monitoring of virtual workers is not exempt).
- Where the employer electronically monitors employees, the policy must contain specific information. This information includes: 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 created and the date any changes were made to the policy.
The guide also provides information on policy record-keeping requirements, deadlines for providing a copy of the policy to employees, and how to provide it to employees.
EMPLOYERS NOT LIMITED ON HOW USE MONITORING INFORMATION
The guide makes it very clear that there is no limitation on a business as to what it can do with the information it collects through electronic monitoring of employees. A business is not even limited to using the information collected for the purposes stated in the policy.
The purpose of the electronic monitoring policy is to provide transparency to employees about their employer's information collection practices through monitoring of workers. The ESA does not create any privacy rights for employees. In fact, employee complaints to the Ministry are limited to contraventions of an employer's obligation to have a policy and to provide it to employees. Complaints about contravention of the policy itself will not be investigated.
While the ESA is not meant to create privacy rights for employees, businesses should consider getting legal advice about whether its electronic monitoring policy will create any obligations outside of the Employment Standards Act.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.