Employers Now Obligated to Disclose Electronic Surveillance in the Workplace

Bill 88, the Working for Workers Act, 2022, received royal assent on April 11, 2022.

One of the most interesting changes to the law is the creation of a new employment standard aimed at ensuring employees are informed of electronic surveillance in the workplace. Bill 88 creates a new Part XI.1 of the Employment Standards Act, 2000 with provisions dedicated to this issue.

It is important to understand that Bill 88 does not prevent employers from electronically surveilling their employees’ activities; however, employees must be notified if the employer conducts surveillance. In addition, employers must provide employees with details on “how and in what circumstances the employer may electronically monitor employees” and advise them on the “purposes for which the information obtained […] may be used […]”.

Thus, Bill 88 does not prevent an employer from reviewing employees’ web browser history or text messages on company devices. However, employers must explicitly advise employees that they are carrying out such surveillance. In addition, employers must advise employees how the information gathered will be used. For example, if an employer wants to discipline an employee after discovering the employee has spent many working hours checking out online recipes, the employer’s policy must explicitly state that the information learned from the surveillance may be used to discipline employees.

The new employment standard imposes the following other specific obligations on employers:

1. Only those employers with 25 or more employees must have a policy with respect to electronic surveillance. Note that the new provisions do not specify that the employer must have 25 employees in Ontario. However, the Ministry of Labour has read that requirement into other provisions in their interpretations (including the new employment standard on the right-to-disconnect).
2. The number of employees employed on January 1st of a given year determines if the obligation is triggered.
3. If the obligation to have a policy is triggered (on January 1st), the policy must be in place by March 1st of the same year. However, a transition provision provides that employers have at least 6 months from the date Bill 88 received royal assent to put a policy in place. Thus, workplace electronic surveillance policies must be in place by October 11, 2022.
4. Employees must be provided with a copy of the policy within 30 days of the policy’s preparation. New employees must also be provided with a copy of the policy within 30 days of joining the employer.
5. Other than disclosing whether there is surveillance, the type of surveillance and how information will be used, there are no other specific requirements about the content of the policy; however, the new provisions indicate that other content may be prescribed in regulations.

It would be prudent for employers to review their policies on the acceptable use of company devices and networks to ensure they are compliant with this new employment standard. In particular, employers will likely want to ensure they can respond appropriately if concerning information about an employee’s use of the employer’s networks and devices is the subject of a complaint or is discovered by chance during routine IT maintenance services, for example. Many employers will want more robust policies. Note that there is no obligation to confer with employees on the development of the policy.

Bill 88 comes close on the heels of Bill 27, the Working for Workers Act, 2021, which nullified non-competition agreements in most employment agreements and imposed an obligation on employers to develop policies on the right to disconnect. For more information on the right to disconnect, which requires that most employers have policies in place by June 2, 2022, see my recent blog on that subject.