Employers’ New Obligation to Disclose Their Employee Monitoring Policy

What are the New Requirements?

The Ontario government has introduced the Working for Workers Act, 2022, which included changes requiring employers with 25 or more employees to have an explicit written policy on the electronic monitoring of employees in place.

Nelligan Law is grateful for the contribution of Alain Azar in writing this blog post.

Employers’ Compliance with the New Requirements

1. You determine whether you have “25” employees by following these principles:

• Employees are counted on an individual number basis, meaning that regardless of the number of hours an employee works they will be counted as an employee.
• If you have multiple locations, you must include all employees assigned to locations in Ontario. Thus, if you have two locations for your business with 15 employees each, that will mean you have a total of 30 employees.
• If, on January 1, 2023 you have fewer than 25 employees, regardless of the number of employees you gain throughout the year, the written policy requirement will not apply to you for that calendar year. If on January 1, 2023, you have more than 25 employees, regardless of the number of employees you lose throughout the year, the written policy requirement will apply to you for that calendar year.

2. Timeline to Meet the Requirements

These requirements were added to the Employment Standards Act, 2000 on April 11, 2022. The following deadlines are now the state of the law:

• For the first year, employers that employ 25 or more employees on January 1, 2022, have until October 11, 2022, to have a written policy on the electronic monitoring of employees in place.
• By November 10, 2022, employers must provide copies of the policy to employees.
• For subsequent years, employers with 25 or more employees on January 1 will have until March 1 of that calendar year to have a written policy on the electronic monitoring of employees in place.
• If an employer has an existing policy and wishes to change it, they have 30 days from the date of the change to provide their employees with a copy of the updated policy.

3. What Must be Included in the Written Policy

The following items must be included in employers’ written employee-monitoring policy:

• A statement regarding whether the employer is electronically monitoring their employees.
• A description of how and in which circumstance the employer may electronically monitor their employees.
• The purposes for which the information obtained through electronic monitoring may be used.
• The date the policy was prepared and the date any changes were made to the policy.

Key Takeaways for Employees

The new requirements will force employers to put in writing the methods and purposes for which they are electronically monitoring their emloyees. If they do not provide you with a written copy of the policy within the required timeframe, you may file a grievance to the Ministry of Labour, Training and Skills Development.

To clarify, the new requirements:

• Do not establish a right for employees not to be electronically monitored by their employer.
• Do not create any new privacy rights for employees.

Employees and employers alike may want to speak with a lawyer if employee-monitoring concerns arise. If your employer has stated they are not monitoring your electronic devices, and you find out they are monitoring and possibly storing some of your information. There are privacy torts that you may be entitled to claim in such a situation.

If you have questions about the new electronic monitoring requirements or any employment law issue do not hesitate to reach out to one of our experienced lawyers. By the way, this article may be monitored for quality and training purposes.