Electronic Monitoring and the Performance of Remote Workers
Introduction
As the digitization of work continues to grow, hybrid and remote work arrangements are becoming increasingly commonplace. In this digital world where employers may no longer have eyes on their employees, employers are faced with new challenges in monitoring employee productivity. As it currently stands, employers have quite a bit of flexibility and leeway when it comes to monitoring their employees. However, there is room for the law to grow and develop in this realm, attempting to balance the competing interests of protecting the privacy of employees and simultaneously addressing the need for employers to monitor their employees’ work performance.
What is “electronic monitoring”?
Electronic monitoring includes all forms of employee monitoring that is done electronically at the workplace, including remote work environments. Examples include:
- Tracking employee access and attendance (e.g., access cards, electronic timecard systems);
- Tracking employee location (e.g., GPS devices on company vehicles and/or devices);
- Tracking employee on workplace networks and systems (e.g., email, website visits, application usage, online chats); and
- Surveillance of employees (e.g., video or audio recordings).
What does Ontario legislation say about electronic monitoring of employees?
The Working for Workers Act, 2022 (Bill 88) took effect in April 2022 and introduced changes to the Employment Standards Act, 2000 (ESA), whereby employers are now required to inform their employees if and how they are being monitored by their employer. More specifically, employers must have a written policy in place on the electronic monitoring of employees and provide a copy of the policy to all employees.
This requirement, however, only applies to employers in Ontario with 25 or more employees that are covered by the ESA. The Crown and Crown agencies are excluded from this requirement. Notably, employers are required to prepare a written policy regardless of whether employees are working in the workplace, in the field, or at home.
According to the Government of Ontario’s Guide to the Employment Standards Act, the policy must outline:
- A statement on whether or not an employer engages in electronically monitoring its employees;
- A description of how and in what circumstances the employer may electronically monitor employees;
- The purposes for which the 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.
This year, employers that employ 25 or more employees as of January 1, 2022, have until October 11, 2022, to have a written policy on the electronic monitoring of employees in place. Employers must look at the total number of employees they have in Ontario, not per location, to determine if the 25-employee threshold has been met. There are certain circumstances where two or more employers are treated as one employer. More information is available on the Ontario government website. In subsequent years, employers will have until March 1 of the particular year to have the written policy in place.
The purpose of Bill 88 is to ensure that employees are provided with notice of any electronic monitoring. The policy does not affect or limit an employer’s ability to use the information obtained through the electronic monitoring of its employees. The employer must disclose in the written policy, however, the purposes for which the information obtained through electronic monitoring may be used.
Penalties for Violating the ESA
A complaint may be made to the ministry, or be investigated by an employment standards officer, where there is an alleged contravention of the employer’s obligation to provide a copy of the written policy within the required timeframe to its employees. A complaint alleging any other contravention of the policy on electronic monitoring of employee provisions cannot be made, or be investigated by, an employment standards officer.
An ESA officer can impose one or more of the following penalties:
- Compliance Order: Ordering an employer to stop contravening a provision and to take certain steps to comply with a provision.
- Order to Pay: Ordering an employer to pay an employee up to $10,000 for a violation of the ESA.
- Ticket, Notice of Contravention, or Prosecution: Issuing a ticket for a less serious ESA violation with a set fine of $295, with a victim surcharge added to each set fine, plus court costs. Alternatively, the fine for a notice of contravention is up to $1,000. For some violations, the fine is $250, $500, and $1,000 for the first, second, and third violation, respectively, in a three-year period for each employee. Finally, an employer can be prosecuted and ordered to pay a fine, and/or imprisoned for contravening the ESA. An employer can be fined up to $100,000 for a first conviction, up to $250,000 for a second conviction, and up to $500,000 for a third conviction.
Takeaways for Employers
For employers, it will be easier to have a monitoring policy in place at the outset of an employment relationship and inform the employee of the policy at that time, rather than trying to implement it later on.
With Bill 88 in place, employers should take the appropriate steps in creating and distributing a written policy on the electronic monitoring of employees, according to the applicable statutory timelines. Employers do not need to have one blanket policy that applies to all its employees. It is possible for one employer to have multiple policies on electronic monitoring, each applicable to a different set of employees. Employers must keep a copy of all electronic monitoring policies put in place for a period of three years after the policy is no longer in effect.
While Bill 88 does not place a limit an employer’s ability to monitor its employees electronically, employers should nevertheless remain cautious of overly intrusive electronic monitoring of employees. Such intrusions may give rise to claims of constructive dismissal or invasion of privacy.