Employers Take Note: Employees must be Informed of Electronic Monitoring Practices

By: Elliot Saccucci, Tahir Khorasanee, and Isabelle Nazarian (Student)

Electronic Monitoring: The Right to Be Informed

A recent amendment to the Employment Standards Act, coming into effect on October 11, 2022, as part of Bill 88, requires employers with 25 or more employees to adopt a written policy on electronic monitoring.

For transition and initial compliance, employers with a count of 25 employees or more as of January 1, 2023, must have a written policy addressing electronic monitoring by March 1 of the respective calendar year. This requirement will continue into subsequent years, where employers will once again have until March 1 of each year to implement a policy if they have 25 or more employees as of January 1 of that respective calendar year.

It is conceivable for an employer to no longer require the policy; however, the employer must keep a copy of this written policy for three years after the electronic monitoring policy is no longer in effect.

Background

According to statements made by the Minister of Labour, the legislation’s purpose is to protect employees’ privacy by providing information on how and why their employer is tracking their computers, cell phones, GPS tracking systems, and other electronic devices. There appear to be no obvious exceptions in the legislation for any technology or information. The rights apply whether employees work in the field, in the office, or remotely.

The legislation comes at a time when an unprecedented number of Canadians are working from home and traditional methods of assessing employee productivity are no longer viable.

Required Written Policy Information

According to the amendment, the written policy requires the following information:

1. Whether or not the employer monitors employees electronically, and if so,
   1. An explanation of how and when an employer may electronically monitor employees, and
   2. The purposes for which the employer may utilise information collected through electronic monitoring.
2. The date the policy was created and the date any changes to the policy were made.
3. Any additional information that may be prescribed.

While the information on the required content is currently limited, we expect the Ministry of Labour to disclose further guidelines, as was done for the previous ‘disconnect from work policy’.

Implementation of the Written Policy

Now, shifting to implementing the policy, the legislation outlines how copies of the policy should be disseminated to its employees. The legislation does so by separating out the following categories of employees:

Current Employees: An employer must provide a copy of the policy within 30 days from the day the employer is required to have the policy in place or 30 days after any changes.

New Employees: An employer must provide a copy of the policy within 30 days of the new employee starting employment, or within 30 days from when the employer is required to have the policy in place, whichever is later.

Temporary Agency Employee: An employee that is a client of a temporary help agency must have the policy provided to them within 24 hours of starting employment or 30 days from the day the employer is required to have the policy in place, whichever is later.

Implications for the Employer

Businesses should begin preparing for Bill 88’s implementation now given the significant number of new obligations. The following are some key insights to keep in mind as you prepare:

1. Employers should compile a list of the ways they monitor their employees and the reasons for doing so in order to be compliant with the disclosure requirements of the legislation.
2. Employers should be aware of the extent of disclosure necessary under Bill 88 to avoid over disclosing and compromising their business interests. Although the current legislation does not define “electronic monitoring,” and we anticipate more guidelines to come, we advise employers to include:
   1. whether they monitor;
   2. how they monitor (ex. recording video or audio, comparing programs run by employee to a baseline to discern abnormal uses, keystrokes etc.);
   3. under what circumstances they monitor (ex. while working remotely, continuously during shifts etc.);
   4. for what purposes they may monitor (ex. security, driver safety, productivity etc.); and
   5. the date the policy was created and the date any changes were made.

      According to the information now available, it does not seem that an employee is required to declare the software or make of the monitoring system they are using.

3. The legislation does not set restrictions on the monitoring carried out by the employer as long as these disclosure obligations are met. Furthermore, the requirement does not affect or limit an employer’s ability to use information obtained through the electronic monitoring of its employees.
4. Though Bill 88 does not place any restrictions on how employers may use the data, employers should use caution to ensure their policies do not infringe on an employee’s reasonable expectation of privacy. To prevent claims in the form of tort privacy claims or constructive dismissal, an employer should generally limit the use of electronic monitoring to situations that are reasonable and necessary in the context of the particular workplace. Constructive dismissal claims may arise with significant and intrusive changes to the previous monitoring systems.
5. Since employees will be able to make procedural complaints connected to the distribution of these electronic monitoring policies, employers should strictly adhere to the rules of dissemination. Employers should be aware that employee complaints appear limited to procedural issues, and no further complaints or investigations will be permitted.

As a result of the legislation, employers are now compelled to report their use of electronic monitoring. Employers should use caution while drafting these policies and avoid jeopardising their commercial interests. In general, if an employer is transparent, electronic monitoring will be permitted. 

If you have any questions about how to create a compliant written policy on electronic monitoring, our Employment and Labour team is here to help.