Ontario releases new guidance on electronic monitoring of employees

Ontario’s Ministry of Labour, Training and Skills Development has recently released new guidance that will aid employers in creating a written policy on electronic monitoring of their employees.

On February 28, the Ontario government introduced the Working for Workers Act, 2022 (Bill 88), which includes changes to the Employment Standards Act, 2000 (ESA). One of the changes includes requiring employers to inform their employees if and how the employer is monitoring employees. The bill took effect on April 11.

Employers with 25 or more employees required to have written policy

Under the new guidance, employers with 25 or more employees as of January 1 must have a written policy on electronic monitoring of employees by October 11. Beginning in 2023 and each year after, employers with 25 or more employees on January 1 of any year must have a written policy before March 1 of that year.

Where an employer has multiple locations, they must include all employees assigned at each location in Ontario in determining whether the employer meets the 25-employee threshold.

“For example, an employer owns three wine shops with 12 employees employed in each shop on January 1. Thus, this employer employs 36 employees,” the ministry wrote. “The employer must have a written policy in place for all employees on the electronic monitoring of employees, even though there are fewer than 25 employees employed at each individual shop.”

Employees covered by the policy

The new guidance provides that a written policy applies to all the employer’s employees in Ontario. This requirement includes managers, executives, and shareholders if they are deemed employees under the ESA. However, this does not mean an employer must have the same policy for all their employees.

“An employer can have a single policy that applies to all employees, or their policy can contain different policies, either in a single document or in multiple documents, for different groups of employees,” the ministry wrote.

For instance, a retail employer may decide to have one policy that applies to their office staff and a different policy that applies to their in-store sales staff.

Written policy requirements

Under the new guidance, a written policy may be a stand-alone document or a part of another document. Moreover, it should include the following information:

• A statement whether the employer engages in electronic monitoring of employees;
• A description of how the employer may electronically monitor employees. For instance, the employer monitors employees’ emails and online chats through a software program created specifically for that purpose;
• A description of the circumstances in which the employer may electronically monitor employees;
• The purposes for which the employer may use the information obtained through electronic monitoring;
• The date the employer prepared and revised the written policy.

Employers may disseminate a written policy through a printed copy, an attachment to an email, or a link to the document online. They must retain a copy of every written policy for three years after it is no longer in effect.

Limitations on complaints and claim investigations

The new guidance allows employees to file a complaint arising from a written policy. A complaint can be made to the ministry or investigated by an employment standards officer only if the employer failed to provide a copy of the written policy within the required timeframe.

However, any complaint alleging other contraventions of the written policy cannot be made or investigated by an employment standards officer.

Using information collected through electronic monitoring

The guidance clarifies that the electronic monitoring requirements do not affect or limit employers’ ability to use information obtained through the electronic monitoring of their employees in any way they see fit. For instance, employers can rely on the information obtained to discipline or terminate an employee or support their position that an employee was guilty of wilful misconduct, disobedience, or wilful neglect of duty.