Employee Monitoring in Ontario

During the previous years, employers have demonstrated an increased interest in electronic monitoring of their employees. Businesses across Canada actively use applications such as ActivTrack, Hubstaff, Hivedesk, Teramind or Work Examiner, just to name a few, to track their employees' activities.

Businesses list a variety of reasons as to why they use workforce surveillance, for example, because they need to ensure correct billing of their clients or to control work fulfillment in a remote or hybrid setting. Meanwhile, the lack of legislative guidance allowed virtually unrestricted application of surveillance without notice, including recording employees when they were taking Zoom calls from homes or tracking workers during their lunchtime.

This issue is now being addressed in the amendments to the Employment Standards Act 2020, introducing a formal framework for Ontario employers who use electronic monitoring of staff as a part of their process. Keep reading to find more about employee privacy in Ontario, the requirement for employee monitoring and other implications for electronic surveillance.

How Was Employee Privacy Regulated in Ontario Before the New Employee Monitoring Legislation?

Before the new legislation, there was no other law protecting employee privacy in Ontario except for federal regulations. Employees seeking protection of their right to privacy had to rely on the common law and court practice.

Meanwhile, in an interview, the Ontario's Minister of Labour, Training and Skills Development, Monte McNaughton, has raised concerns over the stories of workers who had been tracked through electronics without their knowledge. The Minister highlighted that personal privacy should be paramount to all people in Ontario, so the new law was promptly endorsed.

What Is the New Law on Employee Electronic Monitoring And When Did It Come into Force?

The new rules for employee electronic monitoring are reflected in Bill 88: Working for Workers Act, 2022. The Act includes amendments to the Employment Standards Act, 2000 (ESA) and Occupational Health and Safety Act. Bill 88 also introduces an entirely new set of rules in the form of the Digital Platform Workers' Rights Act, 2022.

Bill 88 has already received Royal Assent on April 11th, 2022. For now, employers have time until October 11th, 2022, to comply with the new regulation.

What Does the New Law Change for Employers?

The new law on electronic monitoring in Ontario applies to businesses having 25 or more employees as of January 1st each year. Such companies will be required to develop and introduce a written electronic policy by March 1st of the same year.

The goal of the electronic monitoring policy should be to bring transparency into how companies track their employees in Ontario using electronic devices, such as laptops, cell phones and GPS systems.

According to the new law, such electronic monitoring policies should include:

• a notion whether employees are electronically monitored,
• a description of how the surveillance is done,
• explanation of the purposes why employers electronically monitor their employees and collect their information.

Employers' Obligations Related to Electronic Monitoring of Workers

For now, the new regulation does not restrict the ability of employers to use the information they obtain through electronic monitoring. The existing text of the law only requires businesses to notify the employees of the fact of electronic surveillance per se and explain the means used for surveillance and its purposes.

Thus, companies have to provide a copy of the policy to each employee within 30 days from the date when the policy should be in place or 30 days after making any changes to such documentation.

Any new employee should receive a copy of the policy within 30 days after being employed or 30 days after the policy is put in place, depending on what date occurs later.

Other Questions on the Ontario Electronic Monitoring Law

According to the Minister of Labour, Ontario is the first province in Canada to come up with such a law. The Minister has further noted that the government understands that the law is going to be new for businesses across the province.

So it is natural that at the stage when the new law was just introduced, there would be many questions both from businesses and employees. Here is a short list of those questions, some of which remain open and await additional guidance while others are already explained in the regulation.

Does the Law Protect Employees From Employer Surveillance?

The Working for Workers Act, 2022 does not restrict businesses from electronic monitoring of employees. Employers are free to use information obtained from their monitoring activities according to the rules outlined in the written policy.

Thus, you cannot raise a complaint about being electronically monitored by your employer if the employer has a policy for that in place. The only instance when an employee can complain is when such policy is non-existent, or if the electronic monitoring was not following the policy, or when an employee has not received a written copy of the policy in due time.

Does the Law Include any Specific Requirements for the "Electronic Monitoring" Policy?

As of the date of this article, the new law requires employers to describe their process for electronic monitoring, explain why they do it and what they do with the collected information.

There are no other additional requirements for the content of the policy or limitations for the employers. It can be expected that the Ministry of Labour in Ontario will issue further guidance similar to the guidance on disconnecting from work.

What Do You Do if You Do Not Agree To Be Electronically Monitored?

For now, the new law does not provide a clear answer to that question. There is nothing in the law saying if a person can be dismissed for not agreeing to be monitored or if they will be compensated for such dismissal. Meanwhile, the common law in Canada requires employers to use electronic monitoring of employees exceptionally for legitimate purposes and only when necessary.

The Working for Workers Act, 2022 provides a formal framework for electronic monitoring of employees by their employers. As businesses expand their use of technology for electronic surveillance to improve security, bill their clients and control their staff during remote or hybrid work, the new law fills a critical gap in regulating this new aspect of employer-employee relations.

It is expected that the Ministry of Labour in Ontario will come up with additional guidance on the electronic monitoring of employees to clarify the remaining gray areas.

If you think your employer is not following the outlined employee monitoring regulations in Ontario, get in touch with an employment lawyer for a free consultation.