In response to the increase in the number of employees working remotely since the onset of the pandemic and the ever-increasing prevalence of technology in the workplace, the Ontario government has amended the Employment Standards Act, 2000 (“ESA”), to create new policy obligations for employers.
In the Spring, employers were required to introduce a Disconnecting from Work Policy. Now this fall, the latest requirement, is for employers to enact an Electronic Monitoring Policy.
Electronic Monitoring Policy
The Working for Workers Act, 2022, requires employers to create a new policy on electronic monitoring, the first policy requirement of its kind anywhere in Canada.
In many ways, this new policy obligation mirrors the previous requirements that were imposed on employers related to the Disconnecting from Work Policy. This new policy obligation applies to all Ontario employers who have 25 or more employees as of January 1st in any given year. For 2022, employers were required to have a written policy drafted by October 11th. And for all subsequent years, all qualifying employers are required to have their policy in place by March 1st of that year.
Further, just like the Disconnecting from Work Policy, employers are required to:
- provide a copy of this new policy to all employees within 30 days of it being drafted, with all new employees being provided with the policy within 30 days of hire;
- ensure the policy applies to all employees; and
- include the date the policy was prepared and the date of any amendments.
However, unlike the Disconnecting from Work Policy, the ESA contains a more direction concerning what must be included in an Electronic Monitoring Policy. The Electronic Monitoring Policy must meet the following substantive criteria:
- It must identify whether the employer electronically monitors its employees;
- If an employer does monitor its employees, it must:
- describe how and in what circumstances the employer may do so; and
- identify the purposes for which information obtained through electronic monitoring may be used by the employer.
In no way does the ESA prohibit employers from monitoring their employees, nor does it give employees any privacy rights. In fact, the Ministry of Labour has specifically stated that this new policy obligation “does not establish a right for employees not to be electronically monitored by their employer or create any new privacy rights for employees”.
Nonetheless, employers should still be mindful of their electronic monitoring of employees, as unreasonable and overly intrusive monitoring could still give rise to civil claims by employees for damages.
Penalties for non-compliance
If an employer fails to abide by these new policy obligations, it may potentially face significant penalties.
An Employment Standards Officer could audit or investigate an employer to determine if it is in compliance with the ESA. If an employer has not satisfied its new policy obligations, then the Officer can issue a Notice of Contravention, which can include a fine of $250 per affected employee for a first offence, $500 per employee for a second offence, and $1,000 per employee for any subsequent offence.
Takeaways for employers
Employers need to ensure that they have complied with their new policy obligations. However, in preparing these policies employers need to be careful that they do not unintentionally give their employees more rights than are necessary and that they not bind themselves into any unwanted practices. Once enacted into a policy, employers are required to follow through with the provisions of their policies and any rights granted to employees can be enforced.
To ensure that your policies are properly drafted to reflect your organization’s intentions, contact an employment lawyer at Soloway Wright LLP.
About Kyle Van Schie
Kyle Van Schie is an Associate Lawyer who practices in Soloway Wright LLP’s Employment, Labour & Public Law group. Kyle’s practice consists of advising both employers and employees on all aspects of employment law matters. He regularly represents clients on employment, labour and human rights matters before all levels of court in Ontario as well as before various administrative tribunals.
