Under the Labor law for workersEvery covered Ontario employer with twenty-five or more employees is now required to have a written electronic monitoring policy that complies with Part XI.1 of the Employment Standards Act 2000.
The electronic monitoring rules do not limit how an employer can engage in electronic monitoring of Ontario-based employees; however, they require an employer to state the following in their written policy:
- whether the employer engages in electronic monitoring;
- if so, what form(s) of electronic monitoring does the employer engage in and under what circumstances does it monitor employees; and
- what potential use(s) will the employer make of the information collected through electronic monitoring.
Part XI.1 of the Employment Standards Act 2000 does not define what “electronic surveillance” means. However, guidance from the Ontario Ministry of Labour, Immigration, Training and Skills Development states that the policy should list “all forms of monitoring of employees and assigned employees that is done electronically and gives examples of GPS tracking, electronic sensors, and website tracking. /network traffic. The policy should cover surveillance conducted through electronic devices or equipment provided to employees as well as surveillance that occurs in the workplace (which may include home workspaces, for example, surveillance of employees who access corporate networks from personal computers or devices). Employers who do not engage in electronic monitoring must still have policies that expressly state that they do not engage in such activities.
Although an employer’s policy must state the purposes for which an employer may use information collected through electronic monitoring, the employer is not limited to the uses of information listed in its policy. The Department of Labour, Immigration, Training and Skills Development also lacks the ability to investigate complaints about employer compliance with its policy on electronic monitoring. Employees cannot file complaints with the ministry about their employers’ actual monitoring practices; complaints are limited to determining whether a policy has been provided pursuant to Part XI.1.
An employer must provide employees with a copy of the policy beginning October 11, 2022. In subsequent years, employees must receive a copy of the policy no later than March 1 of that year. The policy must indicate the effective date and the date of any updates. The law also requires an employer to keep a copy of the policy for three years from the date it ceases to be in effect.
As this is the first year that electronic monitoring policies have been required by Ontario law, employers may want to be vigilant about how employees react to the policy, as well as any guidance issued. day that can be provided by the Department of Labour, Immigration, Training and Skills Development.