What Ontario, Canada Workplace Electronic Monitoring Rules Mean

As of October 11, 2022, new legislation requires employers in Ontario with 25 or more employees to disclose electronic monitoring in the workplace. This will keep businesses productive and allow for greater trust. However, it doesn’t give employees a right to privacy.

The Ontario government passed legislation in April that requires employers with 25 or more people to have an electronic monitoring policy. This may include stating whether they are monitoring their employees’ computers, cellphones, or GPS and how closely they are doing so.

With more states, provinces, and countries enforcing electronic monitoring, both employers and employees are taking a closer look at what these rules mean for them.

What Does Bill 88, Working for Workers Act, 2022 Mean?

The passed Bill 88, The Working for Workers Act, 2022, is a recent step in modernizing the workplace and establishing employer requirements to promote employee transparency.

Effective as of October 11, 2022, the bill amended the existing Employment Standards Act of 2000 to include requirements for workplace policies on electronic monitoring. The Working for Workers Act now requires a written policy that states how managers are monitoring the behavior of employees. This is meant to help clarify what is being monitored and make expectations more clear.

Ontario’s Bill 88 is meant to protect employees by requiring employers to be upfront about how they track and monitor employees. There is no negative impact on employees; instead, the new Bill forces transparency between employers and employees.

Who Is Required to Have a Policy in Place?

It is now a requirement for all Ontario employers with 25 or more employees to create an electronic monitoring policy in accordance with Part XI.1 of the Employment Standards Act under the Working for Workers Act.

There are some stipulations to the policies, however, as follows:

How Should “Employee” be Defined?

It is the Ontario employers’ responsibility to determine if they are employing at least 25 employees. It is their responsibility to include each employee in their count, not just those that work regular hours. Employers must also include part-time employees and employees on leave in the employee count. 

When determining a company’s headcount in Ontario, all locations must be considered. If a company has more than one location in Ontario, all employees in those locations are included in the count. Remote employees are counted as long as they work for an Ontario-based employer, which means that the company headcount is increased; however, if the employees work out of province for an Ontario-based company, they are not included in the total number.

What Should Be Included in the Written Policy?

When developing a policy, employers must, at minimum, fulfill the following criteria:

State Whether or Not Employees are Being Electronically Monitored

When an employer plans to monitor employees electronically, the policy should also explicitly state that. In other words, even if monitoring is not happening, the employer requires a policy that states there is no monitoring occurring.

The Methods Used in Monitoring

When businesses are drawing up a policy for electronic monitoring, they need to include the methods used. These could include various techniques, such as tracking emails, phone calls, and text messages. For example, an employer may monitor an employee’s business computer or workstation to ensure that it is only being used for business purposes. 

The Circumstances in Which Employees’ Activities Will Be Monitored

In a precise and comprehensive written Policy, it is essential to include an explanation of the circumstances in which an employer will electronically monitor its employees. For instance, it must state that the company may monitor employee website activities only during work hours.

It must be clear so that employees understand when and how they are monitored. 

How the Information Collected Will Be Used

It must be explained in the Policy how the employer plans to use the collected information. 

For example, the employer may monitor employee internet usage to ensure employee productivity, cybersecurity standards, and that work is being done during work hours. 

According to the Employment Standards Act (ESA), an employer’s ability to use the information collected is not affected or limited by policy requirements, so employers can continue the information as they see fit. 

The Date the Policy was Written and the Date of Any Changes

The employer must state the date the policy was written and implemented and the date of any revisions. 

The written policy must be supplied to all employees within 30 days of the day the policy was required to be in place. For businesses in operation on October 11, 2022, with more than 25 employees, that date was November 10, 2022.

If the policy is updated, a new copy must be supplied to employees within 30 days of the update. 

New hires must receive a copy of the monitoring policy within 30 days of being hired.

Do Other Provinces Use Employee Monitoring?

Ontario is the first province to introduce electronic monitoring legislation. Alberta, British Columbia, and Quebec have individual privacy legislation that sets some restrictions on collecting employee data by private businesses. 

The federal privacy framework covers some private-sector employees in Ontario, but it has been criticized. Ontario’s Information and Privacy Commissioner has called for a separate provincial framework to handle local concerns about the law. 

The feeling among some experts is that while this legislation is a good first step toward transparency and protecting employee privacy, it does not go far enough. 

Summary

While this legislation may trigger some valid concerns about privacy protections, it also has the potential to improve working relationships, improve productivity, and increase profits. 

With in-person, remote, and even hybrid work environments, employers, now more than ever, need to keep track of the work being done. However, employee monitoring is not new, it has been used for years across all types of industries. 

What is new with this legislation is that employers in Ontario with 25 or more employees are required to inform those employees that they are being monitored, how they are being monitored, and how that information is being used. 

Good employee monitoring software is not exploitative and benefits both employer and employee. The SoftActivity Monitor for Workstations, for example, allows you to do things like track websites visited, apps used, record keystrokes, generate reports, and more. And the best part, it can all be done remotely. 

If you are an employer wanting or needing to implement electronic monitoring, try SoftActivity’s free seven-day trial, or contact us for more information.

By SoftActivity Team.