Electronic Monitoring – What You Should Know

In April of 2022, the Government of Ontario made amendments to the Ontario Employment Standards Act, 2000 which included the inclusion of a requirement which states that employers must have a written policy in place regarding the electronic monitoring of employees.

Employers who have 25 or more workers under their employ on January 1, 2022, must have a written policy on electronic monitoring of employees prepared and implemented no later than October 11, 2022. In future years, employers with 25 or more employees on January 1 of that year must have a written policy in place before March 1 of that year.

Employers must count all employees across all locations of a business to establish the 25-employee threshold, including all full-time, part-time, and fixed term employees, as well as those employees on leave or temporary lay-off. Only workers assigned by temporary help agencies need not be included in the employee count.

The Government of Ontario has provided detailed guidance on the scope of the new policy requirements.

It is important to note that these new requirements do not establish any right for employees to be electronically monitored by their employer, nor do they create any new privacy rights for employees. The electronic monitoring policy aims to provide transparency so that employees know exactly how, in what circumstances, and for what purposes they are being monitored electronically. This policy is meant to inform employees of the electronic monitoring in place, whether it’s new or preexisting.

The ESA was amended not to apply to certain business and information technology consultants, only if specific requirements are met.  The ESA defines “business consultant” as an individual who provides advice or services to a business or organization in respect of its performance.  An “Information technology consultant” means an individual who provides advice or services to a business or organization in respect of its information technology systems.

The ESA does not affect or limit the employer’s ability to use any information obtained through the electronic monitoring of its employees in any way they see fit. For example, an employer may electronically monitor their employees for the purpose of assessing overall employee productivity and outline that purpose in their written policy. However, if that employer happens to discover inappropriate employee conduct through that electronic monitoring, they are fully in their right to rely on that information to investigate or even terminate or discipline the employee if they choose.

Electronic monitoring is considered to be any and all forms of employee and assignment employee monitoring that is done electronically. This can take many forms, including:

• Using GPS systems to track the movement of an employee’s delivery vehicle
• Using electronic sensors to track how quickly employees scan items at a check-out
• Tracking the websites that employees visit during work hours
• Reviewing video or audio recordings
• Monitoring key fobs and timecards

The electronic monitoring policy is introduced to simply provide transparency and keep all parties informed and accountable, and it should in no way affect the day-to-day operations of a business.

Employers should go through the following steps to ensure that they meet all policy requirements by October 11, 2022:

• Determine whether you are required to have a written policy in place
• If yes, develop a written policy which:
  • Contains all required information
  • Applies to all employees that work for you. The content of the policy does not need to be the same for each employee, though all employees must be covered in the policy.
• Provide a copy of the written policy to all employees in one of the following formats:
  • A printed copy
  • An email attachment that the employee can print
  • A link to an online document, if the employee can reasonably access the document and a printer
• Retain a copy of every written policy required by the ESA for three years after the policy is no longer in effect

It is advisable to seek professional legal review when implementing any new policy. If you need assistance developing an Electronic Monitoring policy or understanding the requirements, please contact HR Enable. We provide legal and HR consulting services, and we can help you develop a policy that matches your organization and complies with all Employment Standards Act requirements.