In April 2022, an amendment was put in place in the Employment Standards Act, 2000 (the ESA) that railroaded the requirement of electronic monitoring policy in workplaces with 25 or more employees. It was made clear that employers who have 25 or more employees must have a written policy on how they electronically monitor their employees by October 11, 2022.
Ontario’s Ministry of Labour, Training and Skills Development (the “Ministry”) has specifically highlighted ways employers can better understand the new Electronic Monitoring Policy mandate. Below are a few primary facets of the Ministry’s guidance:
What Is Electronic Monitoring?
Electronic Monitoring means all sorts of employee monitoring that is done electronically. It is pertinent to note that this definition covers the monitoring of all employees i.e. permanent employees, probationary employees, assignment employees of temporary agencies, employees on sick or medical leave, etc. It is not restricted to the monitoring of physical or on-site workplaces. Electronic Monitoring is equally applicable to remote as well as hybrid workplace models.
The definition gives a fair amplitude of discretion to the employers since there aren’t many limitations so employers are at liberty to contemplate techniques through which they can keep a check on their employees. This does not imply that employers will get off scot-free.
Some common examples of electronic monitoring during working hours include GPS tracking, browsing tracking software, audio, textual, and video surveillance, and other electronic tracking sensors for tracing employee movements.
What Are The Electronic Monitoring Policy Content Requirements?
The Electronic Monitoring Policy can either be a stand-alone or discrete document or it could be a part of an exhaustive employee rules and regulations policy. Also, the employer can make a single policy that applies to all employees or can make different policies for different groups of employees. Notwithstanding the employer’s choice of policy, the policy must contain:
- A clear and express statement of whether the employer is electronically monitoring their employees.
- A description of how the employees will be monitored.
- The policy must contain an explanation under what circumstances the employees may be monitored.
- The description must also elucidate the purposes for the information acquired via electronic monitoring.
- The date and time on which the monitoring policy was formulated. If any changes were made to the policy and the date of the changes made must also be mentioned.
Are Employers Responsible For Disclosing The Policy’s Contents To The Employees?
Yes. In this case, the employees are entitled to receive a copy of the Policy within 30 days after the policy is drafted, or amended, and to newly-hired workers within a time frame of 30 days of recruitment. The employers can provide a copy of the Policy in printed hard copies or digital copies or a link to access the policy document online. The employers are also required to keep a copy of their every enforced policy for three years after the Policy expires.
Who Will Look After The Complaints Regarding Electronic Monitoring Policy?
The employees have a right to launch a complaint with Ontario’s Ministry of Labour, Training and Skills Development against their employer for not providing a copy of the Policy. The employment standards officer may initiate an investigation as a result of the launched complaint. Any complaint asserting any kind of violation of the Electronic Monitoring Policy cannot be entertained by the officer.
Non-compliance with the adoption of the Policy before October 11, 2022 in a workplace with 25 employees or more can result in significant fines and consequences for the employers. The employees should be cautious in regard to the information used for Electronic monitoring purposes as the changes to the ESA do not grant any new privacy rights to the employees. Similarly, employers are also bound to adopt impartial electronic monitoring practices so that employees’ privacy rights are not infringed.
Our Lawyers Can Guide You!
If you require any assistance or guidance regarding the creation of an Electronic Monitoring Policy, please get in touch with the litigators and counselors at Ayaz Mehdi Professional Corporation.
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