If the employer does electronically monitor employees, what must the policy include?
by Rhonda B. Levy, Barry Kuretzky, George Vassos, and Monty Verlint of Littler
In the spring, Bill 88, Working for Workers Act, 2022, received Royal Assent and became law. Among other things, Bill 88 amended Ontario’s Employment Standards Act, 2000 (ESA) to require certain employers to ensure, within a specific time frame, that they have a written policy in place for all employees with respect to electronic monitoring of employees (Policy).
On July 13, 2022, in its Your guide to the Employment Standards Act, the Government of Ontario published employer guidance for complying with the Policy. In this Insight, we provide a summary of that guidance in Q & A format.
Q 1. Who is required to have a Policy in place?
A 1. Employers that employ 25 or more employees on January 1 of any year.
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Q 2. What must the Policy state?
A 2. Whether or not the employer electronically monitors employees.
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Q 3. If the employer does electronically monitor employees, what must the Policy include?
A 3. A description of how and in what circumstances the employer may electronically monitor employees; the purposes for which the information obtained through electronic monitoring may be used by the employer; the date the Policy was prepared; and the date any changes were made to the Policy.
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Q 4. To whom must the employer provide a copy of the written Policy, and when?
A 4. To all of its employees and to all assignment employees who are assigned to perform work for that employer, within the specified timeframes.
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Q 5. What is the special rule that applies in the first year of the requirement, i.e., in 2022?
A 5. Employers that employed 25 or more employees on January 1, 2022 have until October 11, 2022 to have a written Policy in place.
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Q 6. What is the rule beginning in 2023, and in the years that follow?
A 6. Employers that employ 25 or more employees on January 1 of any year must have a written Policy in place before March 1 of that year.
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Q 7. What do the ESA requirements with respect to the Policy not do?
A 7. They neither establish a right for employees not to be electronically monitored by their employer nor create any new privacy rights for employees.
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Q 8. What are the ESA requirements limited to?
A 8. Requiring that certain employers be transparent about whether they electronically monitor employees.
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Q 9. If an employer does electronically monitor its employees, how must they be transparent?
A 9. By describing how and in what circumstances electronic monitoring occurs and setting out the purposes for which the information obtained through the monitoring may be used.
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Q 10. To whom do the requirements relating to written Policies apply?
A 10. To all employees and employers covered by the ESA except the Crown, a Crown agency or an authority, board, commission or corporation whose members are all appointed by the Crown and their employees.
Q 11. Which employers are required to have a written Policy?
A 11. Employers that employ 25 or more employees in Ontario on January 1 of any year.
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Q 12. How must an employer determine how many employees they have?
A 12. By counting the individual number of employees it employs on January 1, not the number of “full-time equivalents.” Part-time employees and casual employees each count as one employee, regardless of the number of hours they work.
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Q 13. When the employer has multiple locations, how are employees counted to determine whether the 25-employee threshold has been met?
A 13. All employees employed at each location in Ontario must be included in the count, i.e., if there are fewer than 25 employees at each of the employer’s individual locations but the employer employs more than 25 employees in all of its Ontario locations combined on January 1, the employer must have a written Policy in place for all employees.
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Q 14. When two or more employers are treated as one employer under the ESA, which employees are included in the count?
A 14. All employees included in the definition of “employee” employed in Ontario by two or more employers treated as one employer are included in the count to determine whether the employer employs at least 25 employees, including homeworkers; probationary employees; some trainees; officers of a corporation who perform work or supply services for wages; employees on definite-term or specific-task contracts of any length; employees who are on lay-off, as long as the employment relationship has not been terminated and/or severed; employees who are on a leave of absence; employees who are on strike or who are locked out; and employees who are exempt from the application of all or part(s) of the ESA (although these employees might not be covered by the electronic monitoring provisions of the ESA, they are included in the count to determine whether the employer employs at least 25 employees).
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Q 15. Are assignment employees of temporary help agencies included in the count to determine if the agency has met the 25-employee threshold?
A 15. Yes, they are employees of the agency and they are included; however, assignment employees are not included in the count to determine if the client to which they are assigned to perform work meets the threshold.
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Q 16. What happens if an employer’s employee count is fewer than 25 employees in Ontario on January 1, but the count increases at a later point in the same calendar year?
A 16. If, on January 1, an employer employs fewer than 25 employees in Ontario, the ESA does not require the employer to have a Policy in place, even if the employer’s employee count increases at a later point in the same calendar year.
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Q 17. If an employer employs 20 employees in Ontario on January 1, 2022, but then hires five more employees in May 2022, is the employer subject to the requirement to have a written Policy in place for 2022?
A 17. No; however, if all 25 employees remain employed by the employer on January 1, 2023, the employer would meet the 25-employee threshold on January 1, 2023, and will be required to have a written Policy in place for all employees before March 1, 2023.
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Q 18. If an employer employs 25 employees or more in Ontario on January 1, but the count decreases later in the same calendar year, is the employer still required to have a written Policy in place?
A 18. Yes; however, if when the assessment of the “25-employee threshold” is conducted again the following January the employer employs fewer than 25 employees, the employer will not need to have a written Policy in place for that calendar year.
Q 19. Must the Policy apply to all of the employer’s employees?
A 19. Yes, the Policy must apply to all of the employer’s employees in Ontario to whom the provision applies, including management, executives and shareholders if they are employees under the ESA. The employer is not complying with the ESA if its Policy applies only to some of its employees.
The employer is not required, however, to have the same Policy for all of it employees; it can have a single Policy that applies to all employees, or different Policies for different groups in a single document or in multiple documents.
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Q 20. Where the employer is required to have a written Policy in place, must the Policy also apply to all assignment employees who are assigned to perform work for the employer in Ontario?
A 20. Yes, e.g., if an assignment employee is assigned to perform work for an employer in a role that is not addressed in the employer’s Policy, the employer would have to amend the Policy to address the work being done by the assignment employee. Although the Policy must apply to assignment employees, assignment employees do not need to be addressed separately in the Policy.
Q 21. Must an employer’s written Policy be a stand-alone document?
A 21. No, it can be part of another document such as a comprehensive workplace human resources policies and procedures manual.
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Q 22. What information must the employer’s written Policy contain?
A 22. (1) A statement as to whether the employer engages in electronic monitoring of employees. Furthermore, if the employer does not electronically monitor its employees, its written Policy must specifically state this.
(2) If the employer does electronically monitor employees, the written Policy must contain specific information: a description of how the employer may electronically monitor employees; a description of the circumstances in which the employer may electronically monitor employees; and the purposes for which information obtained through electronic monitoring may be used by the employer.
(3) The date the Policy was prepared and the date any changes were made to the Policy.
Q 23. Do employers have any record-keeping obligations with respect to their written Policies?
A 23. Yes, they must retain a copy of every written Policy required by the ESA for three years after the Policy is no longer in effect.
Q 24. Is an employer, including a temporary help agency, that is required to have a written Policy in place required to provide a copy of the Policy to its employees and, if so, is there a deadline within which the Policy must be provided to them?
A 24. Yes, the employer must provide a copy of the written Policy to its employees within 30 calendar days of the day the employer is required to have it in place, and the day an existing Policy is changed. The employer does not need to provide a copy of the written Policy to employees annually if it has not changed from the previous year.
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Q 25. Is an employer required to provide a copy of the written Policy to new employees and, if so, is there a deadline within which the Policy must be provided to them?
A 25. Yes, within 30 calendar days of the later of the day the employer is required to have the Policy in place or the day the employee becomes an employee of the employer.
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Q 26. Is an employer that is required to have a written Policy in place required to provide a copy of it to assignment employees who are assigned to perform work for the employer and, if so, is there a deadline within which the Policy must be provided to them?
A 26. Yes, by the later of within 24 hours of the start of the assignment or 30 calendar days from the day the employer is required to have a Policy in place.
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Q 27. How may the employer provide the written Policy to employees?
A 27. As a printed copy, an attachment to an email if the employee can print a copy, or a link to the document online if the employee has a reasonable opportunity to access the document and a printer (and knows how to use the computer and printer).
Q 28. Are there limitations on what employees can file a complaint about with respect to the employer’s written Policy?
A 28. Yes, complaints can only be made to the ministry, or be investigated by an employment standards officer, regarding an alleged contravention of the employer’s obligation to provide a copy of the written Policy within the required timeframe to employees or to assignment employees assigned to perform work for the employer. Employers may consider, however, seeking legal advice about whether its Policy would create any entitlements that an employee can enforce outside of the ESA.
Q 29. How may employers use information obtained through electronic monitoring of its employees?
A 29. Although the ESA requires the employer to state in its written Policy the purposes for which it may use information obtained through electronic monitoring (e.g., to gauge overall employee productivity) the employer’s ability to use such information is not affected or limited by the ESA’s rules about the Policy. For example, the employer can rely on information obtained through electronic monitoring for any reason, including to discipline or terminate the employee, or to support its position that the employee was guilty of willful misconduct, disobedience, or willful neglect of duty that is not trivial and has not been condoned by the employer and is therefore exempt from the ESA’s termination and severance entitlements. The ESA also does not limit the use of information obtained through electronic monitoring of an assignment employee assigned to the employer’s workplace.
Finally, the guidance provides the following checklist that employers may use when creating a written Policy:
For certain employers that are required to have their written Policies in place by October 11, 2022, the guidance provides timely and useful information. The information in the guidance will also be useful for employers that may be required to have a Policy in place in subsequent years, i.e., in 2023 and/or the years that follow. Employers are encouraged to become familiar with the guidance and to seek the assistance of experienced employment counsel in drafting their Policies.
