New law will require Companies to Disclose how they Monitor Employees

The Ontario government introduced Bill 88, the Working for Workers Act, 2022 on February 28, 2022. One of the key components of this new legislation is an amendment to the Employment Standards Act, 2000 requiring employers to disclose how they electronically monitor employees.

If the new legislation is passed, any employer with 25 or more employees in Ontario will need to create a written policy which discloses how they monitor their employees’ use of electronics, including computers, cell phones, GPS systems and other electronic devices.

The policies will need to confirm whether the employer electronically monitors its workers. If so, it will also need to contain a description of how and when the employer does this. Finally, the employer will need to disclose, in the policy, the purpose of collecting information through electronic monitoring.

Employers will need to have the policy in place six months after the proposed legislation comes into force and it will apply to all employees, regardless of their position and whether they are working in the workplace, in the field or at home.

Employers will be required to provide new employees with a copy of their policy within 30 days of the employee joining the organization. Copies of the policy will also need to be provided to all employees within 30 days of it first being enacted and when it is revised. Copies of each policy must be kept for 3 years after they cease to be in effect.

Ministry of Labour inspectors will enforce the new program when they conduct inspections. However, their powers are limited to ensuring that the employer has a policy and it is provided to employees in the proper timeline. The inspectors will not be able to address complaints about the content of the policy.

The government has promised to work with the business community in the coming months to provide guidelines and help with draft policies.

Notably, the legislation specifically states that the new law will not limit or affect an employer’s ability to electronically monitor its employees or use information obtained through such monitoring. Employers will just have to disclose how they do so. Many employers already have policies or contracts in place which alert employees to the fact that they may monitor the employees’ conduct on company devices. This law will make such disclosure mandatory.