Does my Organization Need an Electronic Monitoring Policy?

What do Facebook, Amazon, and employers all have in common? They all electronically monitor people.

As people are increasingly working remotely since the pandemic, the amount of electronic monitoring by companies has reportedly increased as well. This has caused concern among both employees and politicians.

To address this growing concern, the Ontario government introduced an amendment to the Employment Standards Act (ESA) earlier this year requiring all employers with 25 or more employees to create and implement a written policy on electronic monitoring. As this was a new requirement, employers were granted until October 11, 2022 to put the policy in place.

Organizations that don’t currently have 25 or more employees should still be aware of this requirement as they will need to implement an electronic monitoring policy if they grow above 25 employees in the future.

What Needs to be in the Electronic Monitoring Policy?

The requirements are fairly broad. But the legislation states that the policy must indicate whether the employer electronically monitors employees. If they do, the policy must describe how and in what circumstances they monitor and the purpose for which the information obtained through electronic monitoring may be used by the employer. The policy must also show the date it was prepared and any changes that were made to it.

The written policy must apply to all employees and assignment employees in the organization. But the policy can apply differently to people in different roles within the organization.

What Counts as Electronic Monitoring?

Electronic monitoring includes all forms of monitoring an employer does electronically of its employees. This can include things like using GPS to track the movement of an employee’s vehicle, using a sensor to track how quickly employees scan items at a grocery store checkout, tracking keypresses at a computer, tracking when employees come to and leave work through an electronic punch in and punch out system, electronically video recording employees, monitoring employees’ emails or online chats, and any other type of electronic monitoring.

The policy should also specify whether it is limited to devices issued by the organization or if it would include other things as well, such as any monitoring that may be done of employees’ personal devices that are used for work purposes. The need for such a policy applies whether the employee works in the office, remotely or in a hybrid model or on sites. If the employer doesn’t monitor employees, the policy must say so.

When the employer starts monitoring employees in a new way, the policy should be updated to reveal the new way that the organization is monitoring the employee and new copies of the policy should be distributed within 30 days of that change.

Do I Have 25 Employees?

To determine whether you have 25 employees, you take a snapshot of the number of employees you had on January 1st of the current year.

Most people working for the organization are considered employees. This includes both full time and part time employees as well as employees who are on a leave of absence, strike, layoff (and not terminated), fixed term contracts, permanent contracts, probationary employees, etc. Also, if your organization has multiple locations, each location in Ontario is included in the headcount.

Every employee, even if they work only one hour per week, is considered an individual employee in the calculation. However, assignment employees from temporary help agencies are considered employees of the agency, not the employer when determining whether you have 25 employees.

If your employee count rises above 25 employees or falls below 25 employees during the year, this change does not affect whether you are required to have a policy that year. Rather, the determination is made based on your employee count as of January 1^st.

When Do I Need to Implement and Distribute the Policy?

Employers who already have 25 or more employees must institute their electronic monitoring policy by October 11, 2022.

Starting in 2023, employers must institute their electronic monitoring policy by March 1st of any year where they have 25 or more employees as of January 1st.

Employers must provide copies of the written policy to all their employees within 30 days of preparing it or making any changes to it. They must also provide copies of policy to new employees within the first 30 days of their employment.

Employers who use assignment employees from temporary help agencies must provide those employees with a copy of the policy within 24 hours of starting the assignment or 30 days of it being implemented.

How Long Do I Need To Keep The Policy?

Employers have to keep a copy of each version of the written policy on electronic monitoring for three years after the policy is no longer in effect.

How Does This Requirement Limit an Organization’s Right to Electronically Monitor Their Employees?

The requirement to have a written policy on electronic monitoring does not affect the organization’s ability to collect or use information obtained through electronic monitoring. The legislation places no limits on what a organization can do with the information that they collect. It only requires that they disclose how they will use it to their employees through the policy.

For instance, if a organization chose to monitor intimate details about the employee’s personal life through its monitoring, the requirement to have this policy would not affect their ability to do that. But it should ensure that employees know that they are being monitored in that way by their employer.

What If the Employer Doesn’t Comply with the Requirements of this Law?

Employees can file a complaint if the employer fails to provide a copy of the policy to them in the timeline required by the ESA. But there is no provision allowing employees to file a complaint about how the employer chooses to electronically monitor for them.

Key Takeaways

• Employers with 25 or more employees as of January 1st must have a written policy and electronic monitoring in place by March 1st of each year (October 11 in 2022)

• You must provide a copy of the written policy to your employees and assignment employees within 30 days of it coming into force or being revised.

• The policy must reveal whether you electronically monitor your employees and, if so, how you do so.

• The policy must apply to all employees and any assignment employees that perform work for the organization, although there can be different content for different groups of employees.

• You must update the policy when you change the manner in which you electronically monitor your employees in any way.