As of October 11, 2022, all employers in Ontario with 25 or more employees must now have a written policy on the electronic monitoring that takes place. This requirement stems from an amendment to the Employment Standards Act (ESA) earlier in 2022.
Our wrongful dismissal lawyer in Toronto emphasizes that this is an important change for employers to understand. The following will be a breakdown of how it works and if it applies to you.
The Policy Requirement:
The electronic monitoring policy must include:
- If the employer electronically monitors employees;
- A description of how the employer monitors;
- What circumstances the employer may monitor;
- How any information obtained by the employer through electronic monitoring may be used; and
- The date the policy was prepared, as well as the date any changes were made to it.
The policy must be made available to every employee within 30 days from the date the employer is legally required to enact such a monitoring policy.
What is Electronic Monitoring?
The ESA does not define what exactly electronic monitoring is. However, the Ontario Ministry of Labour does provide some guidance on the subject. Essentially, electronic monitoring captures any monitoring which occurs electronically on equipment issued by the employer whether it be at or away from the workplace. Electronic monitoring may also apply to employees using personal equipment that is used for work purposes.
Here are some examples provided by the Ministry of Labour of when an employer is monitoring its employees electronically:
- The employer uses a GPS to track the movement of an employee’s delivery vehicle;
- The employer uses an electronic sensor to track how quickly employees scan items at a grocery store check-out;
- Tracks the websites that employees visit during working hours.
What is an Employee?
An individual who meets the ESA definition of an employee is included in the count. This means that all full-time, part-time, and casual employees are included. The Ministry of Labour also provides additional guidance on who may be considered an employee for the purposes of the policy:
- Probationary employees
- Officers of a corporation who perform work or supply services for a wage
- Employees on a fixed-term contract
- Employees who are on lay-off, so long as they have not been terminated permanently
- Employees on leave of absence
- Employees on strike or locked-out
What is Meant by 25 or More Employees?
The new electronic monitoring policy law also captures more complex workplaces. For example, if an employer has 3 locations which each have 10 employees, that still meets the threshold as the aggregate number is used. That employer employs 30 individuals.
Likewise, there are circumstances where two or more employers may be treated as a related (or a single) employer. Thus, all employees employed in Ontario by these employers will be included in a single count.
Does the Policy Requirement Apply to You?
If the employer engages in electronic monitoring as described above, as well as employs 25 or more people as described above, then a written electronic monitoring policy is required.
If you are an employer with 25 or more employees as of January 1, 2022, your electronic monitoring policy was required by October 11, 2022. If you did not meet these criteria, but as of January 1, 2023 you will employ 25 or more people, you must have a written policy by March 1, 2023.
For more information, please see the Ontario Ministry of Labour website, or contact our law firm for advice.