Within the last couple of years, working from home has become a prevalent new way of life, creating a new workstyle for employees and employers. With those changes a variety of privacy concerns arose within the workplace. In an aim to address those concerns and to provide greater transparency in the workplace, new amendments to the Employment Standards Act (“ESA”) have come into effect on October 11, 2022.

The ESA is an Ontario statute that governs the basic minimum standards for essential conditions of employment in the province. These new changes require all employers, with 25 or more employees as of January 1st, to prepare and have in place a written policy on the employer’s electronic monitoring practices. These employers must now be more transparent and clear by stating in the written policy if they electronically monitor employees.

Although there is no clear definition of “electronic monitoring” in the ESA, some guidance from the Ministry of Labour provides that “electronic monitoring” includes all forms of employee and assignment employee monitoring that is done electronically. These can include:

a) Using a GPS to track the movement of an employee’s delivery vehicle

b) Using an electronic sensor to track how quickly an employee scans items at a store check-out

c) Tracking websites that employees visit during working hours

Who is impacted by the ESA amendments?

While the written policy must apply to all the employer’s employees in Ontario, the policy will also apply to all assignment employees who are assigned to perform work for the employer in Ontario. The ESA defines “assignment employees” as “an employee employed by a temporary help agency for the purpose of being assigned to perform work on a temporary basis for clients of the agency”.

Although the policy will apply to assignment employees, assignment employees are not included in the employee count because they are still considered employees of the help agency. To determine whether an employer meets the appropriate 25 employee threshold, and thus must have a written policy in place, anyone who meets the definition of “employee” will be counted.

The total number of employees in Ontario, regardless of location, are counted and can include any of the following:

a) homeworkers

b) probationary employees

c) interns that meet the below criteria

a. receive training from an employer;

b. are being trained in a skill that is used by the employer’s employees; and

c. work performed must not be part of a program under a college, university or private career college under the Price Career Colleges Act, 2005

d) officers of a corporation who perform work or supply services for wages

e) employees on definite term or specific task contracts of any length

f) employees who are on lay-off, so long as the employment relationship has not been terminated and/or severed

g) employees who are on a leave of absence

h) employees who are on strike or who are locked-out

i) employees who are exempt from the application of all or part(s) of the ESA (although these employees may 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)

Currently, as of October 11, 2022, employers with more than 25 employees as of January 1, 2022, have 30 days to provide a written copy of the policy to employees. Moving forward, if an employer has 25 or more employees as of January 1st, they will have until March 1st of that same year to prepare the written policy.

E.g., If an employer has 20 employees as of January 1st, 2023, but hires 5 more employees during the year. That employer is not required to have a written policy in place for 2023. If on January 1st, 2024, that same employer has retained (or maintained) 25 employees, a new written policy will need to be implemented by March 1st, 2024.

What do employers need to do?

The purpose of the policy is to create greater transparency in the workplace. The policy itself must state whether employer electronically monitors employees, and if so, provide a description of how and in what circumstances the employer may electronically monitor employees; provide the purpose for which the information obtain may be used by the employer; and the date the policy was prepared or changed in any way.

A copy of the policy must be provided to each employee and to all assignment employees who perform work for the employer within 30 days of the day the policy is required or within 30 days of any change to the policy. New employees must receive the policy within 30 calendar days of when they become an employee. It is important to note that the purpose of the policy is to simply provide transparency to employees.

The amendments to the ESA do not establish new rights for employees to not be electronically monitored nor does it create any new privacy rights for employees. 

If you need any help in preparing a written policy for electronic monitoring of employees, please feel free to reach out to our employment group. 

Jonathan Liu

Student at Law