Ontario Has Proposed New Legislation that Would Require Certain Employers to Disclose and Provide Details if They Electronically Monitor Employees

On February 24, 2022, the Government of Ontario issued a press release, announcing that it would propose legislation that would require large employers to tell their workers if, how and why they are being monitored, electronically. Initially, there was speculation that these proposed changes would be included in new privacy legislation, or as amendments to previously-existing privacy laws. However, on February 28, 2022, the Legislative Assembly of Ontario (“LAO”) tabled and underwent the first reading of Bill 88 – An Act to enact the Digital Platform Workers’ Rights Act, 2022 and to amend various Acts (“Bill 88”). In addition to establishing a new Act to establish rights for workers who perform digital platform work, Bill 88, if it receives Royal Assent, will amend the Employment Standards Act (“ESA”) to impose new requirements on the Province’s employers.

Who Would be Affected by the Proposed Amendments to the ESA?

If Bill 88 is passed, the proposed amendments to the ESA will impose new obligations upon Ontario’s employers, who employ 25 or more employees. Conversely, employees of business who have 25 or more employees will be afforded new rights that were not previously in place. Bill 88 would also provide that those who meet the definitions set out in the Act, as amended, of “business consultants” or “information technology consultants”, would be added to the list of workers to whom the ESA does not apply. Should Bill 88 receive Royal Assent, all of the changes included in it would come into effect on January 1, 2023.

How Would the Proposed Amendments Affect Employers

The most significant effect of the proposed amendments to the ESA, as it pertains to employers, is that employers with a work force of 25 or more employees would be required to have a written policy in place for all employees, with respect to electronic monitoring of employees. Such a policy would be required to include explanations of whether the employer monitors its employees and, if so, describe how and when the employer may conduct such electronic monitoring, as well as provide the purposes for which an employer may use any information obtained through electronic monitoring.

An employer that is required to have a written policy regarding electronic monitoring will have an obligation to provide a copy of the written policy to all of its employees, within 30 days of the date the policy must be in place. Similarly, if an employer makes any changes to its written policy on electronic monitoring of employees, it will be required to provide a copy of the amended policy to all of its employees, within 30 days of the policy being amended. For employees that are hired after such a policy comes into effect, the employer will have to provide them with a copy of the policy within 30 days of the employee’s start date. Finally, if an employee is assigned by a temporary help agency to undertake work for an employer, the employer will be required to provide the temporary worker with a copy of the policy within 24 hours of the worker starting the assignment or within 30 days of the date the employer is required to have the policy in place, which date comes later.

Reasons for the Proposed Legislation

Given the manner in which technology continues to evolve, there has been a great increase in the tools available to employers who wish to electronically monitor what their employees are doing. Furthermore, as a result of the COVID-19 pandemic, the effects of which are still being felt, far more workers than ever before are now working from home or otherwise remotely. The inability of many employers to physically monitor the tasks that their employees are performing in the office, has created more incentive for employers to conduct electronic monitoring of their employees. This must be balanced with the privacy rights of employees, who should be aware of whether they are being electronically monitored, the extent of such monitoring, and the purposes that their employers wish to achieve by conducting such monitoring.

Recommendations for Employers

Employers should be sure to have conversations with their employees to clearly explain the terms of their electronic monitoring policies. Where possible, it is advisable to have employees sign an acknowledgment, confirming that they have reviewed and understand the policy. Employees should be reassured that electronic monitoring will not go beyond what is permissible under the written policy and employers should conduct regular audits to ensure that the information being collected is not beyond what the policy permits. Finally, employers should ensure that employees be provided with access to any of their own personal information that is collected in accordance with the policy.

Another point to keep in mind will apply to businesses that employ the services of “business consultants” and/or “information technology consultants”. Depending on whether the individuals or corporations such businesses employ meet the definitions, as set out in the proposed amendments to the ESA, the businesses may no longer be obligated to provide their “business consultants” and/or “information technology consultants” with certain entitlements or protections guaranteed under the ESA. However, before taking any actions related to the rights of those you do business with, we would always recommend that you seek the consult of a commercial litigation lawyer, who is well versed in employment litigation law and contract disputes.

We will continue to monitor and provide updates on this proposed legislation, as it moves through the LAO.

This article was written for employers operating in the Province of Ontario for non-unionized employees. This article is not intended to provide legal advice. If you have specific questions about employment law, please speak with a Walker Law employment lawyer.

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