As we have previously discussed, the Ontario government has recently passed Bill 88, The Working for Workers Act, 2022. This Bill can be observed as another recent step in modernizing employer requirements to provide employee transparency.
This Bill has been effective since April 11, 2022. It amends the Employment Standards Act, 2000 to include electronic monitoring requirements in the form of requiring a workplace policy. We have set out below a summary of what the Bill is about and how it might apply to your workplace as an employer or as an employee.
What is the History of Bill 88?
On February 24, 2022, the Provincial government introduced its plan for legislation that would require employers in Ontario to inform employees whether they are being monitored electronically and how this monitoring is being conducted.
On February 28, 2022, the legislation was introduced as Bill 88, the Working for Workers Act.
The passing of this Bill established one of the first privacy-related obligations for private sector employers in Ontario. While the Bill became effective in April of this year, the Bill provided a transition period for employers.
This transition period allows for the electronic monitoring policy requirement only to be effective as of October 11, 2022.
Basics of Bill 88
Amongst other things, this Bill requires employers to have written policies for electronic monitoring and subsequently requires providing these policies to employees.
As mentioned above, Bill 88 amends the Employment Standards Act, Ontario’s employment standards legislation. This Bill brings a new part to the Employment Standards Act which is named “Written Policy on Electronic monitoring”.
As a result of Bill 88, employers with at least 25 employees as of January 1 of each year will be required to have a written policy addressing electronic monitoring.
The Ontario government has explained that the purpose of Bill 88 is to protect workers’ privacy by requiring employers to be upfront about how they track employees and their use of electronic devices. Ontario’s Minister of Labor Monte McNaughton stated that “[e]verything our government is going is about building an economy that works for workers”.
Requirements for the Content of the Policy
The written policy required by Bill 88 does not currently have strict guidelines, but rather sets out a general premise for what it must contain.
The policy must first address whether employees are in fact electronically monitored. If employees are monitored, the policy must go on to address:
- How and in what circumstances employees are electronically monitored;
- The purposes for which the electronic monitoring may be used; and
- Any other information prescribed by regulation.
In short, the Policy must provide a description of how, and in what scenarios, employees would be electronically monitored.
What does “electronic monitoring” mean?
Electronic monitoring is not a term defined by Bill 88. As a result of this vague framework, employers should consider each of the types of electronic monitoring systems that are currently deployed in their workplaces. This should also encompass any remote work electronic monitoring strategies.
It can likely be assumed that the Bill applies to technology used in corporate networks and personal devices that are used for work-related purposes. Some electronic monitoring systems could include:
- Key fobs or timecards
- Video or audio recording
- Keylogging software
- Tracking email and internet usage
- Network threat detection tools
- Tracking application usage
The requirement to disclose the “circumstances” of when the electronic monitoring takes place is open-ended, and can likely be understood that the requirement to disclose applies on a non-routine basis. An example of this could be during a workplace investigation.
The lack of definitions as set out above open up potential difficulty for both employers and employees to understand exactly how these amendments to the Employment Standards Act will affect them. The most established outcome of this Bill, at this stage, is that more transparency regarding workplace electronic monitoring is now mandated.
The Ministry of Labour has also not yet provided any sort of substantive guidance on what definitions, or what should be included in the policy itself.
Rules Around the Implementation of the Policy
In addition to content requirements, Bill 88 loosely establishes the form of the Policy, and vaguely how it must function practically in the workplace.
The Policy applies to employees who are physically present in the workplace, and to those who are in the field or working remotely (or any combination of the above).
The Policy, and any amendments that may occur in the future, must be dated. The Policy must be provided to employees within thirty days from which it was first prepared, and then thirty days from any changes that are made to the already established policy.
New employees are required to be provided with a copy of the Policy:
- Within thirty days from their start date;
- Within 24 hours from the start of their assignment, if they are a temporary help worker; or
- Within thirty days from the date an employer is required to implement the policy.
Employers must retain a copy of every written policy for three years after the policy is in effect.
Employee’s Rights and Electronic Monitoring
Bill 88 undoubtedly creates some rights for employees surrounding electronic monitoring as a result of the requirement for a workplace policy. With that being said, these rights are not as expansive as an employee may think.
Bill 88 does not control or change an employer’s ability to use the information that is gathered through the electronic monitoring done in the workplace. The Bill does not affect or limit an employer’s ability to monitor its employees electronically.
If an employee were to file a complaint under the Employment Standards Act, this complaint can only be in relation to the employer’s obligation around the timelines of when to provide the Policy to employees. In other words, an employee does not have an avenue to complain about the contents of the policy – just whether they were provided it in accordance with the legislation.
As mentioned above, under Bill 88 employees are not able to file a complaint under the Employment Standards Act in most circumstances as related to the electronic monitoring Policy. However, employers should note that the Ministry of Labour likely continues to hold the ability to conduct workplace investigations to verify compliance with the Employment Standards Act, or to address any related issues – such as those with electronic monitoring. It could be expected that the Ministry of Labour will publish content related to electronic monitoring for employers, clarifying this even further.
Notes for Employers
The introduction of Bill 88 has provided employers in Ontario a fresh opportunity to audit their current monitoring systems, prior to developing the new required electronic monitoring policy. Below we have listed some considerations in this regard.
The most essential requirement underneath Bill 88 is the timeline for providing notice to employees regarding any electronic monitoring. Employers should be vigilant in adhering to these guidelines.
The Bill expressly states that it does not limit or affect employers’ ability to use information collected through the electronic monitoring of their employees. Even with this, employers could consider the necessity of intrusive or heavy electronic monitoring. A risk of this type of monitoring could be constructive dismissal claims that arise as a result. Instead, employers may consider monitoring practices that are reasonable in the context of their business and operational needs and are conducted on an as needed basis.
To help mitigate potential workplace concerns, employers may consider also implementing privacy policies in other to establish employee’s general policy expectations.
Steps employers may consider prior to developing a Policy
- Review the Company’s current relevant procedures. This could include social media and email policies.
- Examine the workplace in order to understand how the Policy will need to be implemented. For example, if there is a remote workforce, employers should consider how they will disclose to this group this when they will be monitored and why.
- Take time to practically assess all related electronic monitoring systems with IT teams and other third-party service providers.
Sultan Lawyers provides comprehensive workplace investigation support to employers. This includes a full review of specific matters in the workplace and a review of all related policies and procedures. For further information and assistance, please contact the Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or here.
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