Ontario: Monitoring the situation - new legislative provisions on electronic employee monitoring
The COVID-19 pandemic has fundamentally altered how nearly every industry in the world operates. From temporary accommodations to more permanent changes, the paradigm shift of the pandemic has been palpable. The proliferation of work-from-home arrangements has enjoyed robust traction over the last two years. However, removing employees from their more supervised work environments and leaving them to work from the comfort of their own homes may understandably come with concerns about employee productivity and the use of work devices away from the workplace. Jennifer L. Hunter and Christopher Dias, from Lerners LLP, discuss the new legislation on electronic employee monitoring and how this may impact both employers and employees.
In turn, employers may have relied on methods of electronic employee monitoring during the pandemic either for the first time, or perhaps more than ever. For Ontarians, such employer practices will be coming into focus sooner than later with the enactment of new legislation that is, in part, specifically targeted at electronic employee monitoring.
Ontario's Bill 88, the Working for Workers Act 2022 ('the Bill'), was first introduced in Ontario's Legislative Assembly on 28 February 2022. It moved relatively quickly through the Ontario Legislature and ultimately received royal assent on 11 April 2022. The Bill is comprised of four Schedules, three of which amend existing statutes. Schedule 2 specifically applies amendments to Ontario's Employment Standards Act, 2000 ('ESA') that pertain to electronic employee monitoring.
Scope of the Bill
The Bill adds Part X1.1 to the ESA, entitled 'Written Policy on Electronic Monitoring' which contains the newly constructed section 41.1.1. Under this legislative change, employers with 25 or more employees are required to have a written policy about their electronic employee monitoring practices. Pursuant to section 41.1.1(8), employers have until 11 October 2022 to create their policy. The intention behind this amendment seems to be, in light of work-from-home arrangements proliferating in the pandemic, an increased focus on employees' privacy and a call for policy transparency from employers.
The impetus for this portion of the Bill may have been spurred by the recently passed Bill 27, the Working for Workers Act 2021. Having received royal assent in December of 2021, Bill 27 amended the ESA to add a section requiring employers to implement a 'disconnecting from work' policy. Similar to the Bill, the remote work issue of a right to disconnect was brought to the forefront by the long-term impact of the pandemic.
The Bill applies to provincially-regulated employers and their employees under the ESA. The scope of the legislative change is primarily captured under section 41.1.1(2), which describes the kind of information that must be included in the policy:
- whether the employer electronically monitors employees;
- if so, a description of how and in what circumstances the employer may electronically monitor employees, and the purposes for which information obtained through electronic monitoring may be used by the employer; and
- the date the policy was prepared and the date any changes were made to the policy.
A copy of the electronic employee monitoring policy is to be provided by an employer to their employees within 30 days of its creation, and an amended policy is to be provided within 30 days of any changes. For new hires, the employer must provide them with the policy on the same timelines or within 30 days of their hiring, whichever is later. Given these timelines, initial copies of policies are to be given to employees by 11 November 2022 with employers ensuring that they have a policy in place by 1 March every year thereafter.
For the sake of clarity, it is equally important to note what the Bill does not do. The amendments to the ESA do not limit or change an employer's ability to use the information they obtained through electronic monitoring, which is specifically noted in section 41.1.1(7). Nor does the Bill create a substantive right for employees to be free from electronic employer monitoring in part or altogether. In fact, while a steps towards greater protection for the privacy interests of employees, these amendments do not actually imbue employees with any new privacy rights.
Importantly, these amendments also do not provide a mechanism by which employees can complain about their employers monitoring them electronically, nor can they complain about the use of the information obtained through this electronic monitoring.
The only complaint mechanism in place for employees is, pursuant to section 41.1.1(6), to complain that their employer did not fulfill their legal obligation to create and provide a written policy to them, which would contravene either section 41.1.1(3), (4), or (5).
Subject to any future regulations, the Bill's additions to the ESA are concerned with a requirement that employers be transparent and forthcoming about their electronic monitoring policies with their employees. It is not meant to curb electronic employee monitoring; it is merely meant to make employees aware that they are being monitored, how they are being monitored, and for what potential purpose(s) are they being monitored.
This is of some importance. In the past, employers in Ontario have been advised that they are entitled to monitor their employees electronically in virtually any manner, including via computers, both in and out of the office, devices and on social media. Employers have been further advised that they should disclose such monitoring to their employees. With the new ESA amendments, employers are now legally obligated to disclose. Transparency is a key principle in the protection of privacy, so while there are legitimate criticisms that Bill 88 did not go far enough, including from Ontario's Information and Privacy Commissioner ('IPC'), the change is not merely a hollow gesture but is a step in the right direction.
Ontario businesses should take note of the absence of a definition for 'electronic monitoring'. While this is likely not an immediate issue since the amendments do not limit or prohibit electronic monitoring in any way at this time, it could become of concern in the future if limitations or restrictions are later applied but without guidance on whether your business' monitoring practices fall within its scope. This could create confusion over what to disclose and what not to disclose to employees, amongst other issues.
As alluded to above, there are some who say the Bill does not go far enough in providing a robust framework for the privacy rights of Ontarians. In particular, though the Bill made changes to the ESA, it did not go so far as to enact distinct and separate legislation pertaining to the regulation of electronic monitoring, and its relation to employees' privacy rights. Such legislation is anticipated following Ontario's Modernizing Privacy in Ontario1 ('the White Paper') published in June 2021. The White Paper discussed proposed provisions for private sector privacy legislation and sought commentary from interested stakeholders by September 2021, but no legislation has been introduced as of yet. However, with the re-introduction of the Bill C-11 for the Digital Charter Implementation Act, 2020 as Bill C-27 for the Digital Charter Implementation Act 2022, it is likely that an Ontario bill is forthcoming.
As proposed in the White Paper, such legislation would, for the first time, explicitly address the collection, use, and disclosure of employee information by a private-sector, provincially regulated employer in Ontario, and would require that such activities are solely for the purpose of establishing, managing, or terminating an employment relationship or managing a postemployment relationship. The White Paper's discussion of a rights-based approach and 'fair and appropriate purposes' may serve to limit an employer's ability to collect personal information from employees, either through electronic monitoring or otherwise, and such impending developments in the law should be kept in mind as employers are developing either their initial or future iterations of their electronic employee monitoring policies.
At this stage, Ontario businesses can likely easily maneuver the Bill's amendments to enshrine their electronic employee monitoring practices in a clear and accessible written policy. With that said, employers should keep their eyes open for potential further amendments to the ESA, or an entirely new legislative framework that may impact not just the requirement for transparency, but the substantive right of employees to privacy resulting in the limiting of collection to legitimate purposes that a reasonable person would find fair and appropriate under the circumstances.
The imminent deadlines of the Bill's amendments to the ESA mean that employers need to begin thinking about their written electronic employee monitoring policies now, if they have not already. Policies must be finalised by 11 October 2022 and distributed to employees by 11 November 2022. For many organisations, this may be the first time they have to be this transparent and forthcoming with their monitoring policies. This will likely require thorough and ongoing conversations with the organisation's human resources department, IT department, legal counsel, and other related departments to ensure that transparency is being achieved in a compliant and accurate way.
Employers should also be mindful of their retention requirements under the new amendments. Each business needs to retain copies of every version of their written electronic employee monitoring policy for no less than three years after the policy ceases to be in effect. So, if your initial policy that is disseminated to employees in November 2022 becomes obsolete by January 2023, copies of that written policy must be retained until at least January 2026 as enshrined under section 15(8.2), which is an amendment to the ESA's recordkeeping regulations. The one caveat to highlight is that either the employer or another party can retain these obsolete written policies.
Finally, when crafting or fine-tuning their electronic monitoring policies, Ontario employers may want to take extra care in ensuring that their monitoring practices, and thus their monitoring policies, are reasonable exercises of oversight in their role as an employer. While the Bill does not define nor curtail electronic monitoring in any way at this time, the IPC made it very clear in a letter to the Legislative Assembly of Ontario's Standing Committee on Social Policy that they are interested in and are keeping an eye on this issue. Prior to the Bill receiving royal assent, the IPC proposed that their office have mandatory oversight of these electronic employee monitoring policies. Part of that oversight included having each employer continuously submit each written policy to them so that they could review them and publicly report on emerging trends across all policies. The IPC also advocated for more comprehensive Ontario privacy legislation that regulated electronic work monitoring practices, citing that such legislation could help Ontarians, employers, and lawmakers with a path forward amid new technological possibilities in a world of evolving work arrangements. All that is to say, with the IPC watching, and the assumed permanency of work-from-home arrangements, employers may want to take especially good care in crafting fair and minimally-intrusive electronic monitoring policies to prepare themselves for the inevitable day when robust, detailed, standalone legislation is brought into force in Ontario.