Nearly all employers with 25 or more employees in Ontario must comply with Ontario's new legislative requirement to have an Electronic Monitoring policy in place by October 11th, 2022. To help employers comply, Gowling WLG is selling a policy template that meets the minimum statutory requirements as is, and a related checklist to help employers determine their organization’s unique needs. This package is available on PartnerVine for Can$1,000. Purchasers of the product on PartnerVine can download the policy template and checklist immediately upon purchase. The policy downloads as an editable Word document and the checklist downloads as a pdf.
What are Ontario's Electronic Monitoring Policy requirements?
Ontario's Electronic Monitoring requirements are intended to provide transparency with respect to an employer’s use of electronic monitoring tools. On April 11th, 2022, the Legislative Assembly of Ontario received royal assent for Bill 88, the Working for Workers Act, 2022 ("Bill 88"). Bill 88 amends Ontario's Employment Standards Act, 2000 (“ESA”) to require employers with 25 or more employers to have a written policy with respect to the electronic monitoring of employees.
On July 21st, the requirements of Bill 88 were explained by Ontario's Ministry of Labour, Training and Skills Development in guidance (the "Guidance"). The Guidance states that an employer's Electronic Monitoring Policy must cover three issues:
1. A statement as to whether the employer engages in electronic monitoring of employees.
The Guidance defines "electronic monitoring" to include all forms of employee and assignment employee monitoring that is done electronically. Some examples include where an employer:
- uses GPS to track the movement of an employee’s delivery vehicle,
- uses an electronic sensor to track how quickly employees scan items at a grocery store check-out, and
- tracks the websites that employees visit during working hours.
The Guidance states that an employer's policy is required to cover:
- devices or other electronic equipment issued by the employer
- electronic monitoring that happens while employees are at the workplace
For example, if the employer is electronically monitoring the employee through the employee’s own personal computer that is used for work purposes, the policy must capture that. It applies equally where the employee works from home, at the employer’s workplace, or under a hybrid “workplace/home” model.
If the employer does not electronically monitor employees, the policy must specifically state this.
2. Where the employer does electronically monitor employees, the policy must also contain the following information:
- A description of how the employer may electronically monitor employees.
- A description of the circumstances in which the employer may electronically monitor employees.
- The purposes for which information obtained through electronic monitoring may be used by the employer.
3. The date the policy was prepared and the date any changes were made to the policy.
Who must have a written policy?
Except for federally regulated organizations or organizations controlled by the Crown, all employers in Ontario who employ 25 or more employees must have a written policy. The number of employees is counted on January 1st of any year.
When must the written policy be adopted?
Apart from 2022, the written policy must be adopted by March 1 of the year the employer employs 25 or more employees. In 2022, the first year of implementation, the deadline for employers was October 11th, 2022 to adopt their written policy.
How can Gowling WLG's Policy and Checklist help?
Gowling WLG's template policy and detailed checklist helps employers responsibly meet their requirements under the law.
Downloaded as a pdf, the checklist helps employers:
- determine whether they must develop a written policy covering Electronic Monitoring,
- meet the minimum requirements in developing the content of a written policy, and
- ask the right questions to tailor the policy to their organization.
The checklist provides structure for the decisions that must be made for a written policy. Developed by Gowling WLG's top employment lawyers, the checklist incorporates their experience in Ontario.
Downloaded as a Word document, the template Electronic Monitoring policy covers the essential issues an organization needs to cover and includes guidance to help employers understand how to draft the policy.
With the policy and checklist, an organization will have information and resources to craft a written policy on electronic monitoring that fits its workplace.
Where can additional legal advice be obtained?
After drafting a policy using the checklist and template, organizations may wish to have a lawyer review their draft policy and add more detail unique to its environment and circumstances. Organizations that purchased the policy template and checklist will have saved themselves time and money and be well prepared to meet with a lawyer or law firm of their choosing.
Gowling WLG's Employment Practice
Gowling WLG's Employment, Labour, and Equalities ("ELE") Practice in Canada comprises over 40 professionals across jurisdictions, many of whom are ranked most highly by national and international rating agencies, including Chambers Global and Best Lawyers in Canada. For more information on Gowling WLG's ELE Practice, visit Gowling WLG's website here. To purchase the Ontario Electronic Monitoring Policy and Checklist, visit the product page here.