Part XI.1 was added to the ESA 2000 by the Working for Workers Act, 2022 (WFWA 2022), effective April 11, 2022. 

Part XI.1 of the ESA requires employers that employ 25 or more employees on January 1st of any year to have a written policy in place before March 1st of that year for all employees with respect to the electronic monitoring of employees.  The policy must state whether the employer electronically monitors employees.  If the employer does, the policy must contain a description of how, and in what circumstances, the employer may electronically monitor employees and must set out the purposes for which the information obtained through electronic monitoring may be used by the employer.  The policy must also include the date it was prepared and the date any changes were made to the policy.

The phrase “electronic monitoring” is not defined in the legislation.  It is Program policy that “electronic monitoring” includes all forms of employee and assignment employee monitoring that is done electronically.  Section 41.1.1 is not limited to the electronic monitoring of devices or other electronic equipment issued by the employer, nor is it limited to electronic monitoring that happens while employees are at the workplace.

The employer has certain obligations with respect to when the employer has to provide a copy of the written policy to its employees and to assignment employees who are assigned to perform work for it.  Obligations are also created with respect to the retention of its electronic monitoring policies (see subsection 15(8.2) for more information on the record-keeping obligations).

A transitional provision sets out different timeframes that apply when the Part first takes effect: employers are to use January 1, 2022 (which is the January 1st immediately preceding the date that is six months after the WFWA 2022 receives Royal Assent) as the point-in-time to establish whether they meet the "25-employee threshold" and, if they do, they must have a written policy in place for all employees with respect to the electronic monitoring of employees by October 11, 2022 (which is six months after the day the WFWA 2022 received Royal Assent).  After 2022, the transition provision will no longer have any effect and the time periods apply as set out in subsection 41.1.1(1).

The alleged contraventions of Part XI.1 for which employees and assignment employees can file a complaint are limited.  A complaint can only be made to the ministry, or be investigated by an Employment Standards Officer, with respect to an alleged contravention of the employer’s obligation to provide a copy of the written policy within the required timeframe to its employees and to assignment employees who are assigned to perform work for it.  A complaint alleging any other contravention of section 41.1.1 cannot be made or be investigated by an employment standards officer.

Part XI.1 also contains a provision setting out, for greater certainty, that nothing in section 41.1.1 affects or limits an employer’s ability to use information it obtained through the electronic monitoring of its employees in any way it sees fit.

Part XI.1 applies to all employees and employers covered by the ESA, except the Crown, a Crown agency or an authority, board, commission or corporation all of whose members are appointed by the Crown and any employees of such an employer.  See section 2.1 of O. Reg. 285/01 for information. 

Section 41.1.1 – Written Policy on Electronic Monitoring

Written policy on electronic monitoring – ss. 41.1.1(1)

Required information – ss. 41.1.1(2)

41.1.1(2)  The written policy with respect to electronic monitoring must contain the following information:

  1. Whether the employer electronically monitors employees and if so,
    1. a description of how and in what circumstances the employer may electronically monitor employees, and
    2. the purposes for which information obtained through electronic monitoring may be used by the employer
  2. The date the policy was prepared and the date any changes were made to the policy.
  3. Such other information as may be prescribed

Subsections 41.1.1(1) and (2) were added to the ESA 2000 by the Working for Workers Act, 2022, effective April 11, 2022.

Section 41.1.1 creates certain obligations on employers to put in place and distribute to their employees, and to assignment employees who are assigned to perform work for them, a written policy on the electronic monitoring of employees. 

Subsection 41.1.1(1) provides that an employer that employs 25 or more employees on January 1st of any year must, before March 1 of that same year, ensure that a written policy is in place for all employees with respect to electronic monitoring of employees. Subsection (2) sets out the information that must be contained in the written policy. More specifically, the policy must state whether the employer electronically monitors employees. If the employer does, the policy must contain a description of how, and in what circumstances, the employer may electronically monitor employees and must set out the purposes for which the information obtained through electronic monitoring may be used by the employer.  The policy must also include the date it was prepared and the date any changes were made to the policy.

Section 41.1.1 does not establish a right for employees not to be electronically monitored by their employer, nor does it create any new privacy rights for employees. Its scope is limited to requiring that certain employers be transparent as to whether they electronically monitor employees, and where they do, to be transparent in their approach by describing how and in what circumstances that monitoring occurs, and the purposes for which the information obtained through the electronic monitoring may be used.   

In order to better understand subsections (1) and (2), the key elements have been broken down and discussed individually below.

An employer that employs 25 or more employees on January 1 of any year

In order for an employer to be required to have a written policy in place for all employees with respect to electronic monitoring of employees under the ESA, the employer must employ 25 or more employees on January 1st of any year. This is a point-in-time assessment. In other words, in order to determine whether this criterion is met, the employer must take a “snapshot” of the number of employees it employs on January 1st. 

On January 1st, if the employer employs fewer than 25 employees, then the ESA does not impose a requirement that the employer have a written policy in place with respect to electronic monitoring of employees. This is the case even if the employer’s employee count increases at a later point in the same calendar year. For example, if an employer employs 20 employees on January 1st (and hence the requirement does not apply) and later hires five more employees in June of that same year, the employer continues to not be subject to the requirements to have a written policy in place for all employees with respect to electronic monitoring of employees. However, if all 25 employees remain employed by that employer, the employer will have obligations under this Part in the following year when the “snapshot” assessment is again undertaken on the following January 1st. In this example, the employer will have 25 employees on that January 1st date and will therefore be required to have a written policy in place for all employees with respect to electronic monitoring of employees before March 1st of that year.

Conversely, if an employer employs 25 employees or more on January 1st (and hence the requirement applies) and that employer’s employee count decreases at a later point in the same calendar year, the employer is still obligated to have a written policy in place with respect to electronic monitoring of employees. This is the case until the “snapshot” assessment of the “25-employee threshold” is again undertaken on the following January 1st. If the employer employs fewer than 25 employees on that January 1, the ESA requirement to have a written policy in place no longer applies to that employer. 

There are a number of issues that may arise in determining whether the “25-employee” threshold is met:

Related employers

If two or more employers are treated as one employer by virtue of s. 4 of the Act, then all employees employed by these two or more employers are included when determining whether the "25-employee" threshold has been met. This is because of the definition of "employer" in s. 1 of the Act, which reads:

"employer" includes,

(b) any persons treated as one employer under section 4, and includes a person who was an employer.

Multiple locations

Where a single employer has multiple locations, all employees employed at each of the locations in Ontario are to be included when determining whether the "25-employee" threshold has been met. For example, an employer owns three sandwich shops with 12 employees employed in each shop on January 1st. This employer employs 36 employees. The employer must have a written policy in place for all employees with respect to the electronic monitoring of employees, even though there are fewer than 25 employees employed at each individual shop.

Which employees are included in the count?

All workers who meet the definition of "employee" are included when determining whether the 25-employee threshold has been met. See the discussion of the definition of "employee" in ESA Part I, s. 1 of the Manual. Included in the definition of "employee" are:

  • homeworkers
  • probationary employees
  • some trainees
  • officers of a corporation who perform work or supply services for wages
  • employees on definite term or specific task contracts of any length
  • employees who are on lay-off, so long as the employment relationship has not been terminated and severed pursuant to Part XV of the Act
  • employees who are on a leave of absence, including leaves of absence under Part XIV of the ESA
  • employees who are on strike or who are locked-out. Persons on strike or lock-out are employees under common law and are also considered to be employees under the inclusive definition of "employee" in the Act; and
  • employees who are exempted from the application of all or part of the Act. Employees do not lose their status as employees merely by virtue of being exempt from all or part of the Act

Employees of temporary help agencies are employees of the agency, so are included in the count only for the purpose of determining whether the agency has met the 25-employee threshold, not for the purpose of determining whether the client the employee is placed with has met the 25-employee threshold. Note that the agency’s count must include all of its assignment employees, whether active or inactive on January 1st.

When this “count” is being done, it is the number of employees that are counted, and not the number of "full-time equivalents". This means that part-time employees each count as one employee, regardless of the number of hours they may work. For example, an employer that employs 26 part-time employees who each work halftime has 13 full-time equivalents, but employs 26 employees for the purpose of this provision.

The question is not whether there are at least 25 employees scheduled to work or working on January 1. The question is whether the employer has an employment relationship with at least 25 employees on January 1.

The policy must be in writing and must be in place before March 1st

The employer’s policy with respect to electronic monitoring of employees must be in writing, which includes being electronic.  Note that subsections 41.1.1 (3), (4), and (5) impose requirements on the employer with respect to providing a copy of the written policy to its employees and to any assignment employees who are assigned to perform work for it. 

The policy must be in place before March 1st.  In other words, the latest day the policy can take effect in order for the employer to be in compliance with the provision is the last day of February.  (Note this is not the case during the time when the transition provisions in subsection (8) apply.)

While compliance with this provision requires the employer to have a written policy with respect to electronic monitoring of employees in place by March 1st - and to provide a copy of the written policy to its employees and assignment employees who perform work for it within the set timeframes – note that per ss. 41.1.1 (6), neither an employee nor assignment employee can file a claim with the Employment Standards Program, or have a complaint investigated, about the content of the policy itself.  As an example, an employee or assignment employee cannot file a complaint alleging that the employer’s policy/the client employer’s policy does not accurately reflect its electronic monitoring practices or that what is described in the policy has not been followed.  Employees and assignment employees may only file a complaint with respect to the obligations set out in subsections (3) – (5) with regards to providing a copy of the policy to the employee/assignment employee.

All employees (including assignment employees assigned to perform work for the employer) must be covered by a written policy

All employees must be covered by the employer’s written policy.  In other words, the employer would not be in compliance with this provision if its policy applied to only a portion of its employees – for example, if the policy applied only to the employer’s sales staff but not its managerial staff. However, this doesn’t mean that the employer is required to have the same policy for all its employees. It is Program policy that the employer’s policy can be comprised of different policies (either in a single document or in multiple documents) for different individuals or different groups/classes of employees or it could be a single policy that applies to its employees across-the-board. 

It is program policy that an employer’s written policy on electronic monitoring must also apply to all assignment employees who are assigned to perform work for that employer. (Note, this obligation arises only where the employer is a client of a temporary help agency and meets the 25-employee threshold based on the count of its own employees.) This approach is consistent with the language in subsection (1) - “all employees” - and the requirement in subsection (5) obliging the employer to provide assignment employees who perform work for the employer with a copy of the employer’s policy.  Assignment employees need not be addressed separately in the policy, but it must apply to them.  For example, if an assignment employee is assigned to perform work for employer in a role that is not otherwise addressed in the employer’s written policy, the employer would need to amend the policy to address the work being done by the assignment employee in order to be in compliance with subsection 41.1.1(1).

Ultimately, this means that an assignment employee who works for a temporary help agency that employs 25 or more employees must be covered by the employer’s written policy on electronic monitoring and, where the assignment employee performs work for a client of the agency – where the client employs 25 or more employees itself - the assignment employee must also be covered by the client employer’s written policy on electronic monitoring for the duration of the work assignment.

An employer’s written policy with respect to electronic monitoring of employees may be a stand-alone document, or it may be part of another document (e.g. a comprehensive workplace HR policies and procedures manual).

The written policy must contain the required information

Subsection (2) sets out the information that must be contained in the employer’s written policy on electronic monitoring of employees.

Where the employer does not electronically monitor employees, the policy must say so.  In this situation, the employer has no further information obligations under this heading.

Where the employer does electronically monitor employees, the policy must specifically state this and 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.

As an example, if an employer tracks an employee’s delivery vehicle via GPS, the policy could include the following:

    • A description of how the employer may electronically monitor employees:  The employer monitors the employee’s movement by tracking the employee’s delivery vehicle through GPS.
    • A description of the circumstances in which the employer may electronically monitor employees: The employer monitors the employee’s movement in the vehicle for the entire workday, every workday.
    • The purposes for which information obtained through electronic monitoring may be used by the employer:  The employer uses the information obtained to assist in setting routes, for employee safety, to ensure employees do not deviate from their delivery route during their shift and to discipline employees who are untruthful about their whereabouts during working hours.

The requirement that the employer state the purposes for which information obtained through electronic monitoring may be used by the employer must be read in conjunction with subsection (7), which provides, for greater certainty, that nothing in section 41.1.1 affects or limits an employer’s ability to use information obtained through the electronic monitoring of its employees.

The employer’s written policy must include the date it was prepared and if any changes are made to the policy after that time, the date(s) of any of those changes.

Copy of policy – ss. 41.1.1(3), (4), (5)

41.1.1(3)  An employer that is required under this section to have a written policy with respect to electronic monitoring shall provide a copy of the policy to each of the employer’s employees within 30 days from the day the employer is required to have the policy in place or, if an existing policy is changed, within 30 days of the changes being made.

(4)  An employer that is required under this section to have a written policy with respect to electronic monitoring shall provide a copy of the policy to a new employee within 30 days of the day the employee becomes an employee of the employer or within 30 days from the day the employer is required to have the policy in place, whichever is later.

(5)  An employer that is a client of a temporary help agency, and that is required under this section to have a written policy with respect to electronic monitoring shall provide an assignment employee assigned to perform work for the employer with a copy of the policy within 24 hours of the start of the assignment or within 30 days from the day the employer is required to have the policy in place, whichever is later.

Subsections 41.1.1(3) – (5) were introduced into the ESA by the Working for Workers Act, 2022 on April 11, 2022.  These provisions establish rules about when the written policy must be provided to employees and assignment employees assigned to perform work for an employer.

The Employer’s Employees

Pursuant to ss. 41.1.1(3), the employer must provide a copy of the written policy with respect to electronic monitoring of employees to each of its employees within 30 days from the day the employer is required to have the policy in place, or if an existing policy was changed, within 30 days of the changes being made.   For information on when the employer is required to have a written policy in place, see subsection (1) and the transitional provision in subsection (8).

Subsection 41.1.1(4) requires the employer to provide a copy of the written policy with respect to electronic monitoring of employees to a new employee within 30 days of that individual becoming an employee of the employer or within 30 days of the day the employer is required to have the policy in place, whichever is later.

As an example, an employer is required to have a written policy in place with respect to electronic monitoring of employees on October 11, 2022. An individual becomes an employee of the employer on May 9, 2022, then the employer does not have to provide a written copy of the policy until November 10, 2022 (30 days after the employer was required to have a written policy in place).  However, if an individual becomes an employee of the employer on December 6, 2022, then the employer must provide a copy of the written policy to the assignment within 30 days of December 6, 2022.

Assignment employees assigned to perform work for the employer

This obligation arises where the employer is a client of temporary help agency and the employer meets the 25-employee threshold based on the count of its employees.

Subsection 41.1.1(5) provides that an employer that is required to have a written policy with respect to electronic monitoring must provide a copy of the policy to an assignment employee who is assigned to perform work for the employer within 24 hours of the start of the assignment or within 30 days from the day the employer is required to have a policy in place, whichever is later.  (Given this, an employer will never be required to provide a copy of its written policy to an assignment employee who performs work for it before the employer is required to provide a copy of the policy to its own employees.)

As an example, an employer is required to have a written policy in place with respect to electronic monitoring of employees on October 11, 2022.  If an assignment employee is assigned to perform work for that employer on May 9, 2022, then the employer does not have to provide a written copy of the policy until November 10, 2022.  However, if an assignment employee is assigned to perform work for the employer on December 6, 2022, then the employer must provide the written policy to the assignment within 24 hours of the start of the assignment.

“Days” in these subsections means calendar days. A copy of the written policy does not need to be provided to employees annually if the policy has not changed from the previous year.  This is because the obligation arises only within 30 days of the policy being prepared or changed.

Where an employer has different policies for different employees or employee groups, it is Program policy that the obligation is to provide only a copy of the policy that applies to that particular employee.  This applies equally to assignment employees.

For example, if the employer has different policies that apply to its IT staff, sales staff and managerial staff, an employee who does IT work only needs to receive a copy of the IT staff policy (in other words, the employer is not required to also provide that employee with a copy of the policies that apply to sales staff and managerial staff). If an assignment employee is assigned to perform work for the employer and the assignment employee will be engaging in IT work, the employer equally only needs to provide a copy of the IT staff policy to the assignment employee.

It is the Program’s position that an employer may provide the policy as a printed copy or as an attachment in an email to the employee. Further, and consistent with the Program's position regarding the provision of written wage statements under s. 12(1) and the information sheets for assignment employees under s. 74.7(3), an employer may provide the written policy via a link to the document on an internet database, if the employer ensures the employee has reasonable access to that database (i.e. the employer must ensure the employee has access to a computer - which includes devices such as tablets and smart phones - and is able to access a working link to the document) and ensures the employee has access to a printer and that the employee knows how to use the computer and the printer.

Complaints – ss. 41.1.1(6)

41.1.1(6)  A complaint under subsection 96 (1) alleging a contravention of this section may be made only with  respect to subsections (3), (4) and (5) and, for greater certainty, a person may not file a complaint alleging a contravention of any other provision of this section or have such a complaint investigated.

Subsection 41.1.1(6) was introduced into the ESA by the Working for Workers Act, 2022 on April 11, 2022. This provision limits the alleged contraventions under section 41.1.1 for which an employee or assignment employee can file a complaint with the ministry and limits what an employment standards officer can investigate under Part XI.1 in the course of a claim investigation.

A complaint can only be made to the ministry with respect to an alleged contravention of subsections 41.1.1 (3), (4) and (5). In other words, a complaint can be made and can be investigated by an employment standards officer only if the employee or assignment employee is alleging that the employer/client employer failed to provide a copy of the policy within the required timelines to: an existing employee (obligation set out in ss. 41.1.1(3)), a new employee (obligation set out in ss. 41.1.1(4)), or in respect of an assignment employee who is assigned to perform work for that employer (obligation set out in ss. 41.1.1(5)).

A complaint alleging any other contravention of section 41.1.1 cannot be made or investigated by an employment standards officer. This means, for example, that an employee is not able to make a complaint to the ministry where the employer’s policy allegedly does not contain all the required information, does not address all forms of electronic monitoring that the employer engages in, or alleging that the employer uses information obtained through the electronic monitoring of its employees differently that what is set out in its policy.

Similarly, where a claim is filed for a reason unrelated to Part XI.1 – say an employee filed a complaint claiming unpaid overtime – an employment standards officer who learns in the course of investigating that complaint of concerns the employee has with the employer’s electronic monitoring policy, would not be able to investigate any alleged contraventions under section 41.1.1 other than the requirements set out in subsections (3) to (5).

Use of information – ss. 41.1.1(7)

As an example, an employer may create a policy setting out that the information it collects through the electronic monitoring of employee internet usage is to be used by the employer only for the purpose of assessing overall employee productivity. If, however, the employer discovers through its electronic monitoring that an employee has been accessing inappropriate websites contrary to company IT policies, the employer can use that data for any reason, and is not limited by what was written in the policy. The employer can, for example, rely on that data to discipline or to terminate the employee, including to support its position that an exemption to ESA termination and severance entitlements arises due to the employee being guilty of wilful misconduct, disobedience, or wilful neglect of duty that is not trivial and has not been condoned by the employer.

Even though subsection (7) provides that, for greater certainty, nothing section 41.1.1 affects or limits an employer’s ability to use information obtained through the electronic monitoring of its employees, it is the policy of the Employment Standards Program that the principle applies equally in the context of a relationship between a client of a temporary help agency that is required to have a policy in place and an assignment employee who is assigned to perform work for that client. As such, it is Program policy that nothing in section 41.1.1 affects or limits the client of the temporary help agency from using information it has obtained through the electronic monitoring of an assignment employee.

Note that an employment standards officer who is provided with information obtained through the electronic monitoring of a claimant can equally use that information in determining the application of the ESA and its regulations; nothing in this section affects or limits an employment standards officer’s ability to use the information in making a determination on a claim.

Transition – ss. 41.1.1(8)

This provision was added by the Working for Workers Act, 2022 (WFWA 2022). It is a transition provision that modifies the January 1st and March 1st dates set out in subsection (1) for when the WFWA receives Royal Assent and Part XI.1 first comes into force (note this occurred on April 11, 2022).  It provides that:

  • Employers have until six months after the WFWA 2022 receives Royal Assent, which is October 11, 2022, instead of March 1st to have a written policy with respect to disconnecting from work in place for all employees, and
  • In determining whether the “25-employee threshold” is met, which establishes whether the employer has an obligation to have a written policy in place, the employer is to look at the number of employees it employed on the January 1st immediately preceding the date that is six months after the WFWA 2022 received Royal Assent.  In other words, given that October 11, 2022 is six months after the WFWA 2022 received Royal Assent, the employer will determine the number of employees it employed on January 1, 2022 to establish if the “25-employee” criterion is met.

Subsection 41.1.1(8) no longer has any effect after the transition period. In other words, after 2022, the timelines set out in subsection (1) will apply:  employers will take a “snapshot” of the number of employees they employ on January 1, beginning in 2023, to determine if the “25-employee threshold” is met and, if it is, they are required to have a written policy in place before March 1 of that year.