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Written policy on electronic monitoring of employees

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Overview

Employers that employ 25 or more employees on January 1 of any year are required to have a written policy on the electronic monitoring of employees in place. 

The policy must state whether or not the employer electronically monitors employees. If the employer does, the policy must include:

  • a description of how and in what circumstances the employer may electronically monitor employees
  • the purposes for which the information obtained through electronic monitoring may be used by the employer
  • the date the policy was prepared
  • the date any changes were made to the policy

An employer must, within the specified timeframes, provide a copy of the written policy to all of its employees and to all assignment employees who are assigned to perform work for that employer.

These requirements were added to the Employment Standards Act, 2000 (ESA) on April 11, 2022. There is a special rule that applies in the first year of the requirement. Employers that employ 25 or more employees on January 1, 2022 have until October 11, 2022 to have a written policy on the electronic monitoring of employees in place.

Beginning in 2023, and in the years that follow, employers that employ 25 or more employees on January 1 of any year must have a written policy on the electronic monitoring of employees in place before March 1 of that year.

The ESA requirements:

  • do not establish a right for employees not to be electronically monitored by their employer
  • do not create any new privacy rights for employees

The ESA requirements are limited to requiring that certain employers be transparent about whether they electronically monitor employees. If they do, the employer must be transparent by:

  • describing how and in what circumstances that monitoring occurs
  • setting out the purposes for which the information obtained through the electronic monitoring may be used

The requirements relating to written policies on the electronic monitoring of employees apply to all employees and employers covered by the ESA except the Crown, a Crown agency or an authority, board, commission or corporation whose members are all appointed by the Crown and their employees.

Employers with 25 or more employees required to have written policy

Employers are only required to have a written policy on the electronic monitoring of employees if they employ 25 or more employees in Ontario on January 1 of any year.

To determine how many employees they have, the employer must count the number of employees it employs on January 1.

The employer must count the individual number of employees, not the number of "full-time equivalents." Part-time employees and casual employees each count as one employee, regardless of the number of hours they work.

Multiple locations

Where an employer has multiple locations, all employees employed at each location in Ontario must be included when determining whether the 25 employee threshold has been met.

Related employers

In certain circumstances, two or more employers may be treated as one employer under the ESA.

If two or more employers are treated as one employer, then all employees employed in Ontario by these two or more employers are included in the count.

Employees to include in the count

Anyone who meets the definition of "employee" is counted, including:

  • 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/or severed
  • employees who are on a leave of absence
  • employees who are on strike or who are locked-out
  • employees who are exempt from the application of all or part(s) of the ESA (although these employees may not be covered by the electronic monitoring provisions of the ESA, they are included in the count to determine whether the employer employs at least 25 employees)

Temporary help agencies

Assignment employees of temporary help agencies are employees of the agency and are included in the count to determine if the temporary help agency has met the 25 employee threshold. Assignment employees of temporary help agencies are not included in the count to determine whether the client the employee is assigned to perform work for meets the threshold.

The agency’s count must include all of its assignment employees, whether active or inactive on January 1.

When the number of employees changes throughout the calendar year

If, on January 1, an employer employs fewer than 25 employees in Ontario, then the ESA does not require that the employer have a policy in place on the 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. 

When the employee count increases throughout the year

If an employer employs 20 employees in Ontario on January 1, 2022, that employer is not required to have a policy in place on the electronic monitoring of employees. Say the employer then hires five more employees in May 2022, this employer continues to not be subject to the requirements to have a written policy in place for 2022. 

However, if all 25 employees remain employed by that employer on January 1, 2023, the employer would meet the 25 employee threshold on January 1, 2023 and will be required to have a written policy on the electronic monitoring of employees in place for all employees before March 1, 2023.

When the employee count decreases throughout the year

If an employer employs 25 employees or more in Ontario on January 1, the requirement to have a policy on the electronic monitoring of employees applies. If the employee count decreases later in the same calendar year, the employer is still required to have a written policy in place. This is the case until the assessment of the “25 employee threshold” is done again the following January. If the employer employs fewer than 25 employees the following January 1, they do not need to have a written policy in place for that calendar year. 

Employees covered by the policy

The policy must apply to all of the employer’s employees in Ontario to whom the provision applies. This includes management, executives and shareholders if they are employees under the ESA. If the policy only applies to some of their employees, the employer is not complying with the ESA requirements (for example, if the policy applied only to the employer’s sales staff but not its managerial staff). 

This doesn’t mean that the employer is required to have the same policy for all its employees. The employer can have a single policy that applies to all employees, or its policy can contain different policies (either in a single document or in multiple documents) for different groups of employees. For example, a retail employer may decide to have one policy that applies to its office staff and a different policy that applies to its in-store sales staff.

Assignment employees

Where the employer is required to have a written policy in place, the policy must also apply to all assignment employees who are assigned to perform work for that employer in Ontario. Assignment employees do not need to be addressed separately in the policy, but it must apply to them. For example, if an assignment employee is assigned to perform work for an 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.

Policy requirements

An employer’s written policy on electronic monitoring of employees may be a stand-alone document, or it may be part of another document (for example a comprehensive workplace human resource policies and procedures manual).

The employer’s written policy must contain the following information:

1. A statement as to whether the employer engages in electronic monitoring of employees. 

“Electronic monitoring” includes 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
  • tracks the websites that employees visit during working hours

What is required to be captured in the employer’s policy is not limited to:

  • 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.

Example: An employer tracks an employee’s delivery vehicle using GPS:

The policy would include:

  • A statement that the employer electronically monitors its employees.
  • A description of how the employer may electronically monitor employees. For example, 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. For example, 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. For example, 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.

Example: An employer monitors its employees’ emails and online chats

The policy would include:

  • A statement that the employer electronically monitors its employees.
  • A description of how the employer may electronically monitor employees. For example, the employer monitors employee emails and online chats through a software program created specifically for this purpose.
  • A description of the circumstances in which the employer may electronically monitor employees. For example, the employer may monitor at any time employee emails and online chats.
  • The purposes for which information obtained through electronic monitoring may be used by the employer. For example, the employer uses the information obtained through electronic monitoring of employee emails and online chats to evaluate employee performance, to ensure the appropriate use of employer equipment, and to ensure work is being performed during working hours.

3. The date the policy was prepared and the date any changes were made to the policy.

The ESA does not require the employer to provide employees with a right to privacy. The ESA requirements give some employees the right to be provided with specified information about electronic monitoring by their employer.

Employer record-keeping requirements

Employers must retain a copy of every written policy on electronic monitoring that was required by the ESA for three years after the policy is no longer in effect.

Copy of the policy

Deadline — providing a copy to the employer’s employees

An employer, including a temporary help agency, that is required to have a written policy in place must provide a copy of the written policy to its employees within 30 calendar days of:

  • the day the employer is required to have the policy in place
  • the policy being changed (if an existing policy is changed)

The employer must also provide a copy of the written policy to any new employees within 30 calendar days of the later of these two events:

  • the day the employer is required to have the policy in place
  • the day the individual becomes an employee of the employer

Deadline — providing a copy to assignment employees performing work for a client employer

An employer that is required to have a written policy in place must provide a copy of the written policy to any assignment employees who are assigned to performed work for it by the later of these two timelines:

  • within 24 hours of the start of the assignment
  • within 30 calendar days from the day the employer is required to have a policy in place

The employer does not need to provide a copy of the written policy to employees annually if the policy has not changed from the previous year.

How to provide the written policy

The employer may provide the policy to employees as:

  • a printed copy
  • an attachment to an email if the employee can print a copy
  • a link to the document online if the employee has a reasonable opportunity to access the document and a printer (and knows how to use the computer and printer)

Limitations on complaints and claim investigations

Employees are limited in what they can file a complaint about with respect to the employer’s written policy on electronic monitoring. 

A complaint can only be made to the ministry, or be investigated by an employment standards officer, where there is an alleged contravention of the employer’s obligation to provide a copy of the written policy within the required timeframe to its employees or to assignment employees who are assigned to perform work for it. A complaint alleging any other contravention of the policy on electronic monitoring of employee provisions cannot be made, or be investigated by, an employment standards officer.

Although there are limitations on what an employee can file a complaint about or have investigated by the ministry, an employer may wish to seek legal advice about whether its policy would create any entitlements that an employee could enforce outside of the ESA.

Using information collected through electronic monitoring

The ESA’s rules about the employer’s written policy on electronic monitoring do not affect or limit an employer’s ability to use information obtained through the electronic monitoring of its employees in any way it sees fit.

Under the ESA, the employer is required to state in its written policy the purposes for which it may use information obtained through electronic monitoring. However, the ESA does not limit the employer’s use of the information to the stated purposes.

For example, an employer may create a policy setting out that the information it collects through the electronic monitoring of employee internet usage will 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 information for any reason. The ESA does not limit the employer’s use of the information to what was written in the policy.

The employer can, for example, rely on that information to discipline or terminate the employee. It could also use that information to support its position that the employee was guilty of wilful misconduct, disobedience, or wilful neglect of duty that is not trivial and has not been condoned by the employer and is therefore exempt from the ESA’s termination and severance entitlements. 

Similarly, nothing in the ESA limits the use of information the employer obtained through the electronic monitoring of an assignment employee who is assigned to its workplace.  

Employer checklist for creating a policy

The following is a checklist employers may use when creating a written policy on electronic monitoring of employees:

  • Determine whether you are required to have a written policy in place.
  • If you are subject to the requirement, develop a written policy and ensure the policy:
    • contains all required information
    • applies to all of your employees and any assignment employees that perform work for you (the content of the policy does not need to be the same for all groups of employees, though all employees must be covered by the policy)
    • is in place within the specified timeframe (for 2022, the policy must be in place by October 11, 2022. For all other years, the policy must be in place by March 1 of that year)
  • Provide a copy of the written policy to all of your employees and any assignment employees assigned to perform work for you:
    • in the appropriate format
    • within the required timeframe 
  • Retain a copy of every written policy required by the ESA for three years after the policy is no longer in effect.
Updated: July 21, 2022
Published: July 13, 2022