Employers with 25 or more employees, as of January 1, 2022, must have a written electronic monitoring policy in place by October 11, 2022. This change comes from Bill 88, Working for Workers Act (the Bill) which received royal assent on April 11, 2022. The Bill amends the Employment Standards Act (ESA) requiring employers to have a written policy on their electronic monitoring of employee practices.
When counting the number of employees to determine whether the employer is bound to the Bill, the employer must include part-time and casual workers. Employers who have less than 25 employees are not required to have a policy on their electronic monitoring of employee practices. However, if an employer passes the 25-employee threshold by January 1st of a year, then they must create an electronic monitoring policy by March 1st of that said year. For example, if an accounting firm has 22 employees but hires 5 additional employers in December 2022, meaning that they have over 25 employees by January 1, 2023, they must create an electronic monitoring policy by March 1, 2023.
What is “electronic monitoring” is not directly defined in the Bill or the ESA. However, electronic monitoring includes all forms of monitoring employees that are done electronically. Some examples of electronic monitoring include when an employer:
- uses a GPS to track the time and the direction that an employee's truck is moving
- uses an electronic sensor to track how quickly an employee scans items at a retail store check-out
- tracks employees' browsing history during working hours
Each electronic monitoring policy will be unique to the employer. However, the electronic monitoring policy must state:
- whether the employer is monitoring their employees;
- how the employer is monitoring their employees (when applicable);
- the purpose of the electronic monitoring policy; and
- the date when the policy was prepared and when changes were made to it.
The employer can create different electronic monitoring policies for different employee groups. Nevertheless, when considering every electronic monitoring policy that an employer has, all employees must be covered.
Employers must also document and retain copies of their electronic monitoring policy. This includes giving all employees a copy of their electronic monitoring policy within 30 calendar days after its completion and implementation. Further, employers must retain a written copy of their policy for 3 years after it ceases to be in effect.
Despite this electronic monitoring policy requirement, the ESA does not require the employer to provide employees with a right to privacy. It simply requires the employer to disclose how they electronically monitor their employees.
How Suzanne Desrosiers Professional Corporation Can Help
Suzanne Desrosiers Professional Corporation can help employers who are affected by the new requirements draft an electronic monitoring policy that is tailored to their workplace. Our advice can help ensure that the employer knows what enforceable employee entitlements their policy makes. You can reach us by calling us at 705-268-6492.