Background
Pursuant to Section 41.1.1 of the Employment Standards Act, 2000 (“ESA”), employers with 25 or more employees are now required to have a written policy on the electronic monitoring of employees by October 11, 2022. This is yet another amendment to the ESA under the Working for Workers Act, 20221, which has brought about other changes to the employment law landscape such as the right to disconnect and the prohibition of non-competes.
Recently, the Ontario Ministry of Labour, Training and Skills Development updated its online Guide to the Employment Standards Act, 2000 with a chapter on the electronic monitoring of employees, which provides further insight about this requirement.
Impact on Employers
While the amendments impose disclosure obligations on employers, the ESA makes clear that this new policy requirement does not “affect or limit an employer’s ability to use information obtained through electronic monitoring of its employees.”2 It does not create any new privacy rights for employees, nor does it establish a right for employees not to be electronically monitored by their employer.3
Further, complaints alleging a contravention of this section of the ESA may be made only with respect to subsections (3), (4), and (5), which refer to an employer’s obligation to distribute a copy of its written policy4. Overall, the amendments appear to encourage employer transparency with employees and as such, employers should ensure that their written policies on electronic monitoring are clear and accessible.
