Last year we wrote the Working for Workers Act, 2021. Now, many employees and employers have likely heard about Bill 88, the Working for Workers Act, 2022. With policy deadlines coming up quickly, however, we thought it necessary to revisit this bill and cover what you need to be aware of regarding this new electronic monitoring law, what it means for employees and employers, and the relevant deadlines. 

What is the Working for Workers Act, 2022

Bill 88, the Working for Workers Act, 2022, came into effect on April 11, 2022, creating the Digital Platform Workers’ Rights Act, 2022, and amending several employment-related acts. 

As a result of Bill 88, several significant changes have come to the employment landscape, including rights and protections for “digital platform workers” (for example, individuals who work for apps like Uber or Doordash), requiring employers with 25 or more employees to have a written policy concerning electronic monitoring of employees, and requiring employers to provide naloxone kits if they are reasonably aware that an employee is at risk of having an opioid overdose in the workplace. 

While Bill 88 covers several wide-ranging employment-related concerns, we’ll focus on the electronic monitoring policy requirements in this post. 

Bill 88 and Electronic Monitoring of Employees in Ontario

Bill 88 amended the Employment Standards Act to include a new Part XI.1 – Written Policy on Electronic Monitoring. This section requires that employers with 25 or more employees must have an electronic monitoring policy in place for all employees. For 2022, employers have until October 11, 2022 to create an electronic monitoring policy if they employ over 25 employees. Otherwise, employers who, on January 1 of any year, employ more than 25 employees will be required to put a written policy in place by March 1 of the same year. 

The electronic monitoring policy in question must cover the following: 

  • Whether the employer electronically monitors employees and, if they do, 
    • How and under what circumstances the employer monitors employees electronically; and
    • What the employer does with the information they obtain through electronic monitoring 
  • When the employer prepared the policy
  • Whether the employer has made any changes to the policy

What is “Electronic Monitoring”? 

Electronic monitoring is a broad term referring to any form of employee monitoring while an employee is at work. For example, an employer might track things like: 

  • The websites an employee visits on their work computer
  • Emails sent and received by an employee
  • Movement of an employee via GPS devices on company vehicles 

Can Workers Dispute Electronic Monitoring in Ontario? 

Employers are entitled to use legal electronic monitoring practices if they choose to do so. However, under the amendments from Bill 88, an employer must provide a copy of their electronic monitoring policy to all employees within 30 days of creation. In addition, if the policy is amended, an employer must provide updated copies of the policy to all employees within 30 days. As an electronic monitoring policy must describe how and under what circumstances the employer is electronically monitoring employees, employees should have a good understanding of any electronic monitoring they are subject to and the purpose of retaining.

Are All Employers Required to Create an Electronic Monitoring Policy in Ontario? 

As noted above, not all employers are required to create an electronic monitoring policy. First, employers are only required to create an electronic monitoring policy if they have more than 25 employees (or have more than 25 employees on January 1 of a given year). So, for instance, if you currently have 15 employees but have 30 employees on January 1, 2023, you will need to develop an electronic monitoring policy by March 1, 2023. 

There are exceptions to the rule, however. Only employees and employers covered by the Employment Standards Act are subject to these rules. For example, if you work with a few independent contractors, they will not count towards the 25 employees. The Crown and Crown agencies are not subject to these rules. 

Are Employers Without Electronic Monitoring Required To Have A Policy In Ontario?

Regardless of whether your company conducts electronic monitoring, you must develop an electronic monitoring policy. Even if your policy states that your company does not use electronic monitoring on employees, having a policy creates clarity for employees while meeting your obligations under the Employment Standards Act

What Happens If I Don’t Create an Electronic Monitoring Policy? 

If you don’t follow the rules relating to electronic monitoring policies in Ontario, you can be fined. The current fine is $250 for the first offence (multiplied by the number of employees affected by your non-compliance). 

Considerations for Employers Regarding Electronic Monitoring Policies in Ontario

Given that the October 11, 2022 deadline is coming up quickly, it’s crucial to determine whether you are subject to the electronic monitoring policy rules and get a policy in place if you haven’t already done so. We’ve provided a quick, helpful guide for tracking your obligations below: 

  • Determine whether your business needs an electronic monitoring policy 
    • If you have 25 or more employees, you will need an electronic monitoring policy 
    • If you do not have 25 or more employees but expect that your business may grow to employ 25 or more employees by January 1, 2023, it’s worth starting to think about your electronic monitoring policy now – you’ll need to have one in place by March 1, 2023
  • Create an electronic monitoring policy covering the following (1) whether and how your company monitors employees electronically and (2) outlining what you do with information obtained through electronic monitoring
  • Provide your electronic monitoring policy to all employees within 30 days of its creation

While creating an electronic policy might seem straightforward, it’s essential to do your due diligence before making assumptions. For example, you might assume that you are not electronically monitoring employees but later find out that your IT department uses a program that tracks your employees’ website visits. Company-wide discussions should take place before finalizing an electronic monitoring policy to ensure you understand how information is managed and collected within your company. 

Contact an Ottawa Employment Lawyer at Tierney Stauffer LLP

If you have further questions or concerns about Bill 88 or other employment law questions or want to ensure you are meeting your obligations under the Employment Standards Act, contact Tierney Stauffer LLP in Ottawa, Kingston, Arnprior, and Cornwall. Whether you’re an employee or an employer, our experienced employment lawyers can provide advice for various employment concerns, including contracts, terminations, and much more. To discuss your legal matter with a member of our employment team, call us at 1-888-799-8057 or contact us online to schedule a consultation. 

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