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INSIGHTS

New Requirements for Electronic Monitoring - Coming This Fall!

Is your business ready for the October 11 Ontario deadline to comply?



Electronic monitoring is a pervasive element in our lives. We may not think about it all the time and it’s not always apparent, but we all know to expect it in most places we go, or on the devices we use.


Should we however expect it at work, even while we sit quietly at a desk, or working behind a counter serving customers? Employees should have a legitimate expectation of privacy in the workplace, but not one that is absolute.


Employers have a responsibility to manage their businesses to the best of their ability. These responsibilities can include employee productivity, absenteeism, theft, harassment, safety, along with many others. It makes total sense that a business today would use some form of electronic monitoring to assist in carrying out these responsibilities. There is, however, the balance between electronic monitoring, good supervision and leadership, and trust for the team that works for you.


WHAT DOES EMPLOYEE MONITORING LOOK LIKE?


Employee monitoring includes monitoring of all forms, such as video and audio surveillance, software, email and chats, website visits, and GPS tracking.


For years, Canadian businesses have been subject to upholding privacy legislation requirements, which includes electronic monitoring. Most notable are;

  • The Office of the Privacy Commissioner of Canada, which provides advice and information for individuals and businesses on protecting personal information.

  • The Personal Information Protection and Electronic Documents Act (PIPEDA), which sets out how private sector organizations can collect, use, and disclose personal information (some provinces have their own legislation similar to this), and applies to private sector businesses and corporations, unions, political parties and not-for-profits.

  • Province’s specific Freedom of Information and Protection of Privacy Acts (names may vary), which set out how public sector organizations can collect, use, and disclose personal information obtained in the course of doing business.


WHAT IS THE PROVINCE OF ONTARIO DOING THAT COULD BE ADOPTED BY OTHER PROVINCES?


Bill 88, The Working for Workers Act, 2022, amends the Employment Standards Act, 2000 (ESA) to include the following requirement: employers with 25 or more employees as of January 1st of each year, must have written policies for electronic monitoring in the workplace and to provide these policies to employees.


Affected businesses with more 25 or more employees in Ontario on January 1, 2022 must have their first policy in place by October 11, 2022, or risk a fine. Starting in 2023, employers with 25 or more employees in Ontario as of January 1st of any year, must have the policy in place before March 1 of that year.


WHAT MUST THE POLICY INCLUDE?


The electronic monitoring 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.


WHAT SHOULD ONTARIO EMPLOYERS DO TO RESPOND TO THIS NEW REQUIREMENT?


While the new requirement is not complex, employers need to be ready before October 11, 2022. Employers will need to take count of their employees in Ontario, and, if appropriate, create a policy that meets the standards set out. For further details on the requirement and to determine who counts as an employee to reach the threshold of 25, please check out the Government of Ontario’s webpage related to Electronic Monitoring.


For businesses outside of Ontario, it’s a great opportunity to review your privacy and electronic monitoring practices, policies or strategy. Frequently, big changes in one jurisdiction spark the interest of others.


WHERE CAN YOU FIND HELP?


TAP Strategy & HR Consulting can help you meet compliance in this and other areas by providing you with high quality, effective, and affordable solutions such as our Essential HR Toolkit and our Policy Handbooks.




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Bruce Weippert is the co-founder and president of TAP Strategy & HR Consulting, a boutique-style management consulting firm specializing in strategy, HR services and Helping Businesses Succeed.