Bill 88, Working for Workers Act, 2022

“Electronic monitoring” is not defined by Bill 88. However, government guidance states that electronic monitoring “includes all forms of employee and assignment employee monitoring that is done electronically”.

Examples of electronic monitoring include GPS tracking of a delivery vehicle or tracking websites an employee visits during working hours.

Further, the scope of an electronic monitoring policy is not limited to employer-issued devices/equipment or monitoring that occurs while at the workplace. A written policy must capture if an employer electronically monitors an employee’s use of a personal computer for work. The policy also applies whether work is conducted at the workplace, the employee’s home, or in a hybrid setting.

Bill 88 does not create a right for employees not to be electronically monitored by their employer, nor does it establish any new privacy rights. Rather, it requires that employers be transparent as to whether they are electronically monitoring their employees. If employers do electronically monitor employees, the written policy must:

• Describe how the monitoring occurs, and in what situations.
• Explain the purposes for which the information obtained through electronic monitoring may be used.
  

Government guidance stipulates that an electronic monitoring policy must include:

• A statement confirming whether the employer electronically monitors employees.
• If yes, the policy must include:
  
  • A description of how employees are electronically monitored.
  • A description of the circumstances in which the employer may electronically monitor employees.
  • For what purposes the employer may use the information collected through electronic monitoring.
• The date the policy was prepared and the date any changes were made to the policy.
  

The policy must apply to all of the employer’s employees who work in Ontario including full-time, part-time, casual and assignment employees. However, an employer is not required to have the same policy for all of its employees. Instead, an employer can create different policies for different groups of employees.

There is nothing in Bill 88 to indicate that electronic monitoring policies will impact or replace other ESA provisions.

Only those employers who employ 25 or more employees in Ontario on January 1 of any year are required to have a written policy on electronic monitoring. This considers all of the employer’s Ontario employees, even if they are working at separate locations. For example, if your organization has 2 locations with 15 employees each, there are 30 employees total and so a policy must be in place at each location.

A copy of every written electronic monitoring policy must be kept for 3 years after the policy is no longer active.

For 2022, employers will have until October 11, 2022 to have a written electronic monitoring policy in place. Beginning in 2023, employers who employ 25 or more employees on January 1 will be required to have a written policy in place before March 1.

With respect to existing employees, employers must also provide a copy of the written electronic monitoring policy within 30 calendar days of:

• The day the employer must have the policy in place, or
• An existing policy being changed.
  

With respect to new employees, the employer must provide a copy of the written policy within 30 days of the later of either:

• The day the employer must have the policy in place, or
• The day the individual becomes an employee of the employer.
  

A printed or electronic copy of the policy may be provided to employees. If providing an electronic copy such as an e-mail attachment or an online link, employers must ensure that the employee has access to a printer.

An employee can make a complaint to the Ministry of Labour, Immigration, Training and Skills Development or an employment standards officer, if there is an allegation that the employer has not implemented a written policy or provided a copy of it within the required timeframe.