Employers with 25 or more employees as of January 1st of any year must have a written policy on electronic monitoring in place no later than March 1st of that same year. This new requirement for a written policy requires employers to be transparent by providing employees with certain information about any electronic monitoring in place. It is important to note that it does not establish a right for employees not to be electronically monitored by their employer, nor does it create any new privacy rights for employees.

Now, let’s talk about what employers need to be aware of.

  • These requirements were added to the Employment Standards Act, 2000 (ESA) on April 11, 2022.
  • A transitional provision establishes that employers that meet the 25-employee threshold on January 1, 2022 have until October 11th, 2022 to meet the new requirement to have a written policy in place.
  • An employer shall provide a copy of the written policy with respect to electronic monitoring to each of the employer’s employees within 30 days of preparing the policy or, if an existing written policy is changed, within 30 days of the changes being made.

What are the essential details?

Your written policy must include the following details:

  • Whether the employer electronically monitors the employees and if so,
    1. a description of how the employer may electronically monitor employees. For example monitoring employees emails, online chats, or tracking the websites that employees visit during working hours.
    2. what circumstances the employer may electronically monitor employees. For example, the employer may monitor employee emails and online chats at any time.
  • the purposes for which information obtained through electronic monitoring may be used by the employer. For example, electronic monitoring is used to ensure the appropriate use of employer equipment, and to ensure work is being performed during working hours.
    1. The date the policy was prepared, and the date any changes are made to the policy.
  • The policy must apply to all of the employer’s employees in Ontario. This includes full-time, part-time, and casual employees, management, executives, and shareholders if they are employees under the ESA.
  • To determine the employee count, each year, count your employee total as of January 1. If your numbers change above or below 25 employees during a year, you do not need to implement a new policy within that current year, and cannot eliminate an existing policy until January 1st of the following year.
  • Employers are not required to have the same policy for all its employees. The employer can implement a single policy that would apply to all their employees, or different policies for different groups of employees, which could be in a single document or in multiple documents.
  • If the employer does not electronically monitor their 25+ employees, the employer is still required to implement a policy that must specifically state this.

Policy Requirements:

The ESA states “Electronic monitoring” includes all forms of employee and assignment employee monitoring that is done electronically. What is required to be captured in this policy is not limited to devices or other electronic equipment issued by the employer or electronic monitoring that happens while employees are at the workplace. For example, the policy must capture electronic monitoring parameters around hybrid, remote, or in office work models and if the employee uses their own computer for work purposes.

Employers are require to keep a copy of every written policy on electronic monitoring that was required by the ESA for three years.

RLB’s HR Consulting team offers support in Policy Developments, Legal Compliance, Training Sessions, Performance Management and so much more! To find out more about the wide variety of services the HR Consulting team can provide you with contact the team at RLBPeople@rlb.ca.

In addition, don’t miss RLB People’s HR Consulting Manager, Dana Gidge, speaking about building a compensation strategy and what that means in the Great Re-evaluation. Learn all about best practices and trends to watch for while developing a compensation framework for 2023. Register today at: https://www.rlb.ca/events/hr-seminar-navigating-team-performance-in-2022/