Employers urged to be transparent about software they use as Bill 88 comes into effect
Today is deadline day for Ontario’s Bill 88, Working for Workers Act – meaning all employers with 25 workers or more must have their electronic monitoring policy in place. While October 11 is the date on which businesses must have the policy in place, employers do have until November 10 to provide their employees with a written copy. As of January 2023, employers need to revaluate their policies to determine if they must update it according to the number of staff they have in the New Year.
What should be included in the policy?
The details of what should and shouldn’t be included in the policy have been a bone of contention for many employers, with official guidance coming across as fairly vague. However, employers have been informed that at the very least the policy should delineate;
- If employees are being monitored or if they’re not
- How employers will be monitoring their employees
- The hours and times that employees are being monitored
- How the data will be collected and what employers intend to do with said data
Employers must ensure that all actions in the policy are reasonable, a don’t infringe on employees’ rights. These policies are intended to deter malpractice, not to “spy”. If the policy is deemed “unreasonable”, employers could risk incurring constructive dismissal lawsuits.
How do I count my employees?
Employers should only be looking at how many employees they have in Ontario, not Canada as a whole. Employers have been warned that this policy extends to all employees – including part-time workers, employees who’ve been laid off, and those on leaves of absence.
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Transparency is key
When drafting a policy, it’s important that employers are as transparent as possible. There’s also the expectation that employers don’t use this rule to “snoop” on staff and that employee privacy is considered.
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“It's important that employers are being transparent about software they use and it's important for employees to know what they're being subjected to,” Linda Mota, VP HR at Topanga, tells HRD. “I think that was something that was really essential to be implemented as well. I’ve seen one or two clients implement software that crossed some lines, and they've brought it to their attention. Employers often think they're within the rights to do so but some of this software is pretty invasive. HR leaders really need to be aware of that.”
Handling employee complaints and questions
Employers should expect a certain level of questions around the policy, particularly regarding monitoring in remote or hybrid work. Employers should be prepared for all concerns, ensuring that the policy is clear, concise, and legally binding. If you’re unsure, always consult an employment lawyer.
“A complaint can only be made to the ministry, or be investigated by an employment standards officer, where there is an alleged contravention of the employer’s obligation to provide a copy of the written policy within the required timeframe to its employees or to assignment employees who are assigned to perform work for it,” says official guidance. “A complaint alleging any other contravention of the policy on electronic monitoring of employee provisions cannot be made, or be investigated by, an employment standards officer.”
Key deadlines for employers
- October 11 – Employers must have a policy in place detailing how they intend to monitor employees
- November 10 – Employers must provide all employees with a written copy of the policy
- January 1, 2023 - Employers must revaluate their policies to determine if they must update them
