Drafting an electronic monitoring policy: how to remain compliant

Organizations must have a written policy delineating what they're watching

Drafting an electronic monitoring policy: how to remain compliant

The recent Working for Workers Act was passed in Ontario, and with it came a flurry of new rules and regulations for employers. Looking past the controversial ‘right to disconnect’ law, the most eyebrow-raising legislation had to be the electronic monitoring policy.

All Ontario employers with more than 25 workers must inform their staff if they are, or they plan to, watch their online activity. Organizations must have a written policy delineating what and how they are watching – and it has to be on paper by October 11 2022.

But what sorts of monitoring should be taking place? In remote work, there’s a tendency to believe your teams aren’t being as productive away from the office - despite the fact that data has continuously found employees work longer hours in remote work. As such, the sales of surveillance tech has skyrocketed, as have questions around what’s considered legitimate ‘monitoring’ and what’s an  invasion of worker privacy.

“It remains to be seen if there will be further delineation of thresholds and scope to what is considered ‘invasive’,” says Patrick Stepanian, employment law consultant. “For the time being, and, if monitoring is done without conforming to the requirements set by legislation, then it would not be compliant. A valid business interest is required and should be clearly stated. Employers should consider using the least invasive monitoring tools and techniques to meet their needs.”

Drafting an electronic monitoring policy

Firstly, your policy must include who you intend to monitor, followed by the times you’ll be monitoring, how and why you’re monitoring, and for what purpose. You also need to detail what you intend to do with the information you collect. However, aside from that, there’s very little official guidance. Much like the ‘right to disconnect’, the law is open to a lot of interpretation. Employers even have to make their own determination of what constitutes ‘electronic monitoring’.

“Perhaps that was done deliberately to allow companies to fashion it in a way that’s necessary for them. But there really wasn't a lot of good, clear guidance, either through the guidelines or through a clear definition of what exactly is meant by ‘electronic monitoring,’” says Patrizia Piccolo, partner at Piccolo Heath LLP.

One thing is for certain - employers must act with transparency here. Courts probably won’t look favourably on employers that use this new rule to infringe of workers’ privacy – so it’s best for HR leaders to err on the side of caution. As Linda Mota, VP HR at Topanga, tells HRD, she’s seen the consequences for organizations that go too far.  

“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. And HR leaders really need to be aware of that.”

And remember, opting out isn’t an option. Even if you don’t intend to monitor your employees, you’ll still need a policy in place stating that.

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