Ontario's new electronic monitoring law lacks clear definition of 'electronic monitoring'

What Ontario's new legislation means for employers

Ontario's new electronic monitoring law lacks clear definition of 'electronic monitoring'

After Oct. 11, employers with 25 or more employees must have a written policy in place detailing their electronic monitoring of employees.

The new policy requirement came via the Progressive Conservative Government’s Bill 88, the Working for Workers Act, 2022, which received Royal Assent April 11. The policy must state whether the workplace has electronic monitoring, and if so, a description of how and in what circumstances employees are monitored. Employers also must state their purposes for obtaining the information, what the employer intends to do with that information, and the dates the policy was prepared and on which any changes were made.

It is important for employers to understand that they need to have a policy in place, whether they engage in electronic monitoring or not, says Patrizia Piccolo, partner at Piccolo Heath LLP, in Toronto. “If you don't electronically monitor, you still need a policy that says, ‘We don't electronically monitor.’”

The legislation also lacks a clear definition of “electronic monitoring,” she says.   

“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.’”

“It's leaving employers open to having to make their own determination on what that definition would look like.”

It will be a fact-specific exercise and companies will need to think outside the box, assess what could constitute electronic monitoring, and determine how to define it in their policy, says Piccolo.

“‘Electronic monitoring’ includes all forms of employee and assignment employee monitoring that is done electronically,” states Ontario’s guidance. Examples include using GPS to track delivery drivers, electronic sensors which track the speed at which employees scan items in grocery store check-outs, and tools tracking websites that employees visit during work hours.

Other examples that employers should keep in mind are when they record Microsoft Teams or Zoom meetings, and whether they are requiring people to indicate their availability on those apps, says Piccolo.

Employee monitoring also has a privacy component, she says. Just because an employer declares a policy does not mean that their monitoring is justified.

“As an employer, you still got to go through the analysis of whether or not the monitoring that you're engaging in might violate privacy laws.”

The development of electronic monitoring polices may put a spotlight on privacy violations and companies should engage in some self-reflection about the different ways they are monitoring employees, says Piccolo.

“I think we're going to see, perhaps, challenges that come forward from employees, once it's revealed to them… what kind of monitoring is actually taking place.”

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