On February 28, 2022, the Government tabled Bill 88, Working for Workers’ Rights Act, 2022, which, among other things, proposes an amendment to the Employment Standards Act, 2000 (“ESA”) that would require employers to inform their employees if they are being electronically monitored or tracked. If enacted, this would be the first legislation of its kind in Canada and could provide impetus for similar legislation in other Canadian jurisdictions.
Under the proposed new part of the ESA, Part XI.1, employers who employ 25 or more employees on January 1st of each year are required to have a written policy regarding electronic monitoring of employees (a “Policy”) before March 1st of the same year. There is a transitional provision allowing such employers to implement an initial Policy six months from the date of Royal Assent of Bill 88 (instead of March 1).
A Policy must contain information regarding whether an employer electronically monitors its employees and, if so, (i) a description of how and in what circumstances the employer may electronically monitor employees, and (ii) the purposes for which the employer may use information obtained through such monitoring. Bill 88 explicitly states that these new Policy-related provisions do not affect or limit an employer’s ability to use information obtained through electronic monitoring of its employees.
Any Policy must also outline the date it was prepared and the date any changes were made to it, as well as “such other information as may be prescribed” by further/future regulations. Further, any existing Policy must be retained by an employer for three years after the Policy ceases to be in effect.
A copy of any Policy must be provided to each employee within 30 days from the day the employer is required to have the Policy in place or, where a change is made to a Policy, within 30 days of such change. An existing Policy must be provided to new employees within 30 days of their commencement or within 30 days from the day the employer is required to have the Policy in place (whichever is later).
Bill 88 would allow a person to file a complaint under section 96 of the ESA if an employer has failed to provide copies of the Policy in accordance with Part XI.1.
Bill 88 has undergone its first reading. It will not come into effect until it undergoes a second and third reading and then receives Royal Asset.
Just like the province’s recent “disconnecting from work” policies, which we summarized in our February 25, 2022 update, Bill 88’s proposed electronic-monitoring provisions leave the specific contents of any monitoring Policy to the employer’s discretion. In other words, while the provisions would obligate employers with 25 employees or more to disclose if, how, and for what purposes employers are monitoring employees, they do not in themselves limit the type of monitoring employers may opt to engage in. Nevertheless, the disclosure that the proposed Part XI.1 of the ESA would require could be of assistance to employees concerned about their electronic privacy on the job. It could also better inform employers as to whether and how they monitor electronic activity. In these ways, Part XI.1 is a timely response to concerns about electronic privacy at work—concerns which have only grown following the impact the COVID-19 pandemic has had on various workplaces and the technologies used within them.
The lawyers at Heeney Vokey LLP anticipate providing further updates on Bill 88’s status after it has undergone its second and third readings. Assuming that Bill 88 received Royal Assent, employers are encouraged to seek legal counsel when drafting their electronic monitoring policies to ensure they are compliant with the ESA. The lawyers at Heeney Vokey LLP would be more than happy to assist with this.