Electronic Monitoring Policies May Need to be Monitored
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In a letter addressed to the Standing Committee on Social Policy Chair, Ontario’s Privacy Commissioner called on the provincial government to amend Bill 88, the Working for Workers Act, 2022.

Bill 88 The Working for Workers Act, 2022 – Electronic Monitoring Policies

On February 24, 2022, the Ontario government introduced Bill 88 The Working for Workers Act, 2022 (“Bill 88”). Bill 88 proposes a number of amendments to existing employment legislation, including the requirement for prescribed employers to develop electronic monitoring policies as follows:

  • Ontario’s Employment Standards Act, 2000 (the “ESA”) will be amended to require Ontario employers with 25 or more employees to create an internal electronic monitoring policy, setting out whether the employer electronically monitors 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 information obtained through electronic monitoring may be used by the employer.
  • The policy would also have to explain the purposes for which an employer may use information that it collects through electronic monitoring.
  • Employees would have a right to be provided with a copy of the policy and could complain to the Minister of Labour, Training and Skills Development if their employer failed to provide it to them.

If passed, Ontario will become the first province to require employers to create a policy pertaining to the electronic monitoring of employees.

The current draft of Bill 88 does not define “electronic monitoring”, though the government has indicated in press releases that electronic monitoring may include tracking employee location or activities through various devices, such as computers, cell phones and GPS systems. 

The proposed amendments specify that they do not “affect or limit an employer’s ability to use information obtained through electronic monitoring of its employees”.

Current limitations of Bill 88

According to Patricia Kosseim in her letter to the Standing Committee on Public Safety and Correctional Services, requiring some employers to have and provide copies of their electronic monitoring policies is a good first step to better inform Ontarians about their employers’ monitoring practices as their workplaces become more remote and hybrid. However, as drafted in its current form, Bill 88 has significant limitations. These limitations include:

  • Employees who complain to the Minister on grounds that they did not receive a copy of their employer’s electronic monitoring policy, cannot have their complaint investigated. Employees cannot file a complaint about the contents of the policy or their employer’s non-compliance with the policy.
  • Nothing in the bill would restrict an employer’s ability to use, for any purpose whatsoever, the information collected through this monitoring, and the bill does not provide workers with any protections from overly invasive or unreasonable electronic surveillance by their employers.

In the longer term, argues the Privacy Commissioner, electronic workplace monitoring should be governed by a more comprehensive Ontario privacy law, similar to the one proposed last year in the government’s white paper on Modernizing Privacy in Ontario: Empowering Ontarians and Enabling a Digital Ontario, and similar to existing privacy laws in British Columbia, Alberta and Quebec that already extend privacy protection to employees. Such a law should set out the minimum requirements of employer privacy policies as well as their limits, establish a complaint and investigation mechanism for non-compliance with such policies, and allow employees to seek meaningful redress if they are affected by breaches of those policies.

Until then, says the Privacy Commissioner, “even if Bill 88 does not yet have strong teeth, it should at least be given better eyes, ears, and voice.”

Employers should be required to provide copies of electronic monitoring policies to the Privacy Commissioner

According to the Privacy Commissioner, employers should be required to furnish their office with a copy of their electronic monitoring policies to ensure transparency and protection of the employees’ privacy. As Bill 88 already requires employers to have and retain an electronic monitoring policy, the Privacy Officer submits that requiring employers to submit the policy to their office “would create minimal extra burden” and “this small incremental measure could significantly enhance organizations’ levels of transparency and accountability.” As an independent Officer of the Legislature, the Privacy Commissioner argues that Bill 88 should enable it to examine the policies it receives, identify emerging trends, provide education and best practices, and report to the legislature from time to time on matters relating to the state of privacy and electronic monitoring of Ontario workers. This proposed amendment would lead to a body of knowledge that could help Ontarians, employers, and lawmakers choose a wise path forward amid new technological possibilities and evolving work arrangements.

As the letter specifically states:

At the very least, Bill 88 should make it clear that no other provision of law, contract, or condition of employment may prevent employers and employees covered by the law from sharing, discussing, or consulting on the contents of electronic monitoring policies with my office. Moreover, the bill should explicitly provide that my office may use any general information it receives about electronic monitoring policies for the purpose of reporting to the legislature from time to time. Otherwise, a law meant to bring electronic workplace surveillance practices to light could be frustrated by countervailing attempts to keep them secret.

Baker & Company will continue to monitor Bill 88 as it moves through the legislative process. We will update with respect to important amendments and will continue to advise employers as to what they need to know with respect to electronic monitoring policies.

Contact the employment lawyers at Baker & Company in Toronto for assistance with Electronic Monitoring Policies

Baker & Company regularly works with employers in drafting and reviewing employee workplace policies and manuals. It is vital that these documents be kept up to date to ensure that they comply with all relevant legislation and that an employer’s obligations have been satisfied while also mitigating an employer’s liability and risk. To speak with a lawyer about a workplace policy or an employment law issue contact us online or by phone at 416-777-0100.

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