'It's about making sure the employer is upfront about how they're monitoring their employees'
With an Oct. 11 deadline looming for some employers in Ontario, what steps need to be taken to become compliant with the new rules around electronic monitoring?
It begins by answering a couple of key questions to determine whether or not a policy is warranted: do you employ 25 or more employees in Ontario as of Jan. 1, and are you electronically monitoring your workers?
If the answers to these subjects are both no, then not much changes. But if you do meet the workforce threshold, and you regularly keep an eye on employees by some means, then there are tangible areas that need to considered.
“You must also describe how do you electronically monitor employees? In what circumstances do you electronically monitor employees? And then what are the purposes for which you use the information you obtain through that?” says Talia Bregman, partner at Bennett Jones in Toronto.
“If the answer is no, your policy will be very simple and essentially say, ‘As of today’s date, we don’t monitor our employees via electronic means.’ That’s really it.”
In addition, employers need to provide the date the policy document was prepared and whether or not it has been modified, with a new timestamp each time this was done.
While all employees in Ontario have to be covered, the same policy doesn’t have to be issued to the entire workplace, says Addison Leigh, associate at Blaney McMurtry in Toronto.
“Everyone has to be covered under the policy but you can have different versions of the policy to apply to different groups within the employers’ organization, which just makes sense, logistically, in terms of if different groups are monitored differently. The policy can apply for floor workers, but also have a section to apply to people in management — but no one in terms of employees in Ontario are allowed to be exempt from the policy.”
Openness and honesty
While the new rule doesn’t impose many new burdens on employers, providing employees with basic information around the electronic monitoring seems to be the motivation for the government’s decision, she says.
“Basically, what we’ve seen so far is that the policy rationale behind this new law is transparency. It’s not really affecting the rights in terms of what employees are entitled to, it’s about making sure the employer is upfront about how they’re monitoring their employees, if they are.”
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In every case, the size of a policy document will depend on the level of monitoring done at workplaces.
“It’s a very simple policy that basically needs to set out the manner of monitoring, when the monitoring occurs and what the information can be used for,” says Leigh.
Employers are given plenty of leeway in how they want to approach this document, according to Bregman as scant details are provided in the legislation.
“For employers, it’s up to them how detailed they want to be. Do they want to keep it a very simple few paragraphs, a few lines? Or do they want to be a little bit more detailed? Do they want to create a standalone policy? Or do they want to incorporate it into another existing policy that they have?” she says.
Examples of observation
But what exactly is electronic employee monitoring? There are numerous areas under which this might fall, says Leigh.
“For example, if an employer uses GPS tracking to track their delivery drivers, or if there’s a system that records how quickly someone at a grocery store scans items at a checkout — any way that’s electronic that the employer is monitoring something that the employee is doing.”
Other areas such as key card monitoring or recording employee key strokes or websites visited, are also included as examples.
“There’s no there’s no specific definition but any form of electronic monitoring events, and that also would catch is whether it’s on your own workplace devices or with an employee personal cellphone for work-related reasons, somehow tracking what’s on there, then that would be counted too,” says Bregman.
In light of potential privacy concerns, is there anything an employer shouldn’t monitor?
“Video surveillance comes to mind: although an employer can use video cameras to monitor the entrances to its building for safety and security purposes, placing video cameras in the employees’ washrooms would not be appropriate,” she says.
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Once the policy has been written, the law compels the employer to inform employees of it, says Leigh.
“There is an obligation to provide employees with a copy of the written policy, and that’s within 30 days of either the day they’re required to have the policy, which would be 30 days after Oct. 11, or within 30 days of the policy being changed.”
Some employers are including the document with new hires, says Bregman, “which is a good practice on that end and shows the 30-day time frame is met and then also from a compliance perspective.”