Ontario has taken the lead in terms of enhancing employer transparency in the workplace and ensuring that workers are able to disconnect from their work. Now that employers with 25 or more employees (as of January 1, 2022) must have a Disconnect From Work Policy, it’s time for employers to calendar more Covid-driven workplace requirements. This same employer group must have an Electronic Monitoring Policy prepared by October 11, 2022, and rolled out within 30 days, by November 10, 2022. These are both policies that employees are actually reading, so it’s worth the advance planning by employers.
Bill 88, the Working for Workers Act 2022 became law in April and requires employers to be transparent about how they monitor their employees’ use of devices such as computers, cell phones and GPSs.
What Can Employers Monitor?
Employers can use monitoring programs that track the websites that employees visit (even when in private browsing mode), apps they’re using, inter-office chat groups, work email, work calendars and social media activity, as well as the amount of time spent doing each of these. So it’s probably safest for an employee to assume that their “inflatable SUP board” query, turned lengthy Tofino tourism rabbit hole, is viewable if the employer has the time and inclination to look for it. Some programs also allow employers to count keystrokes, read what’s typed and record conversations and video using a computer’s microphone and webcam. Gulp!
Perhaps less surprising is that it is permissible for employers to monitor social media accounts such as LinkedIn, Twitter, Instagram, Facebook and other similar social media platforms to ensure that an employee’s content does not negatively impact the employer’s reputation. (This type of monitoring might already be addressed in an employer’s Social Media Policy).
The reality is that most employers are busy running their business and are not bothering with these more intrusive electronic monitoring measures. However, if needed, employers are permitted to monitor to confirm an employee’s work and whereabouts, and whether they may be doing something that violates company policy or requires further investigation. The new legislation does not increase employee privacy rights. Rather, it creates an employer obligation of transparency: employers must now outline what electronic monitoring will occur and how the information may be used.
As always, to reduce the risk of constructive dismissal or privacy-related claims, employers need to ensure that their monitoring is reasonable under the circumstances and needed for employment-related purposes (e.g. workplace safety and security, protection of confidential and proprietary information, attendance and performance management, etc.). To meet transparency requirements, the ‘what, ‘how’ and ‘why’ of electronic monitoring practices should be set out in the Electronic Monitoring Policy.
At a minimum, an Electronic Monitoring Policy must set out:
- Whether the employer monitors employees’ electronic devices;
- How and in what circumstances the employer may monitor employees;
- The purposes for which information obtained through electronic monitoring may be used by the employer; and
- The date the employer prepared the policy and, if updated, the date of any policy changes.
As with Disconnecting From Work policies, an advance internal assessment of past practices, pain points and monitoring-related issues (if any) is a valuable employer exercise before creating an Electronic Monitoring Policy appropriate for their particular workplace.
If you would like help drafting an Electronic Monitoring Policy or have any other workplace law questions, get in touch.