Tech-related amendments to the Employment Standards Act and what they mean for employers

One change involves disclosure requirements around electronic monitoring of employees. Photo credit: Pexels/Thirdman

As I have previously noted, the pandemic has had a significant impact on how and where we work.  

Prior to the pandemic remote work was the exception, not the rule.  

Following employers and employees needing to pivot to remote work during the lockdowns, the reverse became true.  

Now, as we return to the office, remote work for at least two days of the week is a new employee preference many employers are accommodating given ongoing labour shortages.  

In line with the predominance of remote working, the Ontario government on Feb. 28, 2022 under Schedule 2 to Bill 88, Working for Workers Act, 2022 (“Bill 88”), proposed two changes to the Employment Standards Act (ESA) connected to our electronic technology and/or remote work arrangements.  

The first is more of a clarification (likely given recent moves to protect vulnerable employees mischaracterized as “independent contractors”) to ensure it is understood that certain IT and business consultants are to remain treated as non-employees and excluded from the protections of the ESA (as well as any person they perform work for or from whom they receive compensation), if the following three (so far) requirements are met:

• The business or IT consultant provides services through:
  • a corporation of which the consultant is either a director, or a shareholder who is a party to a unanimous shareholder agreement, or
  • a sole proprietorship of which the consultant is the sole proprietor, if the services are provided under a business name of the sole proprietorship that is registered under the Business Names Act.
• There is an agreement for the consultant’s services that sets out when the consultant will be paid and the amount the consultant will be paid, which must be equal to or greater than $60 per hour, excluding bonuses, commissions, expenses and travelling allowances and benefits, or such other amount as may be prescribed, and must be expressed as an hourly rate.
• The consultant is paid the amount set out in the agreement as required by paragraph two.

If passed, Bill 88 proposes that this amendment to the ESA will come into force on Jan. 1, 2023.  

The second is the proposed addition of a new Part XI.1 to the ESA under which all employers with 25 or more employees will be required to have in place a written policy regarding their electronic monitoring of their employees.  

Specifically, to protect the privacy of employees, Ontario would be the first province or territory to introduce legislation requiring employers to tell their workers if and how they are being monitored electronically.  

What Bill 88 doesn’t tell us is its definition of “electronic monitoring”, which I hazard to guess means technologies deployed on corporate networks, personal devices used under “bring your own device” policies, and any work tools with embedded sensors (e.g., telematics).

What are the proposed requirements of such a policy?  There are four so far:

• Employers must determine by January 1 of any year whether they employ 25 or more employees, and if they do, before March 1 of that year, they must have this written policy in place. For the first year after passage of Bill 88, employers will be required to use their employee numbers from the January 1 immediately preceding the passage of Bill 88 and will have six months to implement the policy after the passage of Bill 88.       

 

• The written policy must include (so far) the following information:

• Whether the employer electronically monitors employees and if so, a description of: (a) how, in what circumstances, the employer may electronically monitor employees; and (b) the purposes for which any information obtained may be used by the employer.  

The requirement to disclose the circumstances in which monitoring is employed as well as the proposed uses suggests that such disclosure requirements apply to both routine and non-routine (i.e., as part of an investigation or audit) basis. Employers will want to include in their uses as maintaining the network, investigating misconduct, and supporting the continuity of work. 

• The date the policy was prepared and the date any changes were made to the policy (i.e., tracking of any amendments to the policy).

Of note, Bill 88 does not distinguish between monitoring via software installed on “endpoints” (workstations and handhelds) and other network devices. A best practice is to list all applications regardless of where they are installed on the network without disclosing too much information on their security controls to avoid “threat shifting” tactics that could circumvent existing, known security controls. 

• Employers must provide a copy of the written policy to:

• Each of its current employees within 30 days from: (a) the day they are required to have it in place, or (b) the day changes are made to it.
• New employees within the later of 30 days: (a) of the day the employee becomes an employee, or (b) from the day the employer is required to have this policy in place.

• If they utilize a temporary help agency (THA), assignment employees within 24 hours of starting the assignment, or, within 30 days from the day the employer is required to have the policy in place, whichever is later.

• To retain (or arrange for another person to retain) copies of all versions of this policy for three years after each version ceases to be in effect.

If passed, Bill 88 proposes that this amendment to the ESA will come into force on the day Bill 88 receives Royal Assent, and if passed in its present form will impose modest requirements on employers.  

Why? There is no prescribed limit on electronic monitoring, which is permissible in Ontario absent an express contractual restriction. That being said, employers should revisit their “acceptable use” policies establishing their rules for employee use of their networks and electronic devises and assess whether to combine the two policies or move the privacy provisions from their acceptable use policies to their new electronic monitoring policies. Since the Supreme Court of Canada decision in R v. Cole that recognized a limited employee expectation of privacy, it is recommended that employers list all purposes for which they may require access to network data, including information in user accounts.