Bill 88 has been receiving a lot of media attention for the aspects related to digital platform workers and the proposed creation of the Digital Platform Workers’ Rights Act, 2022. While this will impact many workers, it will not have an impact on most employers. Employers do need to pay attention to other aspects of the Bill, which propose new changes to the Ontario Employment Standards Act, 2000. Chief among these is a new requirement for employers with 25 employees or more to have a written policy with respect to electronic monitoring of employees.
Electronic Monitoring of Employees
If passed, Bill 88 will require that employers who employ 25 employees or more, on January 1 of any given year, have a written policy with respect to the electronic monitoring of employees. The wording of the Bill suggests that even employers who do not electronically monitor employees will be required to have a written policy, provided they employ 25 employees or more on January 1 of any given year.
While a policy is required, the purpose is to let employees know they are being monitored, versus to restrict what an employer might do with that monitoring information.
What Will the Policy Require?
The Policy will be required to contain the following information:
- Whether the employer electronically monitors employees and if so,
- a description of how and in what circumstances the employer may electronically monitor employees, and
- the purposes for which information obtained through electronic monitoring may be used by the employer.
- The date the policy was prepared and the date any changes were made to the policy.
- Such other information as may be prescribed.
Employees will need to be provided with a copy of the policy within 30 days from the day the employer is required to have the policy in place or within 30 days of the changes to the policy, if changes are made. New employees will need to be provided with the policy within 30 days of their becoming an employee.
When Do Employers Need to Have an Electronic Monitoring Policy in Place?
This policy will need to be in place six months after the Bill receives Royal Assent. As of the date of this post, this has not happened yet. However, our expectation is that the Bill will pass soon and therefore this policy will need to be in place by August 2022. Thereafter employers who have 25 employees or more on January 1 of any given year will need to have a policy in place by March 1 of that same year. The headcount is taken on January 1, so note that even if an employer had fewer than 25 employees later in the year the policy would still be required.