On February 28, 2022, Bill 88, Working for Workers Act, 2022, was introduced and received first reading in the Ontario Legislature. Since that time, Bill 88 made its way to the Standing Committee on Social Policy, underwent second reading debates, and landed back in the Standing Committee on Social Policy. Where are we now? Bill 88 was ordered for third reading on April 4, 2022, and entered into third reading on April 5, 2022. We are waiting to see if things ultimately progress to Royal Assent.
While there are several important proposed provisions set out in Bill 88, I would like to focus on Schedule 2 for a moment. It proposes to amend the Employment Standards Act by adding a new Part XI.1, a provision requiring employers that employ 25 or more employees to have a written policy with respect to electronic monitoring of employees.
The following are highlights of the proposed electronic surveillance provisions:
- The phrase, “electronic monitoring” is not defined. This phrase likely includes various sorts of electronic surveillance technologies, such as the monitoring of corporate systems, employee digital devices (corporate and personal), and location surveillance (GPS, telematics, video).
- There must be a written policy. Employers that, on January 1 of any year, employ 25 or more employees must, before March 1 of that year, ensure that they have a written policy in place for all employees with respect to electronic monitoring of employees.
- There are a few things that must be included in the policy. First, employers must say whether they electronically monitor employees. Second, if they do electronically monitor employees, they must provide (i) a description of how and in what circumstances they electronically monitor employees, and (ii) the purposes for which information obtained through electronic monitoring may be used. Third, there must also be an inclusion of the date that the policy was prepared and the date any changes were made to the policy. Fourth, employers must include any other information that may be prescribed.
- Employers need to provide copies of the policy to employees. Employers that must have such a written policy must provide a copy of the policy to each of the employer’s employees within 30 days from the day they are required to have the policy in place or, if an existing policy is changed, within 30 days of the changes being made. New employees must similarly be provided with a copy of the policy. And assignment employees must be provided with a copy of the policy within 24 hours of the start of the assignment or within 30 days from the day the employer is required to have the policy in place, whichever is later.
- There is no limit when it comes to ability to use information. The proposed provisions make it clear that nothing in this section would affect or limit an employer’s ability to use information obtained through electronic monitoring of its employees.
- There must be proper retention of the policy. Employers would have to keep or arrange for some other person to retain copies of every written policy on electronic monitoring required under Part XI.1 for three years after the policy ceases to be in effect.
If passed, Schedule 2 would come into force on the day Bill 88 receives Royal Assent—and employers would have six months after Bill 88 receives Royal Assent to comply with the above requirements.
Why propose these provisions? According to the Ontario government’s announcement, the goal is to require greater transparency and address privacy concerns by requiring employers to establish and share policies with their employees regarding how they are monitoring electronic devices like computers, cell phones and GPS systems.
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