April 24, 2023
Remote and hybrid working conditions sharply rose during 2020, and that trend has continued for many organizations. In light of the opportunity for various work conditions, the Ontario government put together Bill 88, which specifically addresses electronic monitoring policies and the Digital Platform Workers’ Rights Act.
This legislative compliance requirement, which mandates the creation and updating of employee documentation, might not have posed a substantial challenge to larger corporations with ample resources. Still, small and medium-sized enterprises were equally obligated to update or establish the necessary policies, potentially resulting in a more significant impact on their operations. In this post, we’ll explore Ontario’s electronic monitoring policy in depth and share what you need to know regarding your business.
What is Electronic Monitoring?
Electronic monitoring in the context of business operations refers to various electronic methods used to monitor and track employees’ activity during work hours. This term is not specifically spelled out in Bill 88, but the definition is put together based on the guidelines of the bill.
Examples of Electronic Monitoring
For companies whose staff work remotely, electronic monitoring may involve tracking the websites your employees visit or the emails that come through their inboxes. Alternatively, if your employees use access cards within a company building or travel in company vehicles with a GPS, reviewing that specific information is another form of electronic monitoring.
What is the Electronic Monitoring Policy?
An electronic monitoring policy establishes a framework of guidelines governing the methods employed to monitor employee activities during work hours. As stipulated by Bill 88, it is essential for organizations to have such a policy in place, regardless of whether they actively engage in employee monitoring. This measure aims to promote transparency and define what methods, if any, are used.
When Does the Policy Need to be in Place?
The legislation for electronic monitoring policies was enacted in April 2022. Bill 88 stipulated that affected businesses, defined as those employing 25 or more individuals, were required to establish an electronic monitoring policy by October 11, 2022, to avoid potential fines. Moving forward, any company exceeding 25 employees as of January 1 must implement a policy before March 1 of that same year.
Which Employees are Counted in the 25-employee Threshold?
If your business has a few part-time employees or contract staff, you might question whether to include them in the 25-employee threshold. According to the legislative requirements in Ontario, all individuals employed by a business or businesses within the province, regardless of their workload or hours, need to be accounted for.
What if I have employees in multiple locations?
You are only required to count the number of employees in Ontario to comply with the electronic monitoring policy regulations. If you have staff in multiple locations within Ontario, they all count towards the 25-employee threshold, regardless of where they are located.
For example, consider a scenario where you own boutique stores in Toronto, Barrie, and Gravenhurst, and each location has a total of 10 employees. In this case, your cumulative staff count amounts to 30 employees. This is above the 25-employee minimum, meaning your business is required to establish and maintain an electronic monitoring policy in accordance with the legislative guidelines.
What Must the Policy Contain?
An electronic monitoring policy can look different from business to business. The methods used may depend on the work environment or specific role, but the transparency of communicating the policy with your employees is paramount. Within the policy, you must outline:
- If you use electronic monitoring methods on your employees
- If the answer is yes, it must further outline:
- A clear and detailed declaration that your business electronically monitors employees, including the types of devices and technologies used.
- An explanation of how your business may electronically monitor employees and under what circumstances. This may include monitoring for safety purposes, to ensure compliance with company policies, or as part of an investigation into misconduct or violations of workplace rules.
- A list of potential reasons regarding how the information gathered through electronic monitoring may be used by your business. This may include improving productivity, enhancing safety, protecting company assets, or addressing workplace issues.
- The date your company prepared the policy to ensure that all employees are aware of its existence and can refer to it as needed.
- If any changes are made to the policy, the date of these changes must be present to ensure that employees are aware of any updates or modifications to the policy and to ensure compliance with any legal requirements.
How do I communicate the policy with employees?
Part of the purpose of electronic monitoring policies is to foster a culture of transparency among businesses and their employees. Bill 88 does outline specific details around the communication with staff members to ensure that they are informed about the monitoring practices in place, such that:
- Based on the October 11, 2022, deadline, all employees needed to receive a copy of the policy within 30 days.
- If a new copy is implemented to replace an existing one or any changes are made, employers also have 30 days to provide the new copy to employees.
- All new staff members are entitled to a copy of the policy, which should be given to them within 30 days of their start date.
Depending on the best communication stream for your business, you can share the policy in a hard copy or electronically. If the document is digital, it must be able to be printed.
What are the Consequences of Not Complying?
If you’ve been preoccupied in recent months, aren’t comfortable drafting an electronic monitoring policy yourself, or are simply unaware of Bill 88’s legislation, you may be found to be non-compliant with this law. This carries a first-time fine of $250, multiplied by the number of employees affected.
Beyond financial consequences, non-compliance with legislative requirements can adversely affect an organization’s reputation. Employees may perceive a lack of commitment to compliance as a concern, potentially leading to a loss of respect and trust. Consequently, this may result in employee turnover, causing further detriment to the business and negatively impacting its overall financial performance.
How Do I Create an Electronic Monitoring Policy?
If you are unfamiliar with creating action plan documents, putting together an electronic monitoring policy can be daunting. Using the correct terms, detailing specific methods of monitoring and outlining their potential purpose can be a lot to put together. The first thing to consider is if you meet the criteria and, if so, whether you will be electronically monitoring your employees. Although the law states you must have a policy in place, it does not explicitly require employers to engage in monitoring activities.
From there, the Government of Ontario has put together an employer checklist and recommends the following:
- Your policy must Include all required information (as outlined above)
- The content should cover all employees, although specific details can differ for each role, department or location
- The policy should be in place within the specified timeframe (before March 1 of that year)
- Once completed, providing a copy of the written policy, hardcopy or digital, to all your employees is essential
Navigating the world of labour compliance can be challenging, especially if you don’t have access to a dedicated HR department. At True North, we specialize in policies and diligence. Working with our team, we can help you with the heavy lifting and create an electronic monitoring policy that meets all legal requirements. Understanding how your business operates is our top priority so that we can write and implement a document that makes sense for you and your team. Contact us to learn more about how we can help you stay compliant with Bill 88!