Newsletter Vol 2-Labour & Employment

Electronic Monitoring Policy      

This update pertains to the requirement for employers with 25 or more employees to have a written policy addressing electronic monitoring of their employees. This requirement arises out of amendments included in Bill 88, Working for Workers Act, 2022.

Employee Count

Any employer that employed at least 25 employees in Ontario on January 1, 2022 is required to prepare and implement a written Electronic Monitoring Policy by October 11, 2022. Be aware that employees that work from home, are on a leave of absence, laid off, fixed-term, and who may be exempt from all or parts of the ESA will be included in the count. Temporary employees from a temporary help agency are not included in the count.

If an employer does not have 25 employees on January 1, 2022, they will not be required to implement a policy. However, if the employer does have 25 employees on January 1, 2023, it will then be required to implement the policy. Likewise, if the employee count decreases below 25 on January 1, 2023, it will no longer be required to maintain the policy.

Requirements of the policy

The policy must provide:

1. a statement as to whether the employer in engages in electronic monitoring of employees;
2. a description of how and in what circumstances the employer may electronically monitor employees;
3. the purposes for which the information obtained through electronic monitoring may be used by the employer;
4. the date the policy was prepared; and
5. the date any changes were made to the policy.

The legislation captures the monitoring of all workplace devices or equipment, including company computers and phones. If employers track internet usage or monitor their employees with surveillance cameras or electronic sensors, or track company vehicles using GPS trackers, then employees must be informed in writing.

Timing

An employer must provide a copy of the policy within 30 calendar days from the implementation date, or from the date the policy is amended. New employees must receive a copy within 30 calendar days of their start date.

Things to Remember

Bill 88 does not create a right for employees to be free from electronic monitoring, nor does it serve to limit the uses an employer may make of information obtained through electronic monitoring.

Below is a handy checklist for employers:

1. Determine whether you are required to provide employees with a written policy.  If you employ fewer than 25 employees as of January 1^st, then you are exempt.
2. Ensure the policy complies with section 41.1.1 of the ESA.
3. Provide a written copy to all employees within the required timeframe.
4. If there are changes, retain a copy of an old policy for at least three years after it no longer applies.
5. On January 1^st of each year count the number of your employees.  If you have 25 or more, then you must provide them with a written policy by March 1^st.

If you have not yet drafted an Electronic Monitoring Policy, contact the Workplace Law Group of SimpsonWigle Law.

Competition Act Updates

On June 23, 2022, Bill C-19 received Royal Assent. Among other things, Bill C-19 amends the Competition Act in respect of wage fixing agreements and non-poaching agreements.

If two or more unaffiliated employers make an agreement to fix wages, or other terms of employment, or make an agreement not to poach or hire each other’s employees, those employers can be prosecuted criminally, and if convicted, liable for imprisonment of up to 14 years, and/or a monetary fine.

This provision will come into effect on June 23, 2023.

If you have an arrangement, formal or informal, with another unaffiliated business to not hire each other’s employees, or to align employee compensation, such arrangement must be ended prior to June 23, 2023.

If you suspect that your business may have such an agreement in place, it is important that you seek legal advice right away as there may be legal defences available to the business.