Electronic Monitoring Of Employees Policy ' A Bit Of Guidance From The Government

• Published date: 30 September 2022
• Subject Matter: Employment and HR, Privacy, Employee Rights/ Labour Relations, Privacy Protection
• Law Firm: Lerners
• Author: Ms Alysia Christiaen

The deadline by which businesses with 25 or more employees are to have their electronic monitoring policies in place is fast-approaching. Policies are to be drafted and circulated by October 11, 2022. A recent update to the Ontario government's Guide to the Employment Standards Act (ESA) included information specific to the electronic monitoring policy. While some guidance has finally been offered to employers, a glaring hole remains: there is no definition of "electronic monitoring."

HOW TO DETERMINE IF YOUR BUSINESS NEEDS A POLICY?

On January 1 of each year, if a company has 25 or more employees, it needs to have an electronic monitoring of employees policy. The policy must be in place by March 1 of that year. The government offered the following guidance on how to count the number of employees a business has:

• Full-time v Part-time. Count the number of individual employees, not the number of "full-time" employees. The number of hours that an employee works is irrelevant.
• Multiple Locations. All employees at each location in Ontario must be included in the calculation of employees.
• Related Employers. If two or more employers are treated as one employer, then all employees employed in Ontario are to be included in the count.
• Employees to Include in the Count. The guide provides a list of employees that are to be included in the count homeworkers, probationary employees, some trainees, officers of a corporation who perform work or supply services for wages employees on definite term or specific task contracts of any length, employees who are on lay-off, so long as the employment relationship has not been terminated and/or severed, employees who are on a leave of absence, employees who are on strike or who are locked-out, and employees who are exempt from the application of all or part(s) of the ESA. (Despite not being covered by the electronic monitoring requirements of the ESA, exempt employees are included in the count to determine whether such a policy is required.)
• Assignment Employees. Assignment employees are included in the count for the temporary help agency and not the business for which they are working for a period of time.
• Number of Employees Changes in the Year. The date on which an employer has to count employees for the purpose of having an electronic monitoring policy is January 1. If the number of employees fluctuates throughout the year, it has no impact on the requirement to have a policy
  • If a business employs 28 employees on...