Digital Brain
digital brain
digital brain

Pay No Attention to the Blinking Red Light: Employee Monitoring Laws Announced in Ontario

March 3, 2022 Employment Law Bulletin 2 minute read

The Ontario Ministry of Labour has released Bill 88, the Working for Workers Act, 2022. Among other things, this proposed legislation would require employers to adopt disclosure practices related to employee monitoring. Like the recently enacted “right to disconnect” provisions, these changes to the Employment Standards Act (“ESA”) would provide yet another government response to the rise of remote work and its unique dynamics.

The new remote monitoring law would amend Ontario’s ESA to require employers with 25 or more employees to adopt a written policy containing information on whether, how, and in what circumstances the employer monitors employee behavior through electronic devices.[1] The intent of the law is to provide transparency for workers about employer practices, and to protect worker privacy.

Employee monitoring technology can take a variety of forms, including computer monitoring systems (e.g., keystroke or cursor tracking, or screen recording), GPS systems in company vehicles, smartphones, or other devices, or even facial recognition technologies run through computer cameras. Employers may wish to monitor employees to assess productivity, oversee compliance with company policies, or protect intellectual property. As has been reported by media, some employers may even deploy facial recognition technologies to assess employees’ mood in order to monitor workplace mental health.

While new and potentially more privacy-invasive monitoring technologies emerge, businesses should strive to balance their management priorities with the individual privacy rights of their employees. Notably, the Working for Workers Act, 2022 provides that an employer’s ability to use information obtained through electronic monitoring will remain unaffected by its provisions.[2]

The draft legislation indicates that employers will have six months to draft their policies, and the Ministry has stated that it will provide additional guidance on what these policies must contain.[3] Once effected, Ministry of Labour inspectors will enforce the new provisions.

We will continue to monitor these developments.

[1] Bill 88, Working for Workers Act, 2022, s. 41.1.1.
[2] Ibid, s.41.1.1 (7)
[3] Ibid, s.41.1.1 (2)

by Ioana Pantis, Robbie Grant, and Matti Thurlin (Articling Student)

A Cautionary Note

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2022

Insights (5 Posts)

Featured Insight

CSA Publishes Results of Continuous Disclosure Review Program Activities

CSA Staff Notice 51-364 - Continuous Disclosure Review Program Activities for fiscal years ended March 31, 2022 and March 31, 2021.

Read More
Jan 26, 2023
Featured Insight

Canadian Securities Administrators Comment on Disclosure Related to Mineral Projects and Technical Reports

On November 3, 2022, the Canadian Securities Administrators published Staff Notice 51-364 Continuous Disclosure Review Program Activities for 2022 and 2021.

Read More
Jan 24, 2023
Featured Insight

Let Them Roll: Dispute Settlement Panel Rules in Favour of Canada and Mexico on Automotive Rules of Origin and “Roll-Up” Method under CUSMA

Analysis of recent CUSMA panel decision on automotive rules of origin. Use of the roll-up method for core parts was in dispute between Canada, US and Mexico.

Read More
Jan 24, 2023
Featured Insight

Quebec Superior Court Orders That Corporations Must Provide Information to Police – Even Where Data Stored Abroad

The Quebec Superior Court rules the American companies may have to produce documents stored abroad to aid in Canadian criminal investigations.

Read More
Jan 24, 2023
Featured Insight

Equity and Debt Activism – Implications for M&A and Special Situations

Join us on Thursday, March 2nd for a series of engaging discussions with industry experts who will share valuable insights into regulatory and market issues, concerns and trends.

Details
Thursday, March 2, 2023