On February 24, 2022, the Ontario government announced (the “Announcement”) its plan to introduce legislation that would require Ontario employers to inform their employees if and how they are being monitored electronically. On February 28, 2022, the legislation was introduced as Bill 88, the Working for Workers Act, 2022 (“Bill 88”).

Overview

Bill 88 proposes amending the Employment Standards Act, 2000 (“ESA”) to impose a requirement on employers with 25 or more workers to have a written electronic monitoring policy in place for all employees.

The Announcement states that an employer’s policy must contain information on whether the employer electronically monitors its workers; and if the employer does monitor its workers, a description of how and in what circumstances employees are monitored. This policy would apply to employees working in the workplace, in the field, or at home.

According to the Announcement, the purpose of introducing this legislation is to protect workers’ privacy by requiring employers to be transparent about how they track employees’ use of electronic devices, including computers, cell phones and GPS systems.

If passed, Ontario will be the first province to require employers to create a policy pertaining to the electronic monitoring of employees.

Next Steps and Takeaways for Employers

On March 10, 2022 Bill 88 was Ordered for a Second Reading in Parliament.

If passed, Bill 88 will not affect or limit an employer’s ability to monitor its employees electronically, but as noted, employers will be required to implement a written a policy. In preparation, employers should begin to review their electronic monitoring practices and be prepared to develop a written policy which meets the requirements described above. We will continue to monitor for any developments related to Bill 88 and provide updates once available.

The author would like to acknowledge the support and assistance of Jillian Skinner, articling student at law.