Can an employer access employees’ communication or data without consent?

In Ontario, it may come as a surprise to some that employers have the legal right to monitor their employees’ activities while in the workplace or during the work day for remote models. This includes accessing employees’ communication records and data. As a result, the Ontario government passed Bill 88: Working for Workers Act, 2022 (“Act”) to promote transparency and disclosure. 

 

What is the impact of the Act on electronic monitoring in the workplace?

Before the Act, the practice of electronically monitoring employees was mostly unchecked (except in rare instances e.g. a policy grievance in a unionized environment challenging a monitoring policy). There were no formal requirements on transparency and disclosure. Barring any statutory infringements or human rights violations, an employer had the freedom to employ such practices without informing their employees. Now, with the Act’s amendments to the Employment Standards Act, 2000 (“ESA”), it is still legal to electronically monitor employees, but the practice is now statutorily regulated. 

Employers who wish to engage in electronic monitoring in the workplace must disclose such practices to their employees through a written policy. This rule applies to workplaces of 25 or more employees. A snapshot employee count on January 1 of a given year is used to determine whether this threshold is reached. For example, an employer who retains 25 employees on January 1, 2022, must have a written policy even if the count drops under the threshold later during the year. Conversely, a workplace with under 25 employees on January 1 but more than 25 later in the calendar year will not be required to have a written policy. 

The 25-employee threshold is also used to determine whether an employer must have a written policy on the Right to Disconnect. These changes to the ESA signal a need to extend statutory protections to employees amidst the changing landscape of the workplace. 

 

Further Reading on the Right to Disconnect

• What Is The Right to Disconnect In Ontario?
• Right To Disconnect And Independent Contractors: Explained
• Does Your Workplace Have A Right To Disconnect Policy Yet?

 

What new obligations do employers have under the ESA?

The Act does not grant new privacy rights to employees concerning electronic monitoring. Instead, the written policy requirement is intended to regulate an employer’s use of electronic monitoring by requiring transparency and disclosure. Effective October 11, 2022, employers that meet the threshold must have a written policy informing employees of any electronic monitoring use. The policy must not only disclose how and when the monitoring will take place. To promote transparency, employers must also disclose the purpose of monitoring and collecting employee data. Once these requirements are met, an employer must distribute the written policy to employees and notify them of any amendments.

Why might an employer resort to electronic monitoring?

While it may be unnecessary for specific workplaces, electronic monitoring may be an essential tool for employers.

The widespread adoption of remote or hybrid workplace models is an unprecedented shift in the employment landscape that offers excellent employee flexibility. Competition in the labor market may pressure employers concerned about productivity to adopt similar policies. For these employers, electronic monitoring may be a proactive solution to avoid performance problems. 

Electronic monitoring of employee communication and data may also be used in a reactive sense. For example, a workplace complaint alleging harassment, bullying or an inappropriate workplace relationship may trigger an employer’s duty to investigate and take action under Ontario’s Human Rights Code. In these cases, electronic monitoring may be necessary for an employer to conduct a sufficient investigation. Indeed, electronic monitoring may be essential for protecting employers and employees when used correctly. 

 

Are there any exceptions to the new legislation?

Aside from workplaces with under 25 employees, a written policy may not be required in certain other workplaces, including for example Crown or broader public sector employers. However, as the Act does not grant a new right to privacy, exempt Crown employees are not being deprived of a substantial right. Additionally, Crown employees may report improper use of electronic monitoring by filing a labour standards complaint.

 

How should employers proceed?

While the Ontario government passed the Act on April 11, 2022, employers have a six-month grace period to prepare and draft their monitoring policies. This means that employers which meet the 25-employee threshold will come under the written policy requirement on October 11, 2022. Even if a workplace employee count falls under the required threshold, employers should still consider drafting a written policy if anticipating future growth. When preparing a written policy on electronic monitoring, employers should aim for one that promotes transparency and disclosure.

 

If you are an employer looking to draft a workplace policy, our team of experienced employment and human rights lawyers at Achkar Law can help. Contact us by phone toll-free at +1 (800) 771-7882 or email us at [email protected], and we will be happy to assist.