Analyzing Ontario’s new legislation on monitoring employees

Ontario has been a hotbed for new and modernized employment legislation, designed to meet the realities of a post-pandemic world and changing economy. The “right to disconnect” provisions implemented in June 2022, and the recently announced The Digital Platform Workers’ Rights Act which focuses on increased rights and protections for gig workers, are just some examples.

Bill 88, better known as the Working for Workers Act 2022, introduces new regulations that target Ontario employers who are engaged in surveillance or electronic monitoring of their employees. The goal is to specify what types of monitoring, and what purposes for monitoring, are acceptable.

What is Bill 88?

The new legislation amounts to another round of amendments to the Employment Standards Act.

The law applies to businesses with 25 or more workers and requires them to have a written policy on what they’re tracking, and how they are monitoring their employees' activities through company software and hardware, and the purpose of collecting the information. Generally, they are private sector companies, but the public sector will fall into it as well.

Employers tracking their employees is not a novel concept.

They’ve always had the ability to monitor the network activities of their employees for purposes such as cybersecurity or protecting intellectual property. The ability to track metrics that are directly correlated with one’s core job function, such as monitoring the movement of truckers who are paid by the mile, or the timecard punching of hourly workers, is also not affected.

It’s easier than ever to track individual activities through mobile phones, tablets, and laptops. This has raised questions on the level of acceptable tracking of employee activities by employers. Other questions include: To what degree can you track employee activities without their knowledge? What data can you collect, and how can you use it? What are your disclosure obligations? Where is the line between ensuring productivity and privacy?

Who is affected by Bill 88?

If you’re an employer in Ontario that meets the criteria of 25 or more employees — especially if you have employees working from home or a policy for flexible work — you need to be aware of your obligations and your rights, as well as your employees’.

The ability to electronically monitor employees and collect data has grown as technology has improved. But just because you can doesn’t always mean you should. You should scrutinize whether or not there is a legitimate business case behind why you’re tracking certain data, such as how much time employees spend away from their desks.

Employee groups have made it clear that, especially in an era of flexible work, there’s probably no good reason to track how long someone was in the bathroom or taking a lunch break. It’s even more troubling to use that data to make decisions that impact employment status, promotions, or raises. Most egregious of all would be to monitor their activities without their knowledge or consent.

Employers are, understandably, concerned about flexible work arrangements leading to a decline in productivity. Employees are, naturally, concerned about their rights to privacy and their employers “spying” on them.

How to ensure you’re compliant

The name of the game is transparency and trust.

As we’ve discussed, not all employee monitoring is inherently bad. But it can be perceived as bad if your communication with your employees is unclear or non-existent.

If you have any sort of model that allows for flexible work or working from home, you need clear policies around that. Craft those policies in collaboration with your employees.

Engage in conversations with your staff to define the limits of what monitoring is acceptable. If you’re putting something in an employee’s file, and you’re making a judgment of an employee based on some data you’ve collected, that employee has the right to know why that’s happening and what it is. This can’t be done in secret.

If you’re going to start collecting some data you don’t already collect, talk to your employees about it before you start doing it. Articulate the “why” and be open to their feedback.