Electronic monitoring policy may have an unintended consequence

A recently enacted requirement that Ontario employers draft and maintain a written policy detailing the electronic monitoring of employees accomplishes very little, though it may lead to one unexpected result.

In April, Bill 88, Working for Workers Act updated the Employment Standards Act, 2000 by adding language to protect workers from employers that track their use of electronic devices. Companies that employ 25 or more people were given a deadline of Oct. 11 to draw up a “transparent” policy, describing:

• how and in what circumstances that monitoring occurs; and
• the purposes for which the information obtained through the monitoring may be used.

A written policy is to be distributed to all employees and anyone else who work for that firm, such as those on contract or hired through temporary work agencies. 

While this policy seems fair and sensible on the surface, I doubt it will make much difference in many workplaces. In fact, I know that several employers did not meet the Oct. 11 deadline to have this policy in place. Why would they, since it seems there is really no penalty for failing to comply with this legislation?

A new form of constructive dismissal? 

Many of my peers in the employment bar have already noted how ineffectual this legislation is. But there is one point that I don’t believe anyone else has yet raised. And, that is that, since the requirement to have an electronic monitoring policy is part of the Employment Standards Act, it could be argued this is now part of the contract between employer and employee, with certain consequences.

Since an employee has a contractual right to an electronic monitoring policy, an employer breaches that provision in the contract by not enacting one.  If so, it might mean the employee can claim they are being constructively dismissed, since the terms of their contract are no longer being adhered to.

If there is such a case in the future, it will be interesting to see whether a court considers that breach so fundamental as this exists such that an employee can successfully claim they were constructively dismissed.  Some employees will no doubt be upset to learn that their employer is monitoring their work without telling them.

Unclear definition of electronic monitoring

Bill 88 does not effectively define electronic monitoring. It gives examples of computer and cellphone use, as well as GPS trackers in company vehicles. When Bill 88 was introduced in April, Ontario’s Labour Minister said the legislation’s wording was “deliberately broad” to capture a wide range of electronic monitoring practices, giving the example of sensors that track how quickly a cashier scans items at the grocery store or others that count the keystrokes of office workers. 

But what will happen if it can be shown that an employee visited non-work-related websites during work hours? Will they be disciplined for a “crime” that we are all probably guilty of? It does happen. 

I fear that any remote monitoring of an employee can fail to paint the full picture of how well they are working. Just because an employer has a policy about monitoring that does not mean the monitoring is justified.

No mechanism to object to being monitored 

Bill 88 suggests that employers have no obligation to restrict their monitoring of employees in the face of an objection. A primer on the policy released by the Ontario government notes employees are limited in what they can file a complaint about with respect to the employer’s written policy on electronic monitoring.  

“A complaint can only be made to the ministry, or be investigated by an employment standards officer, where there is an alleged contravention of the employer’s obligation to provide a copy of the written policy within the required timeframe,” it reads. “A complaint alleging any other contravention of the policy on electronic monitoring of employee provisions cannot be made, or be investigated by, an employment standards officer.” 

The government document also touts the role of employment lawyers, as it notes, “Although there are limitations on what an employee can file a complaint about or have investigated by the ministry, an employer may wish to seek legal advice about whether its policy would create any entitlements that an employee could enforce outside of the ESA.” 

Electronic monitoring is here to stay

As more people work remotely, it is easy to see why employers are pursuing various forms of electronic monitoring. The Ontario government is reacting to that, with the Labour Minister describing the policy as a “first step” and the first of its kind in Canada. 

As the Ontario government notes, “The COVID-19 pandemic initiated the largest shift to remote work in history with 32 percent of Canadians aged 15 to 69 working from home in January 2021, compared to just four percent in 2016. At the same time, technologies available for businesses to monitor their employees has risen over the last decade as well.” 

I agree this is just a first step and more meaningful legislation may be presented in the future. Until then, I expect many employers will ignore this electronic monitoring policy, in spite of the legitimate privacy concerns of employees.  They may wind up facing lawsuits, but at this point, that is unclear.

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