Electronic Monitoring of Employees: What you need to know about Bill 88 and its new requirements

As someone who provides legal advice to an employer, and as an employee myself, I have been interested in the implications of Bill 88, now the Working for Workers Act, 2022. This Act introduces a new requirement in the Employment Standards Act that employers have a policy on electronic monitoring.  Accordingly, I decided to participate in the Ontario Bar Association’s program entitled Electronic Monitoring of Employees: What You Need to Know About Bill 88 and its New requirements, which ran on May 5, 2022.

The session was deftly facilitated by Justin P’ng, Fasken Martineau DuMoulin LLP, who was joined by expert panelists Shane Morganstein, Borden Ladner Gervais LLP, Busayo A. Faderin, Monkhouse Law, and Ellie Marshall, Blake, Cassels & Graydon LLP.

The program began with an excellent overview of the new requirement, which applies to employers with 25 or more employees on January 1^st of any year and mandates that employers prepare a policy by March 1^st of that year.  Employers must implement their first policy by October 11, 2022, and must provide the policy to employees within 30 days.  Compliance is an ongoing process.  New employees must receive the policy within 30 days, and temporary agency employees must receive the policy within 24 hours of starting an assignment.  Employers must also distribute any policy changes to employees within 30 days.  In addition, employers must retain versions of policies that are no longer in effect for 3 years.  The policy itself must specifically indicate whether the employer electronically monitors employees.  Employers that do monitor employees must ensure that the policy includes a description of how and in what circumstances they do so.  The policy must also include the purposes for which the information collected is used.