Cambridge Chamber of Commerce

On April 11, 2022, Bill 88 – Ontario’s Working for Workers Act, 2022 – received Royal Assent and became law.  We reviewed this new legislative change with local legal experts, Hina Ghaus and Tushar Anandasagar, of Gowling WLG (Canada) LLP.

 

“We discussed the proposed legislation, with a specific focus on workplace electronic monitoring policies, in a previous blog post.  At that stage, the legislation was still in draft form.  For the final version, we wanted to provide the members with an up-to-date overview of what actually applies,” says Tushar.

 

Here are the key takeaways:

 

Employers: “Electronic Monitoring Policy”

 

Bill 88 introduced new provisions into the Employment Standards Act, 2000 (“ESA”), which require all employers who employ 25 or more employees to have a written policy in place on electronic monitoring of employees.

 

The electronic monitoring policy must include:

  • information on whether the employer electronically monitors employees and if so,
  • a description of how and in what circumstances the employer may electronically monitor employees,
  • the purposes for which information obtained through electronic monitoring may be used by the employer;
  • the date the policy was prepared and the date any changes were made to the policy; as well as
  • any other information as may be prescribed by law in the future.

According to Hina, time is of the essence: “There are 3 key dates to keep in mind for the first year.  Employers who had 25 or more employees on January 1, 2022 must have this policy in place by October 11, 2022, and provide a written copy of the policy to existing employees by November 10, 2022.  In subsequent years, any employer who has 25 or more employees on January 1 of any year, must have a policy in place by March 1 of that year.”

 

“There are more requirements to consider regarding ongoing compliance, including when you will need to deliver a copy of the policy (once finalized) to your staff,” says Tushar.  “Employers must provide a written copy of the policy to all employees by no later than 30 days from the day the employer is required to have the policy in place, or for new employees, within 30 days of their joining date.”

 

There are additional wrinkles to consider for those businesses that utilize temporary help agency employees.  “For “assignment employees” (the ESA term for temporary help agency employees), they need to receive a copy of the policy within 24 hours of the start of the assignment, or within 30 days from the day the employer is required to have the policy in place, whichever is later,” says Hina.

 

During our last overview of the draft Bill 88, there was ongoing debate about this legislation and how it would be enforced.

 

According to Tushar, the “enforcement” mechanisms under the ESA are quite limited:  “Yes – the ESA contains several provisions which allow an employee to file a ‘complaint’ about this policy compliance requirement – but the grounds upon which the complaint can be based are very limited.  For instance, the ESA allows an employee to complain about whether a copy of the policy was provided in a timely manner, or not.”

 

Notably, there is no prohibition under the ESA which prevents an employer from engaging in electronic monitoring of one form or another. In fact, it is explicitly stated in the legislation that these requirements do not affect or limit an employer’s ability to use the information obtained through electronic monitoring of employees.

 

“As expected, there is nothing under Bill 88 which restricts an employer’s ability to monitor, or use the information obtained through monitoring, nor does it create a statutory “right to privacy” for employees,” says Hina. “There is no actual definition of ‘electronic monitoring’ under the legislation, although it is still early, and we could see clarification of this aspect of the law as we get closer to October 11, 2022.”

 

Tushar points out that the standard rules may not affect all employers the same way and pointed to the unique context of unionized workplaces.

 

“The ESA is only part of the picture. For many workplaces – notably unionized settings, a notable caveat applies where the parties to a collective agreement have negotiated language that permits or prohibits certain forms of electronic monitoring (in some cases referred to as a ‘surveillance’ clause),” he says.  “There is an extensive body of unionized case law that deals with the “reasonableness” of employee monitoring / surveillance – and that needs to be balanced with this new policy requirement.  We are actively assisting union sector employers with managing this issue.”

 

Finally, Hina notes that Bill 88 was just passed, and more is likely to be forthcoming from the province as we near October 11.

 

“We don’t have any codes of practice, guidelines or regulations (yet) on this new legislative requirement.  As with the ‘Disconnecting from Work’ policy compliance requirement, we may see the province publishing more on this issue over the coming months,” she says.

 

For the time being, Hina, Tushar and the rest of the team at Gowling WLG continue to diligently sift through the latest legislative changes. For further information, please feel free to contact Tushar at [email protected] and/or Hina at [email protected].

add a comment
Subscribe to this Blog Like on Facebook Tweet this! Share on LinkedIn

Contributors

Blog Contributor Portrait
Brian Rodnick
190
March 17, 2024
show Brian 's posts
Blog Contributor Portrait
Greg Durocher
41
July 28, 2023
show Greg's posts
Blog Contributor Portrait
Canadian Chamber of Commerce
24
January 29, 2021
show Canadian Chamber's posts
Blog Contributor Portrait
Cambridge Chamber
2
March 27, 2020
show Cambridge 's posts

Latest Posts

Show All Recent Posts

Archive

Tags

Everything Manufacturing Cambridge Events Spectrum New Members Taxes Region of Waterloo The Chamber Property Taxes Government Waste Cambridge Chamber of Commerce Networking Success Di Pietro Ontario Chamber of Commerce Greg Durocher Scott Bridger Food Blog Canada Ontario Cambridge Memorial Hospital Business After Hours Discounts Member Benefits Affinity Program Web Development Visa, MasterCard, Debit Big Bold Ideas Politics Elections Municipal Provincial NDP Liberals PC Vote Majority Christmas Homeless Leadership Oil Sands Environment Rail Pipelines Keystone Canadian Oil Canadian Chamber of Commerce Small Business Next Generation Cyber Security Millennials Energy Trump Washington Polls US Congress Bresiteers Trade NAFTA Europe Economy Growth Export Minimum Wage 15 dollars Bill 148 Cost Burdens Loss of Jobs Investing Finance Canada Capital Gains Exemption Tax Proposal MIddle Class Member of Parliment Unfair Changes Small Business Tax Fairness COVID-19 Mental Health Self-isolation Social Distancing Ways to Wellbeing Education Conestoga College Online Training Business Owners Personal Growth Communicate Young Professionals Workplace Communication Stress Emotionally and Physically Animals Pets Lockdown CEWS Employee Relief Employee Benefit Cambridge 50th Anniversary Celebrating Cambridge ToBigToIgnore Small Business Week Support Local Buy Local Business Support Waterloo Kitchener YouGottaShopHereWR Responsibility Culture Workplace Antiracist Inclusion Diversity Racism Federal Election Services Autonmy Professional Salary Wages CERB Workers Jobs Guidelines Health and Safety Etiquette Fun Inperson Members Golf Tournament GolfClassic Business Business Trends Home and Garden Garden Pools Home Improvements Backyarding Renos Summer Airlines Business Travel Bad Reviews Reviews Consumers Competition Bureau Dining Out Expert Advice Outdoors Economicrecovery BBQ Vaccines Community vaccinations Conferences Virtual Visitors Sportsandrecreation Spinoff Screening Kits Tourism Trends Productivity Engagement Remote working EmploymentStandardsAct Employees Employers Policies Employment Contracts Legal Public Health Virtual Ceremonies SMEs Health Canada Prevention Rapid Screening Health Entrepreneurs Building social networks Storytelling Video The She-Covery Project Child Care Workplaces Contact Tracing Time Management Pre-Budget Modernization Canada Emergency Rent Subsidy (CERS) Budget Ontario’s Action Plan: Protect, Support, Recover Federal Government Hotels and Restaurants Alcohol Tax Freezethealcoholtax Canadian Destinations Travel Grow your business Sales and Marketing Digital Restructure Financing Structural Regulatory Alignment Technological Hardware Digital Modernization RAP (Recovery Activiation Program) Support business strong economy Shop Cambridge Shop Local #CanadaUnited Domestic Abuse Family Funerals Weddings Counselling Anxiety Pandemic Getting Back to Work UV disinfection systems Disinfection Systems