New Guidance on Ontario’s Workplace Monitoring Disclosure Regime

On April 11, the Working For Workers Act, 2022 received Royal Assent in the legislature and subsequently amended the Employment Standards Act, 2000 (“ESA”) to require employers with 25 or more employees to have a written policy containing information on whether, how, and in what circumstances the employer monitors employee behaviour through electronic devices. The policy deadline was October 11, 2022.

While the ESA does not define “electronic monitoring,” the Ministry has confirmed that it includes all forms of employee monitoring done electronically. This would include computer monitoring systems (e.g., keystroke or cursor tracking, screen recording, website tracking), GPS tracking in company vehicles, smartphones or other devices, emails and online chats, and facial recognition technology run through computer cameras or video surveillance.

An employer must count all employees across all its locations in Ontario, regardless of the number of hours they work. The Ministry has confirmed that this would include part-time and casual workers, as well as probationary employees, employees who are laid off or on a leave of absence, and trainees.

The Ontario Ministry of Labour (the “Ministry”) has provided some helpful guidance, including policy requirements, to assist employers with understanding their responsibilities under the new legislation.