Legal

May 10, 2023 Published by Toronto and Area Chapter - By Paola Beci Gjata, John De Vellis, Deborah Howden

Monitor This

From the Spring 2023 issue of CCI Toronto Condovoice Magazine.

New Electronic Monitoring Legislation For Ontario Workers

In April 2022, the Ontario government amended the Employment Standards Act (ESA) to include a new part dealing with electronic monitoring of employees. Though the law applies only to employers with 25 or more employees, which would exclude most condominium corporations, the law still has important implications for condominiums.

The new law, part of Bill 88, Working for Workers Act, 2022, requires that all employers in Ontario who employ 25 or more employees adopt a written electronic monitoring policy. Those employers are now required to disclose whether they electronically monitor their employees, as well as how, when and why the monitoring will occur.

The new law will likely apply to most property management companies and other service providers such as security/concierge, cleaning and landscaping contractors.

What is Electronic Monitoring?
The new law does not define electronic monitoring. However, the Ontario Ministry of Labour’s Written Policy on Electronic Monitoring of Employees states that electronic monitoring includes “all forms of employee monitoring that is done electronically” and includes examples, such as where an employer:

• uses GPS to track the movement of an employee’s delivery vehicle;
• uses an electronic sensor to track how quickly employees scan items at a grocery store check-out; and
• tracks the websites that employees visit during working hours

The above list is not exhaustive. While we generally think of electronic monitoring to include using electronic devices to track employees’ movements or activities, it is possible that video surveillance will also be found to be included in the definition.

Furthermore, the Ministry guidelines state that the activities required to be included in the employer’s policy are not limited to devices or other electronic equipment issued by the employer or electronic monitoring that happens while employees are at the workplace. For example, the Ministry states that New Electronic Monitoring Legislation for Ontario Workers “if the employer is electronically monitoring the employee through the employee’s own personal computer that is used for work purposes, the policy must capture that. It applies equally where the employee works from home, at the employer’s workplace, or under a hybrid “workplace/home” model.”

Even if the employer does not electronically monitor employees, the employer is still required to have a policy.

What is the policy required to contain? Section 41.1.1 (2) of the ESA now requires that the written policy must state:

1. Whether the employer electronically monitors employees and if so,
   i. a description of how and in what circumstances the employer may electronically monitor employees, and
   ii. the purposes for which information obtained through elec tronic monitoring may be used by the employer.
2. The date the policy was prepared and the date any changes were made to the policy.
3. Such other information as may be prescribed.

The Ministry of Labour Policy adds that a policy should also specify whether the electronic monitoring will be done on devices or other electronic equipment issued by the employer and if and when electronic monitoring will happen while employees are in the workplace.

What Does this Mean for Condominiums?
Condominium corporations are likely not directly affected by the new law as they generally do not employ more than 25 employees.

However, condominium corporations often contract for services with employers who do employ more than 25 employees. Those employers, whose employees may regularly work on the condominium’s premises, will need to have in place the policies described above. These employees are referred to as “assignment employees”.

The Ministry of Labour’s Policy states that assignment employees designated to another site must still be covered by the employer’s policy. However, employers need not have the same policy for all employees. This means that, condominium corporations could, if they choose, implement a policy of their own and require all service providers to adopt that policy for any employees working on their site. That way, the condominium corporation ensures it has a uniform policy for all on-site assignment employees that is specifically tailored to that corporation’s physical infrastructure and overall requirements.

More importantly, the new law is part of a general trend towards greater concern over privacy rights in the face of advancing technology. As technological advances make it ever easier to monitor employees and even residents, the potential for abuse of the technology rises as well. The law, both legislative and judge made (common law), will continue to evolve to strike a balance between the right to use technology and the privacy rights of those affected by it. Condominium corporations would be wise to ensure that they and their service providers act reasonably in their use of technology so that they do not inadvertently fall on the wrong side of the law.