Monitoring Techniques

Ontario

This has been the focus of legislation designed, at the very least, to advise employees that they are indeed being watched, and in fact, every key stroke is being reviewed.

Ontario has passed amendments to the Employment Standards Act to require every employer ¹ to have a written electronic monitoring policy.

The Ontario statute does not define “electronic monitoring” but it is likely to be regarded as all forms of employee monitoring, which includes contractors, that is effected electronically. This will presumably encompass: ²

1. Productivity software;
2. Software which monitors email, chat boards, websites visited during working hours.
3. GPS software and usage.

The policy is mandated to set out:

1. The means by which the company uses electronic monitoring;
2. The circumstances by which the employer may monitor the workers;
3. The purpose for which the information so reviewed may be used.
4. If the employer does not use such monitoring, the policy is yet still required in which event, it will state that the company does not use such a process.

The Act is a toothless tiger. It also states that nothing in the section prevents an employer from using the data it has recorded, regardless of these provisions receiving compliance.

British Columbia and Alberta

In each of these jurisdictions, privacy legislation deals with the use of such monitoring software in the working environment. Any information collected, used or disclosed by an employer must be reasonable for the purpose of establishing, managing or terminating the employment relationship. While no prior consent is required to this end, the employee must nonetheless be notified before the information is collected. ³

Canada

Federal law requires the consent of the employee before the company may collect, use or disclose an employee’s personal information. The Personal Information Protection and Electronic Documents Act, "PIPEDA", protects the "personal information" of employees. This is defined to be information about an identifiable individual except their name, title, business address and telephone number. Also this law requires employers to limit the personal information to that which is necessary for the purposes identified by the employer.

Quebec

Quebec law mandates that the employer may collect employee personal data only for a “serious and legitimate reason” and further that the worker must be told the reason for the collection of the information and who may have access to this detail. ⁴

Quebec has passed new provisions which became effective September 22, 2023. It is now mandatory to publish on the company website details of the company's privacy policies. The employees must consent to the collection of personal information. The policy document must address:

• The governance of personal information;
• The framework for the retention and disposal of personal information; and
• The procedures for addressing privacy complaints.

The employer must conduct a Privacy Impact Assessment when implementing designing or reconfiguring a process which involves the collection, use and retention of personal information. The company must appoint a  Privacy Officer who may suggest guidelines to protect personal privacy. The PIA will consider the purpose of the personal data, the sensitivity of same, the amount and the distribution of the data.

Right to Disconnect

Ontario requires the employer to have a written policy on the subject of the “right to disconnect”. ⁵ This applies to all companies with 25 or more employees. Ironically, the Act does not mandate any particular safeguards to employees. It simply requires that a policy exist which once again, is useless legislation.

Occupational Health & Safety

Ontario

Ontario's s statute mandates a policy with respect to workplace violence, harassment where it has 6 employees or more. It must review these policies as often as is necessary and as least annually. ⁶ It must also have a policy showing how the policy referenced above with respect to workplace violence is to be implemented. ⁷ This latter policy must include:

Contents

(2) Without limiting the generality of subsection (1), the program shall,

(a) include measures and procedures to control the risks identified in the assessment required under subsection 32.0.3 (1) as likely to expose a worker to physical injury;

(b) include measures and procedures for summoning immediate assistance when workplace violence occurs or is likely to occur;

(c) include measures and procedures for workers to report incidents of workplace violence to the employer or supervisor;

(d) set out how the employer will investigate and deal with incidents or complaints of workplace violence; and

(e) include any prescribed elements.  2009, c. 23, s. 3.

The company must also assess the risks of workplace violence that may possibly arise due to the nature of the workplace and the conditions and type of work performed. The employer must also provide its workers with the contents of this policy including the risk of workplace violence from a person with a history of violent behaviour, where there is an expectation of encountering this person with a history of violence and there is a risk of workplace violence.

The employer must also create a policy outlining how the workplace harassment policy is to be implemented. ⁸ This requires the following:

Contents

(2) Without limiting the generality of subsection (1), the program shall,

(a) include measures and procedures for workers to report incidents of workplace harassment to the employer or supervisor;

(b) include measures and procedures for workers to report incidents of workplace harassment to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser;

(c) set out how incidents or complaints of workplace harassment will be investigated and dealt with;

(d) set out how information obtained about an incident or complaint of workplace harassment, including identifying information about any individuals involved, will not be disclosed unless the disclosure is necessary for the purposes of investigating or taking corrective action with respect to the incident or complaint, or is otherwise required by law;

(e) set out how a worker who has allegedly experienced workplace harassment and the alleged harasser, if he or she is a worker of the employer, will be informed of the results of the investigation and of any corrective action that has been taken or that will be taken as a result of the investigation;

The Act mandates an investigation and the steps to be followed after the investigation is completed. The worker and the alleged harasser must be advised in writing of the results of the investigation and any corrective action to be taken. ⁹

Regulations passed under the Act mandate that the employer provide a basic occupational health and safety awareness training ¹⁰ The training required for the workers and the supervisors is set out in the regulation, which includes advice on the duties of the workers and supervisors.

An issue may arise as a term which allows the employer the right of suspension during the workplace investigation. This question is reviewed here.

Other Jurisdictions

P.E.I. has similar legislation requiring an employer policy on the issue of harassment which must also set out the need to investigate allegations of such conduct. ¹¹

Alberta defines workplace harassment to include sexually inappropriate conduct and mandates an investigation upon receipt of a complaint to this effect. ¹²

B.C. mandates an occupational heath and safety program for all companies with over 50 employees or for a business with over 20 or more workers with one workplace which is determined to create a moderate or high risk or injury, or where an officer determines that such is required. ¹³

Saskatchewan law does the same, ¹⁴ as does the N.W.T. ¹⁵

Manitoba law recognizes that domestic violence and/or sexual harassment may lead to personal leave but does not create an employer obligation to investigate. Upon a complaint made to the director, this person may refuse to investigate where he or she is satisfied that the employer and employee have settled the complaint, which should provide an impetus to investigate and resolve the claim. ¹⁶