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Ontario government introduces digital rights for employees

Further digital rights for employees: Policies on electronic monitoring

Over the last two years, the global COVID-19 pandemic has facilitated significant changes to the way Canadians work. Workplaces have transformed from in person settings to digital, remote settings at an unprecedented rate. As the way we work changes, so too must the law. This is a daunting task, as changes to workplaces are advancing at lightning speeds.

The Government of Ontario has tried to keep up. In November 2021, the Ontario legislature passed Bill 27, the Working for Workers Act, 2021, which requires employers to introduce policies regarding the “right to disconnect”. This was vital, as according to Toronto employment lawyer Stacey Ball, employees working remotely due to COVID-19 could otherwise find themselves expected to reply to emails or answer phone calls at all times of the day, even late into the evening. Thankfully, the Ontario government did not stop there. On February 28, 2022, the Ontario government introduced further legislation: Bill 88, the Working for Workers Act, 2022.

Policies on electronic monitoring

Bill 88, like Bill 27 before it, is informed by the current COVID-19 era workplace. If passed, Bill 88 would amend the Employment Standards Act, 2000 to introduce new employee rights and protections. Specifically, Bill 88 would require employers with more than 25 employees to introduce written policies on electronic monitoring.

These policies are required to contain the following information:

• Whether the employer electronically monitors employees and if so,
  1. a description of how and in what circumstances the employer may electronically monitor employees, and
  2. 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.
• Such other information as may be prescribed.

Bill 88 does not define “electronic monitoring”, so it may have a broad scope. For example, “electronic monitoring” might include video surveillance (possibly via laptop webcam), GPS tracking in cellphones or company vehicles, and tracking programs on computers, which could potentially have the ability to track the time employees spend on certain websites or software. Such tracking software could be so specific as to track every key an employee types on their keyboard. With workplaces moving into the digital world, these forms of electronic monitoring pose a serious risk to employees of being micromanaged. Further, as many employees work from home, their privacy is also an issue. If passed, Bill 88 and its requirement of electronic monitoring policies could go a long way in protecting employees working remotely through the digital world.

Digital Platform Workers’ Rights Act, 2022

Apart from introducing electronic monitoring policies in the workplace, Bill 88 would also enact the Digital Platform Workers’ Rights Act, 2022. This Act, among other things, would establish minimum rights and protections for workers performing “digital platform work”. “Digital platform work” is defined to include “ride share, delivery, courier or other prescribed services by workers who are offered work assignments by an operator through the use of a digital platform.” This would likely capture those working within the “gig economy” who make a living using apps such as UBER. The rights and protections being afforded to such workers under this new Act include:

• The right to information;
• The right to minimum wage (currently set at $15 under the Employment Standards Act, 2000);
• The right to a recurring pay period and pay day;
• The right to amounts earned by the worker, including tips;
• The right to notice of removal (i.e., from the digital platform);
• The right to have disputes between the worker and the digital platform’s operator resolved in the Province of Ontario; and
• The right to be free from reprisal.

The Act, however, avoids classifying such workers as “employees”. These rights apply to such workers regardless of their employment status. Nevertheless, these should be a welcome sight to any individual currently earning their income in the digital gig economy.

A welcome sight

The Ontario Government has shown their willingness, through the enactment of Bill 27 and the introduction of Bill 88, to adapt to the ever-changing workplace reality necessitated by the global COVID-19 pandemic. Of course, many employees in 2022 have returned to in person workplace settings, which could be good considering the fact that since the “work-from-home” model was implemented, the divorce rates have increased, according to Musson Law, however that does not mean these new protections will go to waste. It remains to be seen how much of our work will take place in person, online, or through a mixture of both. As a side effect of the. Regardless of whether your workplace is physical or digital, more protections for workers are always a welcome sight.