In-Depth Analysis

Employers’ Advisor September 2022

Articles:

  1. To Track or Not to Track: Your Organization Needs an Electronic Monitoring Policy for That
  2. Kosteckyj v Paramount: Employee had 25 days to Claim Constructive Dismissal
  3. “Quiet Quitting”: Emerging Issues and the Future of Work

To Track or Not to Track: Your Organization Needs an Electronic Monitoring Policy for That

Anthony Kwong

On April 11, 2022, the Government of Ontario passed Bill 88 – the Working for Workers Act, 2022, which, among other things, made amendments to the Employment Standards Act, 2000 (the “ESA”) requiring that all employers employing 25 or more workers must have a written electronic monitoring policy in place.

General Requirements

Employers covered by the ESA who had 25 or more employees on January 1, 2022 must have an electronic monitoring policy in place by October 11, 2022, and must provide a written copy of this 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.

The aforementioned requirements apply to all of the employer’s employees in Ontario. However, the employer is not required to have the same policy for all its employees.

Note that the ESA requirements do not establish a right for employees not to be electronically monitored by their employer, nor do they create any new privacy rights for employees. Instead, the ESA requirements are limited to requiring that employers be transparent about whether and how they monitor their employees electronically.

The Content of the Policy

The policy must state whether or not the employer electronically monitors its employees. “Electronic monitoring” includes all forms of employee monitoring that is done electronically. It is not limited to devices or electronic equipment issued by the employer, and applies whether employees are working in the workplace, at home, or under a hybrid model.

If the employer does not electronically monitor employees, the policy must specifically state this.

If the employer does electronically monitor employees, the policy must include:

  • a description of how and in what circumstances the employer may electronically monitor employees;
  • the purposes for which the 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.

Use of Collected Information

Bill 88 does not affect or limit an employer’s ability to use the information collected as it sees fit. The ESA, as amended by Bill 88 simply requires the employer to state, in its policy, the purposes for which it may use the information collected; it does not limit the employer’s use of the information for the stated purposes. Of course, as always, the employer’s use and accessing of employee information must not afoul of other legislation, such as privacy-related legislation.

Copies of the Policy

Employers must provide a copy of the policy to employees within 30 calendar days of:

  • the day the employer is required to have the policy in place; and
  • the policy being changed (if an existing policy is changed).

Employers must also provide the policy to new employees within 30 calendar days of the later of:

  • the day the employer is required to have the policy in place; and
  • the day the individual becomes an employee of the employer.

Employers must also provide the policy to assignment employees from temporary help agencies assigned to perform work for it by the later of:

  • 24 hours of the start of the assignment; and
  • 30 calendar days from the day the employer is required to have the policy in place.

Employers may provide the policy to employees as:

  • a printed copy;
  • an attachment to an email (if the employee can print a copy); or
  • a link to the document online (if the employee has a reasonable opportunity to access the document and a printer, and knows how to use the computer and printer).

Record-Keeping Requirements

Employers must retain a copy of every electronic monitoring policy required by the ESA for three years after the policy is no longer in effect.

Key Takeaways for Employers

Employers must ensure that they have electronic monitoring policies in place by the required deadlines. Employers must also remember to conduct annual employee counts as of January 1 to determine whether the requirement applies, to provide copies of the policy to employees within the required timelines, and to abide by the record-keeping requirements to ensure continued compliance with the ESA.

Although the electronic monitoring provisions do not create any new privacy rights for employees and employers are permitted to use the collected information for the stated purposes, employers are advised to seek legal advice about whether the content of their policy could result in liability under legislation outside of the ESA, such as privacy legislation.

Kosteckyj v Paramount: Employee had 25 days to Claim Constructive Dismissal

Kritika Sharma

Recently, the Court of Appeal of Alberta, in Kosteckyj v Paramount Resources Ltd, found that an employee acquiesced to significantly reduced compensation by continuing work without raising any concerns for 25 days.

Background

The Plaintiff began working for the Company as a senior integrity engineer in 2013. Effective April 1, 2020, in response to the economic downturn, the Company announced a cost reduction program (“CRP”) that would decrease employees’ base salary by 10%, suspend the 6% RRSP contribution, and delay or cancel the bonus program. There was no express or implied term in the employment contract allowing the Defendant to reduce compensation due to the economic conditions of the oil and gas industry.

The Plaintiff did not communicate any disagreement with the CRP and she continued to work at the same office carrying out the same duties as prior to the implementation of the CRP.

On April 22, 2020, in order to further reduce costs, the Defendant terminated certain employees, including the Plaintiff, on a “without cause” basis.

After the termination, the Plaintiff commenced a claim against the Company and eventually alleged constructive dismissal as a result of the CRP. The Company denied that the Plaintiff was constructively dismissed. Instead, the Defendant maintained that the Plaintiff’s employment was terminated without cause on April 22, 2020 and asserted that pay in lieu of reasonable notice of termination was owed to the Plaintiff in accordance with the reduced compensation that the Plaintiff was earning at the time her termination.

The Decision at Trial

The Court of Queen’s Bench of Alberta (as it was then called) ruled that the Plaintiff was constructively dismissed as of April 1, 2020 and awarded her 9 months’ reasonable notice based upon her pre-CRP compensation package.

The Court found that the CRP was a significant reduction in compensation that amounted to a unilateral breach of the Plaintiff’s employment contract. In determining that the Plaintiff did not accept or acquiesce to the CRP, the Court did not accept the Defendant’s argument that the Plaintiff’s continued work indicated her agreement to the CRP.

The Court of Appeal Decision

The Defendant appealed the finding of constructive dismissal. The Court of Appeal allowed the appeal and found that the implementation of the CRP was not a constructive dismissal (meaning that the Plaintiff’s entitlements upon termination were to be calculated in accordance with her reduced post-CRP compensation).

The Court of Appeal agreed with the Trial Judge that the CRP a substantial change to an essential term of the employment contract to the detriment of the Plaintiff. The Court of Appeal also agreed that there was no express or implied term allowing the Defendant to reduce compensation. However, the Court of Appeal overturned the Trial Judge’s finding that the Plaintiff did not accept or acquiesce to the changes.

The Court of Appeal focused on the context of the global pandemic, the decimated oil and gas industry, and the lack of movement in the job market to determine that the Plaintiff had acquiesced to the CRP prior to the termination of her employment. The Court of Appeal found that the 25 days between the announcement of the CRP and the termination of the Plaintiff’s employment was sufficient for the Plaintiff to decide whether to accept the changes or leave and assert constructive dismissal. Because the Plaintiff’s continued work for three weeks doing the same tasks from the same office without taking any steps to communicate her dissatisfaction with the CRP, the Court of Appeal ruled that the Plaintiff had acquiesced to the CRP and that she had therefore not been constructively dismissed.

Concluding Thoughts

The Paramount Resources decision suggests that employees may have a relatively short window of time to communicate their rejection of a reduction in compensation and assert constructive dismissal, particularly in the context of an economic downturn (where movement in the job market is less readily available).

However, this decision is highly context driven and we recommend taking precautionary steps before implementing a substantial change to compensation or other employment terms, in order to reduce the likelihood of a successful constructive dismissal claim. Steps to consider include:

  • obtaining a written consent before making substantial changes to an employee’s terms or employment; and
  • incorporating an express term in employment contracts that allows the employer to reduce compensation.

“Quiet Quitting”: Emerging Issues and the Future of Work

Prateek Awasthi

Chances are, you’ve already heard of “quiet quitting”. From Tik-Tok to the Wall Street Journal, this is the latest trend that everyone’s talking about. “Quiet quitting” doesn’t mean quitting your job, quietly or otherwise. It refers to clocking in at work when you’re expected to, doing the tasks you have been assigned, leaving on time, and not taking on extra work outside regular hours. It is a misnomer, as it refers to meeting expectations as an employee, but not going above and beyond.

For some “quiet quitting” may be an effort to prioritise one’s own mental health and prevent burnout. For others, in a context of increased job security, “quiet quitting” represents a decision to do the bare minimum until wage increases catch up with inflation.

As with all trends, much is overblown. There is no evidence of a growing contagion of laziness. However, employers are always justified in taking proactive steps to improve engagement and increase productivity.

Setting clear expectations

Employers should routinely review employment contracts and update job descriptions to make sure they reflect what exactly is expected from employees at the workplace, and to align incentives with performance expectations.

  • While amending contracts, employers must make sure employees review and agree to the changes, in exchange for sufficient consideration, otherwise those changes might not be upheld in court.
  • While changing job descriptions, managers should get employees to sign off and provide adequate notice. Any “substantial changes” to an essential term of employment could constitute a “constructive dismissal”, and result in a resignation being treated as a termination.
  • Employers should also update their workplace policies, and, if they have not done so already, put in place a comprehensive human resources policies manual, which sets clear expectations regarding all aspects of workplace-related behaviours.

Disconnecting from Work

Employers should set clear expectations regarding when employees are expected to perform work, and whether employees may “disconnect from work”.

  • As of June 2022, Ontario employers with more than 25 employees were required to put in place a written policy on disconnecting from work. The objective is to provide employees with clearer expectations regarding work-related communications, including emails, telephone calls, video calls or the sending or reviewing of other messages, during hours off work.
  • Remember, that there is no “right to disconnect” from work in Ontario, other than the entitlements under the Employment Standards Act (the “ESA”), which sets daily and weekly limits on the number of hours of work and prescribes mandatory periods of rest.
  • The ESA requires employees to have 11 consecutive hours off work per day. However, employees who are expected to be “on call” when they are not at work, that is, accessible by phone or email to respond to calls to perform work, are exempt from this requirement.

It is important to review the requirements in your jurisdiction, and clearly outline such expectations in contracts, job descriptions and workplace policies.

Monitoring productivity

Employers have a legitimate business interest in monitoring employee productivity, to identify bottlenecks, gain valuable insights, and maximise efficiency. In many workplaces, electronic surveillance is an important tool to ensure health and safety, and promote accountability.

  • Employers must provide notice regarding whether they conduct workplace surveillance, and if so, how, in what circumstances, and for what purposes. As of October 2022, Ontario employers with more than 25 employees are required to have a writtenelectronic monitoring policy that must be shared with employees within specified timeframes.
  • Employers must be aware of protections under statute and common law of employees’ reasonable expectations of privacy, even when they use a company-issued device. Sensitive personal information, such as medical or financial records, are subject to especially stringent protections under privacy law.

It is important to have well-drafted policies that meet your business needs while navigating these legal requirements, to provide you with all the options you need to effectively manage the workplace.

Flexibility, innovation, and adaptability

In the coming months and years, employers will need to innovate to attract talent and build engaged and productive workforces, in an era of constantly shifting expectations about the future of work. “Quiet quitting” is just one of many trends that employers will need to manage as a part of this process.

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This newsletter is not intended as legal advice.  Any employer or organization seeking assistance should feel free to contact a Mathews Dinsdale lawyer for assistance.

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