Despite the existence of privacy legislation, privacy-based regulatory bodies, privacy principles and even privacy-based torts (wrongful acts that lead to damages) there is still no clear “right” to privacy for many workers.
This is because most privacy laws are not absolute. They have exceptions and exemptions – or simply don't apply to the vast majority of employees.
How then does this legal landscape practically affect the rights of Canadian employers and their employees?
Using surveillance evidence
It is generally not illegal in Canada to hire a private investigator to spy on an employee who says he or she is too sick to work. This is especially so if surveillance reveals the employee performing physical functions of the very kind that ostensibly cannot be performed while at work. Although these workers may have an expectation of privacy within the confines of their home, surveillance outside of the shopping mall, the park or even their cottage is fair game when there is a good reason to suspect that person of abusing their sick leave claim.
Using fingerprint technology
As a group of employees at a large Toronto law firm discovered, the absence of stronger privacy laws means there is no easy way to prevent their employer from installing machines that force them to swipe their fingers to get in and out of their workplace.
Where there is a reasonable apprehension of employee abuse (in this case, the law firm claims that some employees were being paid for time not worked), technology that tracks their time in and out of the workplace may be justified as long as it is only used for that purpose. Staff members may disagree with the purpose of the machines, and many vehemently do, but in the current legal landscape they could mount a moral or public relations challenge but not a legal one.
Using cameras in the workplace
Employees detest the idea that a camera can be installed in their workplace – but it can often be done.
If there is a problem with theft or security and the camera is trained on a specific location, it is not illegal. Employers retain the right to monitor their staff in some situations, but only if this is done in good faith and where there is a reasonable belief that an offence is being committed.
What if there is no good reason for a camera? Colleen Colwell confronted this legal issue when her boss secretly installed a hidden camera in the ceiling of her private office at her workplace in London, Ont., when he suspected the maintenance staff she supervised of stealing. When Ms. Colwell learned there was a camera watching her, she quit her job alleging 'constructive dismissal,' sued and eventually won her lawsuit when her employer admitted that she was not suspected of theft herself.
However, the Ontario Superior Court grappled in 2008 with how to award her damages. Ms. Colwell did not technically have a right to privacy, so spying on her did not violate any legal right. But employers do have an obligation to treat their employees in good faith, explained the judge in siding with Ms. Colwell. The presence of the camera in Ms. Colwell's office without her knowledge, consent or even a good reason amounted to a poisoned workplace, and on that basis she was awarded damages for constructive dismissal.
Invasion of privacy
This past January, the Ontario Court of Appeal opened the door to privacy-based rights slightly by recognizing that individuals can sue one another – and by extension, their employer – for an invasion of privacy. In this case, a bank employee accessed sensitive and private banking records of her husband's ex-wife, who sued her when she learned what had been done. The court ruled that if an individual intentionally or recklessly spies on another person's private affairs without a lawful reason, a "modest conventional sum" can be awarded.
Invasion of privacy claims can provide a limited avenue of recourse, but only if there is no lawful justification for spying, the court ruled.
The flip side of the Ontario court's ruling is that spying or snooping on employees suspected of stealing, cheating, lying, defrauding or malingering is still legal – and this routinely occurs in many different ways at work.
Employers often monitor employees' workplace computers, their e-mails and their Internet usage. Although, in light of a just released Supreme Court of Canada decision, employees can expect some privacy in the personal information contained on those computers, employers still have a right to ensure the devices are not being misused.
The same principles apply to monitoring employee's social media profiles, except that snooping on the workers can begin even before any work does.
Job candidates' public online profiles are often reviewed by employers and recruiters as part of the hiring process. Provided that hiring decisions are made on the basis of legitimate job qualifications that are thereby revealed and not on any human rights grounds, there is currently nothing illegal about this practice, although some may view it as immoral.
Although the rules are slowly changing, an employee's personal privacy is still more of an expectation at work, rather than a right.
Daniel A. Lublin is a partner at Whitten & Lublin, representing both employers and employees in workplace legal disputes.
Daniel Lublin