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Employers need to let their employees know if they’re monitoring their activity and how that information will be used. (Getty Images/Hemera)
Employers need to let their employees know if they’re monitoring their activity and how that information will be used. (Getty Images/Hemera)

Privacy laws

The law, surveillance and employee privacy Add to ...

Stuart Rudner will take part in an online chat with Globe Careers on Wed., June 11 at 1 p.m. ET to answer readers' questions about your privacy rights at work. Join us then by clicking on the box below this story.

“This call is being recorded for quality assurance purposes…”

We all hear this type of message when we contact an organization for customer service. However, what does it mean for the employee involved in that conversation? Can it be used to justify discipline if performance is sub-par? Can the employer listen to every call that is being recorded, including an employee’s personal conversations?

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The Personal Information Protection and Electronic Documents Act (PIPEDA) and related provincial legislation applies to the collection of private employee information in various works, undertakings, and businesses. The legislation seeks to strike a balance between an employer’s ‘need to know,’ and the employees’ right to privacy, generally requiring that the employer obtain the consent of the employee to collect, use and disclose personal information only for purposes specifically outlined.

As such, employers should advise employees as to what personal information will be collected, used, and disclosed, and for what purposes. Any continuous recordings or surveillance of the workplace should be disclosed to employees, and they should be advised that the information collected can be used for specified purposes, such as discipline or safety.

Despite legislation being in place, it was not until January, 2012, when Canadian courts began to recognize privacy rights, beginning with the Ontario Court of Appeal’s decision of Jones v. Tsige in 2012. Ms. Tsige was in a common law relationship with the former husband of the plaintiff, Ms. Jones. Ms. Tsige and Ms. Jones both worked for the same bank, though they had never met. Over about four years, Ms. Tsige used her workplace computer to access Ms. Jones’ personal bank accounts 174 times because she was involved in a financial dispute with Ms. Jones’ former husband and had accessed the accounts to confirm whether he was paying child support.

The court ruled in favour of Ms. Jones and ordered Ms. Tsige to pay $10,000 in damages.

The central issue in the appeal revolved around whether the law recognized a right to bring a civil action for damages for the invasion of personal privacy or “intrusion upon seclusion.” Someone who intentionally intrudes, physically or otherwise, upon the seclusion of another or her private affairs or concerns, is liable for invasion of her privacy, if the invasion would be highly offensive to a reasonable person.

The case really dealt, for the first time, with the law’s protection of the individual’s right to be protected from unreasonable intrusion into their private life.

Given the extensive use of corporate equipment such as computers and portable devices like Blackberries or iPhones, there is much confusion around whether the employer has the right to access an employee’s personal information contained on it. Further, it is easy to track an individual’s online conduct; every browser includes a history feature revealing which websites have been visited.

Employers can therefore view all files saved on their computing infrastructure, and may install software that will track everything an individual does.

However, even when using corporate equipment, employees may have some reasonable expectation of privacy. This issue was at the forefront of a criminal case, R. v. Cole, in 2012 in which a laptop, owned by the school but used by a teacher, was found to contain inappropriate images, including nude photos of a student. In the context of a criminal prosecution, the Supreme Court of Canada found that the police did not have the right to search and seize the laptop without a warrant, despite the fact that the school owned the laptop and had the right to search it. Rather, the individual was allowed to treat the laptop as his own, which created an expectation of some degree of privacy.

This decision was controversial amongst the employment law bar, with some suggesting that this was a change in law providing more privacy rights for employees. However, the Cole case related specifically to the right of the police to search the laptop without a warrant and the ability of the prosecution to rely upon the evidence obtained in a criminal matter. It should not impact on the rights of employers, and in fact the Supreme Court confirmed this, stating: “I leave for another day the finer points of an employer’s right to monitor computers issued to employees.”

Given the parting comments of the Supreme Court, privacy legislation and the Jones case, the workplace must balance the employer's right to access personal information for performance or safety issues, with the privacy rights of the employee. To the extent that there is a reasonable expectation of privacy, employers may be limited in their ability to gather and use such information against the employee.

Consequently, an employer seeking to monitor employees should have a clear written policy, which has been signed and agreed to by employees. Such a policy would establish that the employees should not have any expectation of privacy, and that the employer’s use of the information may be for performance, conduct and workplace security monitoring.

At the same time, however, employees who surf inappropriate websites using their employer’s computer, or log into their personal e-mail accounts through the corporate server, do so at their own peril, since the employer could review what the employee has done, and impose discipline if the employee has been “cyberslacking” or engaged in other inappropriate conduct.

In any case, if the employer discovers that the employee has used its corporate equipment to bring harm either to the company’s reputation, or another individual in the company, then, the employer may have just cause to terminate the employment relationship.

Natalie MacDonald and Stuart Rudner are co-founders of the employment law firm Rudner MacDonald LLP. Ms. MacDonald is the author of Extraordinary Damages in Canadian Employment Law. Mr. Rudner is the author of You’re Fired! Just Cause for Dismissal in Canada.

Online chat

Join Stuart Rudner at 1 p.m. ET on Wed. June 11 to talk about employees' privacy rights at work. Do you know how your workplace is monitoring your activity? Do you have concerns? Do you know your rights or have questions? Join us to get answers.

You can send in questions when the online chat is launched on Wednesday or in advance by e-mailing them to careerquestion@globeandmail.com.

 

 

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