Your BlackBerry has a file of photos of you getting frisky on your last vacation. You’re running your hockey pool and doing your tax returns on the laptop you use for work.
Chances are there are personal files and e-mails and images on your work computer or smart phone that you’d rather not have your boss see.
And in what is being called a landmark decision, a Ontario court this week ruled that employees have a right to privacy for material contained on a work computer.
The judgment from the Ontario Court of Appeal involved a police search of an employer-issued computer used by a Sudbury high-school teacher that was found to contain pornographic images. The appeals judge agreed with a trial judge that by giving tech devices to employees, along with permission to take them home on evenings and vacations, the employer gave “explicit permission to use the laptops for personal use.”
The ruling has significant implications for workers who use electronic devices including cell phones for personal purposes – “which is pretty well everyone” – as well as employers who might like to keep tabs on employee use of tech devices, said Frank Addario, of Sack, Goldblatt, Mitchell LLP, who argued the appeal for defendant Richard Cole.
“A big issue here is the tradeoff that employers expect employees to make,” Mr. Addario said. “If they want their employees to be available 24/7 and are giving them BlackBerrys and PCs to contact them outside of business hours, it is inevitable that people are going to use those devices on their personal time as well as business time. That’s an inevitable consequence of asking people to be on call beyond eight hours a day,” he said.
“That means artifacts of personal, private life are going to get left on the electronic devices, regardless of who paid for them,” Mr. Addario said. And the court is saying that employers are going to have to respect that these are the employee’s private property, he said.
How this plays out in workplace practice remains to be seen, said Ethan Poskanzer, a workplace lawyer with Sack, Goldblatt, Mitchell.
“Employers are going to have to tread more carefully in monitoring devices whether or not they own them,” she said.
While there are no current numbers on how many companies in Canada conduct regular surveillance of their employees’ computers, more than 40 per cent of U.S. employers regularly scrutinized their workers’ files, according to a survey done by The ePolicy Institute, a Columbus, Ohio-based consulting firm, in 2007. And 28 per cent had fired an employee for misuse of e-mails or leaking classified information.
“I would call the court of appeal finding a seismic shift in the way privacy rights are dealt with in the workplace,” said Daniel Lublin, a lawyer with Whitten & Lublin LLP in Toronto.
“Until now most people generally assumed there was no reasonable expectation of privacy in work computers, and that would extend to work e-mail and Internet use,” he noted. “The court has now resoundingly said that there is a reasonable expectation of privacy in work technology that leaves the office.”
But there are some cautions, Mr. Lublin said: “The court makes a distinction that [the teacher] had privacy rights because the employer gave him the laptop and he was able to treat it as his own and take it home.”
So this case is important for people and companies where people work from home and for people who use portable devices, including PDAs and tablets, said Mr. Lubin, who advises companies on computer-use policies.
“But I would suggest there is still a distinction between those and equipment such as desktop computers that never leave the office. That distinction is not addressed in this decision,” he said.
