A surveillance camera operating in office. Stock photo by Getty Images.
Surveillance at work seems to be a hot topic lately. Employee’s privacy rights compete with the employer’s need to make sure his or her employees do their job, come in at the right hours, and don’t behave inappropriately.
To begin, employers don’t really have a right to ‘spy’ on you, but they can monitor you in limited circumstances.
In order to elaborate on the monitoring standards employers have, we need to first look at the law. These are the determining factors of which type of law, or policy, your employer will be regulated under and to which standards he or she will be held:
If an employer falls under the federal jurisdiction, then the employer has to comply with Personal Information Protection and Electronic Documents Act. Under PIPEDA, organizations that conduct commercial transactions, which includes the selling, bartering, or leasing of donor, or other fund-raising lists are covered by the act. It also applies to federally regulated organizations like banks, telecommunications and transportation companies.
Generally, under PIPEDA, an employer cannot really spy on his employee without just cause. The following sets out the steps employers have to take under PIPEDA to protect their employee’s privacy:
- Employers can only gather and record employee information required for "legitimate purposes" (that is, "purposes that a reasonable person would consider are appropriate in the circumstances").
- Employees must give informed consent to the use of such information where the need for employee information is not driven by a legal requirement (e.g., the SIN number for statutory deduction of income at source).
- "Informed consent" means employees must be told the purpose for which the employer is recording, using and distributing the information.
- If employee consent is required, employers may only collect, use and disclose the information for the purposes to which employees have consented.
- Employees have a right of access to the personal information in their files.
Under PIPEDA, there is also a test of appropriateness for monitoring an employee that the employer must meet:
- Is the measure demonstrably necessary to meet a specific need?
- Is it likely to be effective in meeting that need?
- Is the loss of privacy proportional to the benefit gained?
- Is there a less privacy-invasive way of achieving the same end?
If the province, in which the employer resides, has its own substantial privacy legislation, such as Quebec, British Columbia and Alberta, then the employer will likely have to follow the rules of the provincial privacy legislation. However, where a provincial body does not have its own legislation, then PIPEDA governs. Note: where the provincial legislation applies it should be very similar to PIPEDA.
Unionized v. non-unionized
Unionized employees have usually signed a collective agreement, which should contain information about the rights their employer has to surveil them. If a union employee files a grievance, it will be decided by a union arbitrator — not a court. Unions have their own complaints process to deal with matters that involve breach of privacy at work.
The arbitrator would look at these factors to determine if the surveillance was appropriate:
- Was it reasonable, in all the circumstances, for management to request video surveillance of the worker?
- Was the surveillance conducted in a reasonable manner?
- Were other alternatives open to management to obtain the evidence it sought?
Non-unionized — those who are not in a union, need also look at the employment contract they signed. If the contract is silent on this issue, then they would look to the appropriate legislation. Generally, unresolved disputes in this area go to either an administrative tribunal or the courts.
In the recent case of R v. Cole, a case that went to the Supreme Court of Canada in 2012, the court ruled that if a computer is used for personal purposes, whether at work or at home, and contains information that is meaningful, intimate and touching on the user’s biographical core, then the person may reasonably expect privacy.
This decision involved a public school teacher using a work computer to store nude photos of an underage female, and this case ultimately hinged on the Charter rights of unreasonable search and seizure that was conducted against him by police. Still, it also speaks to an employer’s right to spy on an employee.
Although this decision impacts mostly public service employees, it’s really a glimpse into how courts are looking at the right employees have to privacy at work.
However, a ‘reasonable expectation of privacy’ at work doesn’t mean that the employer can never monitor what’s on a work laptop or computer. Rather, caution must be applied in how and why he or she monitors it as to not to infringe on the privacy of their employees. Also the privacy expectation of employees concerns their personal information and not the work that they produce. Employers have the right to monitor their employee’s work.
In a 2016 decision, the Ontario Labour Board determined that an employer was justified in searching for work-related files on an employee’s USB key. A ‘reasonable expectation of privacy’ attached only to an employee’s personal files, not to work-related files. The employee’s use of his own USB key for work-related purposes diminishes that expectation of privacy for work-related files stored on the USB key but does not extinguish it for the employee’s personal files.
In general, surveillance cameras at the workplace should only be used in limited capacity and notice needs to be given to employees that cameras are being used. For example, an employer can install cameras for safety reasons, but must tell employees that he or she is doing so.
In terms of audio-surveillance of employees, employers should really refrain from this, as it’s illegal to record private conversations without the knowledge of the people speaking.
In conclusion, it seems the law is moving more and more towards the protection of the privacy rights of employees at work. Therefore, according to federal and provincial legislation and case law, the right to spy on an employee by an employer is extremely limited.
Office of the Privacy Commissioner: Privacy Toolkit
R v. Cole, 2012
Association of Management, Administrative and Professional Crown Employees of Ontario (Bhattacharya) v Ontario (Government and Consumer Services)