The Privacy Law Pendulum Continues to Swing

Surveillance, Fingerprint Technology and Cameras: A Workplace Privacy Update

A few weeks ago, our “Pendulum Swing” blog outlined the decision in the Coles case. It confirmed an employee’s right to some privacy regarding personal information stored on workplace computers. Privacy issues are, and continue to be challenging in the workplace as illustrated by the recent article “Do employers have a right to spy on workers” (Daniel Lublin, Globe and Mail, November 9, 2012).

Mr. Lublin points out that privacy laws are not absolute. The laws apply to varying degrees to different categories of employees, and to some, not at all. Even when the laws apply, there are exceptions and exemptions which may apply as well.

The article sets out circumstances in which an employer may “spy” on its workers. For example, some employees might be surprised to know that surveillance (in public places) may be utilized by an employer when there is suspicion an employee is feigning illness or injury to miss work. Fingerprint technology may be utilized in circumstances where it is used solely for the purpose of confirming whether employees are abusing a system (false overtime claims) or where it is used solely for a limited purposes (tracking times in and out of building).

The use of cameras in the workplace is a bit trickier. Where security problems (fraud, theft) exist, and the camera is placed in a specific, justified location in good faith, employees may not have a legal basis on which to object. However, if an employer lacks a good reason for a camera and does not advise its employees of its presence, there is at least one Ontario case that confirms the conduct may lead to a poisoned work environment, and potentially a constructive dismissal claim.

There is also support for the proposition that privacy-based rights exist in Ontario for invasion of privacy. Intentional or reckless spying may result in the awarding of a “modest conventional sum”.

The issue underpinning all of these issues appears to be the presence of a lawful reasons to justify the invasion of privacy (where an expectation of privacy actually exists). It is now commonly accepted that an employer with a good faith belief that an employee is stealing, defrauding the business, or engaging in illegal activity, may monitor his or her email and internet usage. Absent such good faith belief, however, some monitoring activities may result in legal exposure for the employer.

Mr. Lublin closes his article with the idea that personal privacy in the workplace is “more of an expectation, rather than a right.” As privacy laws continue to be interpreted in Canada, this may be a wise doctrine by which to approach these challenging issues. The best advice for employers? Get an opinion from a privacy law practitioner in advance of instituting any type of surveillance methods. As we continue to watch the pendulum swing, you’ll likely be glad you did.

A few weeks ago, our “Pendulum Swing” blog outlined the decision in the Coles case. It confirmed an employee’s right to some privacy regarding personal information stored on workplace computers. Privacy issues are, and continue to be challenging in the workplace as illustrated by the recent article “Do employers have a right to spy on workers” (Daniel Lublin, Globe and Mail, November 9, 2012).

Mr. Lublin points out that privacy laws are not absolute. The laws apply to varying degrees to different categories of employees, and to some, not at all. Even when the laws apply, there are exceptions and exemptions which may apply as well.

The article sets out circumstances in which an employer may “spy” on its workers. For example, some employees might be surprised to know that surveillance (in public places) may be utilized by an employer when there is suspicion an employee is feigning illness or injury to miss work. Fingerprint technology may be utilized in circumstances where it is used solely for the purpose of confirming whether employees are abusing a system (false overtime claims) or where it is used solely for a limited purposes (tracking times in and out of building).

The use of cameras in the workplace is a bit trickier. Where security problems (fraud, theft) exist, and the camera is placed in a specific, justified location in good faith, employees may not have a legal basis on which to object. However, if an employer lacks a good reason for a camera and does not advise its employees of its presence, there is at least one Ontario case that confirms the conduct may lead to a poisoned work environment, and potentially a constructive dismissal claim.

There is also support for the proposition that privacy-based rights exist in Ontario for invasion of privacy. Intentional or reckless spying may result in the awarding of a “modest conventional sum”.

​The issue underpinning all of these issues appears to be the presence of a lawful reasons to justify the invasion of privacy (where an expectation of privacy actually exists). It is now commonly accepted that an employer with a good faith belief that an employee is stealing, defrauding the business, or engaging in illegal activity, may monitor his or her email and internet usage. Absent such good faith belief, however, some monitoring activities may result in legal exposure for the employer.

Mr. Lublin closes his article with the idea that personal privacy in the workplace is “more of an expectation, rather than a right.” As privacy laws continue to be interpreted in Canada, this may be a wise doctrine by which to approach these challenging issues. The best advice for employers? Get an opinion from a privacy law practitioner in advance of instituting any type of surveillance methods. As we continue to watch the pendulum swing, you’ll likely be glad you did.