MT>3
  • Home
  • About
  • People
  • Services
    • e-Discovery
    • Managed Review
    • Information Governance
    • Due Diligence
  • Blog
  • News
  • Contact

The Privacy Law Pendulum Continues to Swing

15/11/2012

 
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.

Comments are closed.

    Categories

    All
    Artificial Intelligence
    Blockchain
    Cyber Security
    E Discovery
    Information Governance
    Legaltech
    Privacy
    Social Media
    Technology


    Archives

    November 2020
    October 2020
    July 2020
    June 2020
    April 2020
    March 2020
    February 2020
    January 2020
    November 2019
    October 2019
    September 2019
    June 2019
    May 2019
    April 2019
    March 2019
    February 2019
    January 2019
    May 2018
    April 2018
    March 2018
    September 2017
    August 2017
    February 2017
    January 2017
    December 2016
    November 2016
    October 2016
    September 2016
    August 2016
    July 2016
    June 2016
    May 2016
    April 2016
    March 2016
    February 2016
    January 2016
    December 2015
    November 2015
    October 2015
    September 2015
    August 2015
    July 2015
    June 2015
    May 2015
    April 2015
    March 2015
    February 2015
    January 2015
    December 2014
    November 2014
    October 2014
    September 2014
    August 2014
    July 2014
    June 2014
    May 2014
    April 2014
    March 2014
    February 2014
    January 2014
    December 2013
    November 2013
    October 2013
    September 2013
    August 2013
    July 2013
    June 2013
    May 2013
    April 2013
    March 2013
    February 2013
    January 2013
    December 2012
    November 2012
    October 2012
    September 2012
    August 2012
    July 2012
    June 2012
    April 2012
    March 2012
    February 2012
    January 2012
    December 2011
    November 2011
    October 2011
    September 2011
    August 2011
    June 2011
    April 2011
    March 2011
    February 2011
    January 2011
    December 2010
    November 2010
    October 2010
    September 2010
    August 2010
    July 2010
    June 2010
    May 2010
    March 2010
    February 2010
    January 2010
    October 2009
    September 2009
    August 2009
    December 2008
    March 2008
    November 2007
    October 2007

130 Adelaide Street West Suite 2020
Toronto, Ontario M5H 3P5
​ ​
t: 416-642-2220  
tf: 1-877-642-2220  
f: 416-642-9021

Contact MT>3
@MT>3 2018. All Rights Reserved
Picture

Privacy Policy and Terms of Use

  • Home
  • About
  • People
  • Services
    • e-Discovery
    • Managed Review
    • Information Governance
    • Due Diligence
  • Blog
  • News
  • Contact