When was the last time you went offline…truly offline? I’m talking about actually turning off your phones, computers, tablets, laptops, Fitbits, Apple Watches, or any of the many other ways we connect electronically.
Now, do you ever use work devices for personal reasons? Do you occasionally check Facebook, plan your next vacation, maybe do a bit of banking or search Cuteoverload for stress-relieving kitten GIF’s? (No judgement.) Are you one of the vast majority of us who keeps your entire life on your devices: contacts, appointments, banking, passwords, email, family photos, medical information, and yes, work presentations and documents? Now ask yourself whether you want your employer to know what your doctor said during your last visit? To see your vacation pictures? To read what you say in an email to your union rep?
The problem is that we text, email, and surf our way through our days without giving much thought to the elephant in the room -- or rather, the elephant’s Orwellian big brother. Employers are now tuning in to their employees’ keystrokes, browser activity, emails and even taking random remote screenshots for review.
Does your employer have carte blanche to monitor your electronic activities during work hours? On a work device? After hours? On your own device?
In most cases, the short (and much simplified) answer is no. Canadian courts and arbitrators have recognized that employees have a right to privacy, dignity, integrity, and autonomy that cannot be extinguished through workplace surveillance policies;
If an Employer is surveilling its employees, there are certain questions that need to be answered:
1. Did the Employer have sufficient reasons to carry out the surveillance? (i.e. a specific complaint of misconduct, or a very strong basis upon which to justify this means of gathering the evidence of misconduct. It is important to note that mere suspicion is not enough)
2. Was the surveillance reasonable?
3. Was the purpose, focus and actual conduct of the search sufficiently linked to the nature of the misconduct alleged and the evidence needed. For example: a complaint that someone is wasting time at work surfing the internet does not justify reading their personal emails or other private activities. This kind of complaint justifies only a survey of the time they spend in private pursuits on company time.
4. Were other, less intrusive, alternatives available to obtain the evidence sought?
Workplace privacy in Canada is still your right most of the time, but it is a right that is constantly under fire. Let’s all work together to protect it going forward.
Leigha Worth practices utility regulation, union-side labour, employment, human rights and privacy law at Allevato Quail & Worth.
The content of this post is intended to provide a general guide on the subject matter. Specialist advice should be sought about your specific circumstances.