Question: Can an employer record (audio or video) performance evaluation or disciplinary meetings with individual employees? What are the legal obligations of keeping such recordings for a period of time?
Answer: It is well-established that an employee does not give up her rights to individual privacy when she becomes party to an employment relationship.
Even before the enactment of federal and provincial privacy legislation, case law had recognized that an employer’s management rights in relation to a safe and efficient business operation had to be balanced against employees’ rights to be free from unreasonable invasions of their privacy.
Various legislation has been adopted in recent years to give statutory sanction to such rights — provincial statutes dealing with provincial personal information protection and those addressing freedom of information and protection; and the federal Personal Information Protection and Electronics Document Act (PIPEDA). Although differing in specific provisions, they focus on the concept of reasonableness in defining the scope of an employer’s conduct in relation to its employees.
The federal act, for instance, states the purpose of the personal information protection provisions is "to establish, in an era in which technology increasingly facilitates the circulation and exchange of information, rules to govern the collection, use and disclosure of personal information in a manner that recognizes the right of privacy of individuals with respect to their personal information and the need of organizations to collect, use or disclose personal information for purposes that a reasonable person would consider appropriate in the circumstances."
Where employer conduct involves the recording of employees in a workplace setting, the question of whether the employer’s conduct is reasonable will depend on the specific facts. In the arbitral context, instances of surreptitious recording have typically been met with disapproval, particularly in more recent cases.
Overt but non-consensual recording is sometimes treated more favourably but could still breach employees’ privacy rights, depending on the circumstances in which it occurs.
In either case, an employer might have to justify its intrusion on the employee’s privacy. In a number of arbitration cases, employers have been found unable to justify non-consensual recordings and have been ordered to cease the practices or have been prevented from submitting the recordings to support disciplinary action.
Privacy legislation may authorize the collection of personal employee information without consent in some circumstances. For example, the Alberta Personal Information Protection Act allows for the non-consensual collection of a current employee’s personal employee information if: it is collected for the sole purposes of managing or terminating an employment relationship; it is reasonable to collect the information for that purpose; and the employer has provided the individual with reasonable notification that the information is going to be collected and why it is being collected, before collecting it.
This provision also incorporates the concept of reasonableness. Employees engaged in discussions of performance or disciplinary issues may not have the same reasonable expectations of privacy as those going about their work or engaged in off-duty activities. However, both performance evaluations and disciplinary interviews typically
involve matters of a highly personal nature where respect for an employee’s dignity would be an issue that could be raised to question the reasonableness of surreptitious or non-consensual recording.
Privacy legislation may also recognize circumstances where consent is not possible or practical. PIPEDA, for example, allows for the collection of personal information without knowledge or consent if "it is reasonable to expect that the collection with the knowledge or consent of the individual would compromise the availability or the accuracy of the information and the collection is reasonable for purposes related to investigating a breach of an agreement."
The only way an employer could feel assured its collection of an employee’s personal information would not offend his statutory right to privacy would be to reveal its intention to record the interaction, to reveal the purpose for the recording and how it will be used, to actually record the interaction only if the employee consents (in writing) and to comply with all of the safeguards, access, retention and disposal processes required under the applicable personal information protection legislation.
Any contractual obligations relating to the conduct of evaluations or disciplinary interviews would obviously have to be met as well. In the unionized context, it is certainly possible that recording could be challenged on the facts, despite its compliance with information privacy legislation.
As to the length of time an audio or video recording should be kept, that too would be dependent on the facts and the precise terms of any governing legislation or collective or other employment agreement. The retention of employee evaluations as part of an employee’s employment record might be reasonable in some cases for the duration of the employment without regard to the particular media in which they were recorded.
In other cases, the period of allowable retention might be dictated by the terms of employment. For example, if the recording took place in a unionized environment and could be considered disciplinary, the collective agreement might require its removal from the employee’s personnel file after a certain period of time.
The question of whether the recording of evaluations or disciplinary interviews might be permissible under the common law, arbitral jurisprudence or governing legislation does not address the question of whether it is advisable.
While it is true a recording provides the best evidence of what was said at such an interaction, the obvious presence of video and audio recording devices tends to put a chill on interactions and may actually prevent candid discussion. In addition, a recording may reveal flaws in the employer’s own procedures or investigations.
It is also possible an employer’s use of audio and video technology in this manner may impel employees to feel justified in doing the same. Smartphone technology is in the hands of almost every employee these days and there are more and more cases in which that technology has been used to record instances of alleged employer discrimination, harassment, safety infractions and the like.
Many employers are wisely considering policies specifically addressing such conduct. They would be hard-pressed to justify such policies in the face of their own recording of employee-employer interactions.
Tim Mitchell is a partner at Norton Rose Fulbright in Calgary. He can be reached at (403) 267-8225 or firstname.lastname@example.org.