By Jeffrey R. Smith
When employees use electronic equipment, such as computers and cellphones that are owned by the employer and given to them to do their work, it’s pretty much inevitable that the equipment will not be used only for work purposes.
Employees might surf the Internet on their break, make a few personal calls or send personal emails. While the employer shouldn’t be too interested in the content of this personal use for the most part, it naturally would want to know if the employee was doing something that could be harmful to the business or even be illegal. But if the employer wants to check on what the employee’s been doing, it has to tread carefully so the employee’s privacy rights aren’t violated.
It becomes more tricky if the equipment is used by the employee outside of the office and work hours, such as a laptop or cellphone the employee is allowed to use for personal reasons. Even if the equipment is still owned by the employer and is meant for work purposes, the employer doesn’t necessarily own all the data on it.
The case of Ontario teacher Richard Cole has been in the news since inappropriate photographs of a female student were found on his laptop, which had been given to him by his school for work. But he was also allowed to use it for personal reasons. The photos — which Cole obtained through monitoring student emails, a part of his job — were initially found by a tech person during routine maintenance, but it was the school’s subsequent copying of his Internet browsing history and search of the computer by police without a warrant that caused controversy.
In a series of appeals, various courts had different takes on the privacy issue, with both the trial court and the court of appeal finding the maintenance check by the technician was routine and expected, but the school’s copying of his Internet files and the police search violated Cole’s privacy. Anything found from the search was inadmissible, because Cole had an expectation of privacy that neither the employer nor the police should be able to look at those personal files. However, the Supreme Court of Canada found that expectation was reduced because it was the school’s laptop and Cole shouldn’t expect information on it would never be seen by his employer. The top court also found the school had a good reason to copy Cole’s files and turn the laptop over to police after the technician found the photos in a routine procedure.
While this is primarily a criminal case, there has been much discussion about what the various court decisions have meant when it comes to employee privacy rights on work computers, particularly since employees having laptops and smartphones that they use outside of work is common. Regardless of whether the employee takes it home and uses it for her own purposes, should there be any expectation of privacy on a work computer or smartphone, or should it be assumed anything on the machine can be accessed by the employer? Would a clear policy stating the employer’s freedom to check any equipment eliminate any privacy expectation and let employees know that personal information on work equipment is there at their own risk?
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at email@example.com or visit www.employmentlawtoday.com for more information.