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Mar 3, 2014

The big-brother employer

Surveillance of employees may seem like a good way to get proof of misconduct, but it doesn’t always stand up

By Jeffrey R. Smith

Do you know who’s watching you? If you’re in the workplace, somebody might be — and possibly outside the workplace, too.

Surveillance of employees by employers is a controversial issue. If it’s a case of setting up cameras in the workplace, it’s generally considered acceptable as long as the cameras aren’t hidden and employees are aware of them. If not, the employer could be in danger of violating employees’ privacy if the cameras are in an area where otherwise there might be a reasonable expectation of privacy.

Some employers use other forms of surveillance as well, which can be a little more sketchy. It’s not uncommon for an employer to hire an investigator to spy on an employee outside of the workplace if the employee is suspected of something like lying about medical restrictions. In such cases, the employer would be looking for indications the employee is capable of doing more things than she’s letting on at work.

Both of these forms of employee surveillance have their purposes, but they also raise questions about their usefulness. There have been numerous instances of employers relying on video surveillance in the workplace to prove employee misconduct and determine cause for discipline or dismissal. But video footage doesn’t necessarily provide just cause on its own without further investigation.

About a year ago, a Safeway grocery store in Alberta had its time clock vandalized with a sticky white and clear liquid a couple of times. The company installed a surveillance camera and, after another instance of damage, viewed footage showing an employee hanging around the time clock, leaving and then returning repeatedly with a Styrofoam cup. The employee had been seen putting water and coffee creamer in the cup in the break room. Though the employee’s back was to the camera and it couldn’t be seen what exactly he was doing, the employer felt this proved the employee was the vandal. The employee claimed he accidentally spilled some of the liquid, the employer didn’t believe him and fired him.

However, the employee was reinstated by an arbitrator who found the video footage didn’t clearly show the spill was on purpose and wasn’t enough to disprove the employee’s explanation or show he was the vandal. So while the video footage may have helped determine when the machine was damaged, it wasn’t enough to proof the employee was a vandal and give the employer just cause. See UFCW, Local 401 v. Canada Safeway Ltd., 2014 CarswellAlta 246 (Alta. Arb.).

In a recent blog, I discussed a case involving video surveillance where an employer conducted surveillance of an employee outside of work because the employer suspected the employee wasn’t being truthful about his back injury and medical restrictions. When the employee was observed doing activities beyond his medical restrictions at work, he was fired for being dishonest about his capabilities. However, an arbitrator found there could be a difference between what the employee was physically capable of on occasion outside of work and what he should be expected to do repeatedly for several hours day at work. See Energex Tube and Unifor, Local 523, Re, 2013 CarswellOnt 18465 (Ont. Arb.).

Essentially, the surveillance of the employee didn’t really prove much in terms of the employee’s abilities at work and certainly didn’t provide enough to serve as just cause for dismissal. So was it really worthwhile?

There have been many other cases where hidden surveillance of employees outside of work hasn’t been admissible as evidence for various reasons including privacy and inconclusive results. Is it worth the cost and trouble if it can’t be relied upon for just cause? As always, a comprehensive investigation into employee misconduct is necessary before determining a course of action, and simply relying on surveillance often isn’t enough to satisfy that requirement. 

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waivers and consideration
Monday, June 13, 2016 11:10:00 AM by Jeffrey R. Smith
While employees should be made aware of video surveillance, demanding a waiver of rights opens a different can of worms. Generally, asking employees to sign any type of waiver requires some consideration, such as a raise, bonus, or time off. If the employer refused to schedule any more shifts until a waiver is signed, that could result in constructive dismissal. It's also important to remember employees can't sign away rights that are protected in employment standards, human rights, or privacy legislation.

Of course, the employer is free to dismiss any employees who don't sign a waiver, but must provide common-law reasonable notice or pay in lieu of notice.
Video Camera Waiver for employees
Friday, June 10, 2016 12:17:00 AM
Can an employer require the employees to sign a waiver of rights for video surveillance? This public entertainment small non-unionized employer has had video cameras in public areas for many months and is now forcing his employees to sign a a waiver. If they refuse they will not receive any more shifts. Is that legal?
Although it can be said it is for the safety of the staff, the owner is known for continuously watching live surveillance. Two cameras pick up audio. There is no signage advising the public of the monitoring. Thanks.
Video Surveillance used to discipline for early break
Tuesday, September 23, 2014 9:05:00 AM by Jeffrey R. Smith
It's always a good idea for employers to make employees aware they may be under surveillance. If the surveillance is going to be used for discipline, the surveillance should clearly depict the misconduct. Remember, it should be used to establish the truth of the circumstances, not to prove a specific view of the circumstances.
Video Surveillance used to discipline for early break
Friday, September 19, 2014 3:23:00 PM
In Ontario can an Employer use video surveillance to discipline 1 employee out of a group.. for leaving a few minutes early for break?
The right approach to surveillance
Thursday, April 17, 2014 11:42:00 AM by Jeffrey R. Smith
A professional investigator would have proceeded differently. Which is why employers should consult professionals in surveillance situations, which didn't happen in this case. And there have been many cases where employers have jumped the gun by using surveillance evidence as just cause for discipline or dismissal before the surveillance actually proved anything.

I don't think anyone would prefer to have employee surveillance used, but sometimes it may be necessary to determine the truth of a situation. Like any investigation, if the approach is to specifically prove suspected misconduct rather than to simply determine the truth, it can affect the outcome and can lead to legal liability, or at least the throwing out of the surveillance evidence by a court.
Clear Bias
Thursday, April 17, 2014 9:11:00 AM by Trish Dehmel
Your use of the words "sketchy" and "spying" reveal a very clear bias against the use of surveillance and the case you have used to bolster your position is not one a professional investigator/surveillance operator would have done. In both cases, a professional investigator/ surveillance operator would have advised the employer to continue the surveillance until sustained activity was observed and the claimant's activities could be verified.
Interpretation of surveillance
Tuesday, March 04, 2014 3:51:00 PM by Jeffrey R. Smith
That's true, surveillance can be an effective tool. But employers must be careful. Courts and arbitrators have accepted surveillance evidence in certain situations and rejected it in others. The key is for the employer to understand what its surveillance actually proves. There is a high bar to prove just cause and in the case discussed above, the employer misinterpreted the surveillance data it had with regard to the employee's medical restrictions for work.
Tuesday, March 04, 2014 3:08:00 PM
Surveillance, when used correctly is an effective tool to establish fact. Employers have to be careful when deciding to implement surveillance and should concur with their lawyers before doing so. Sometimes the situation might not allow the consult, therefore the investigation company should have enough knowledge to provide guidance within the employment law to proceed or pull the reins.