Sending the odd personal email from your work account or using a work phone for a family-related call is nothing unusual — employees do it every day.
But how closely do employers monitor those communications? And — more importantly — how closely should they monitor them?
That was a central issue in a Toronto District School Board (TDSB) review by education consultant Margaret Wilson that found employees were afraid to use company phones or send emails lest someone higher up be listening in — figuratively or literally.
The report was submitted to Ontario Minister of Education Liz Sandals on Jan. 15, 2015, and included more than 60 interviews with staff. It identified a “culture of fear” within the organization, said Wilson in a press conference.
“It’s not new — it’s been festering for a long time,” she said. “The level of fear in very senior staff is dreadful and it has reached down to the principal level.”
Employees felt as though their every move was being monitored, and the stress and negative impacts on the work culture were considerable, said Wilson.
“I had a surprising number of people tell me that they thought their email and phone systems were being monitored,” she said.
“I was deeply disturbed. I’ve dealt with this level of professionals throughout my career. I’ve never interviewed people before where they burst into tears, they were under such stress, where they come in and say, ‘They know I’m here — could I get fired?’”
Expectation of privacy
While the TDSB review described a culture of fear that sounded relatively extreme, many workplaces have issues or questions around employee monitoring. Where is the line between an employee’s right to privacy and an employer’s right to monitor how its time and resources are used?
“Most people use their phone or computer to search the Internet or update their Facebook or use it for Twitter, or whatever the case may be. Also, people use their work emails for personal purposes,” said Doug MacLeod, principal at MacLeod law firm in Toronto.
“Most people assume that when they’re using company equipment or company networks for their own personal purposes, that they’re not being monitored. And that’s what the courts have said very recently — that there’s an expectation of privacy.”
At the same time, there are limits to privacy when a worker is on company time, said Rick Lash, director of leadership and talent practice at Hay Group in Toronto.
“To a degree, this has always been going on throughout the history of work. But I think technology has enabled (this) to a greater degree,” he said.
But not every employee fully grasps that what they’re writing, surfing or browsing isn’t just between them and their computer screens.
“There’s a certain naivety, especially sometimes around generations that grew up with this technology, in naively believing that what they communicate online and through their phones is completely private, and (they) are often surprised to find out that not only is it not private, but there’s stuff being disseminated all the time around anything that’s occurring online,” said Lash.
Employees need to be aware that employers may be accessing those communications and, at the same time, employers need to be aware there is a limited right to privacy for employees.
Two 2012 legal cases — Jones v. Tsige, an Ontario Court of Appeal case, and R. v Cole, a Supreme Court of Canada case — shed some light on the issue, said MacLeod.
In Jones v. Tsige, the court addressed an employee’s right in Ontario to sue for “invasion of personal privacy.” In R. v Cole, the court heard a case where a teacher was found in possession of child pornography on a work computer.
“When the case was being tried, the issue came up as to whether the school board had the right to search his laptop without his permission,” said MacLeod, adding that the court made some pretty strong comments about monitoring employee emails, essentially stating that Canadians reasonably expect privacy in the information contained in their work computers.
That expectation of privacy all depends on the context, however, so employees should still be cautious about using work resources for personal use.
Impacts on work culture
Further to any potential legal concerns, however, is the impact employee monitoring could potentially have on the workplace culture — particularly if employees are made to feel “spied on,” as seen with the TDSB case.
“It can lead to an environment that I would call a toxic working climate — people working in an environment of fear,” said Lash.
This melding of workplace and personal lives is an issue that organizations are increasingly facing.
“It’s an interesting trend, partly enabled by technology, but also this issue of: Does an employer have a right to monitor and to delve into the personal lives of their employees?” he said.
It’s raising a lot of difficult questions that haven’t been answered yet about where the line is for employers, said Lash.
“This raises new issues. From having cameras embedded in the ceilings of your office, which are basically taping everybody in your office 24 hours a day, and how that information is being used… it’s a difficult question to know when an employer has sort of crossed the boundary.”
It’s understandably upsetting to employees to feel that their privacy is being violated, particularly when there is no cause to monitor their personal communication, said MacLeod.
“Let’s say there’s an employee who hasn’t done anything wrong and they’re communicating with their spouse about intimate marital problems, talking about very personal and private medical information, talking about very personal and private information about their relationship with their children, that kind of thing,” he said.
“So when they communicate that information to people that are close to them, and then find out that their employer, or more likely an IT technician, is reading this information, it’s very upsetting.
“This is not something you’re expecting your employer to be reading, and it’s not something you want your employer to be reading.”
Tips for employers
One of the best ways to avoid any potential issues is to address employee monitoring at the outset of the employment relationship in an employment contract, said MacLeod.
“They may have a policy on how much time employees can use company property for personal purposes, whether it’s on the Internet or emails or text messages, or whatever.
“But putting that aside for a second, you can have a term of employment which says, ‘If you choose to use the equipment or network for personal purposes, know that we could monitor that communication at any time, and that you’re agreeing that we can do that.’”
That allows the employee to be aware of that policy and decide whether she is going to make alternative arrangements for personal communications, such as using her own personal smartphone.
“The employee should know exactly whether their electronic conversations are being monitored and, if so, then they can decide how they want to have those communications,” said MacLeod.
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