Is notifying employees required?
Question: Does an employer have to notify employees when it installs cameras to monitor in an open office, or is it assumed there is limited privacy in such an environment? The cameras are set up to film the entire area and everyone in it, not a specific part.
Answer: The question whether surveillance cameras will or will not be considered an invasion of employee privacy is not dependent on employees’ knowledge of the cameras alone. Instead, it will depend on a variety of factors, including such considerations as the nature of the workplace, the reason for the installation, the visibility of the cameras, the degree of monitoring, the persons having access to data, the duration of data retention, the quality of the resulting data, the nature of the cameras (fixed or remotely movable), and the use to which the data is put.
For example, hidden cameras installed as a last-ditch effort to discover the perpetrator of theft in the workplace may be considered reasonable, notwithstanding lack of advance notice that would obviously undermine the purpose of the installation. In such circumstances, employees’ rights to privacy may have to yield to the employer’s greater interest in protecting its and its employees’ assets. In Colwell v. Cornerstone Properties Inc., a secret camera installed in a trusted manager’s office without her knowledge, purportedly to address thefts, was found to constitute a constructive dismissal where the explanation given for the installation and the attendant secrecy was unconvincing.
Conversely, advance notice of the installation of visible cameras may be insufficient if the employer has no legitimate interest to protect, the video surveillance is pervasive and allows monitoring of employees’ production and performance and the employees are not informed of the purpose of the surveillance. It is not sufficient that the employees have no expectation of privacy if they are found to have an entitlement to privacy.
Overt surveillance may be more readily justified than covert surveillance, but this does not relieve an employer of the obligation to justify the intrusion. In PIPEDA Case Summary #2009-001, an employee of a bus company complained that video cameras installed in a bus depot constituted an invasion of privacy. The complaint was found by the office of the Federal Privacy Commissioner to be justified, even though the cameras served a legitimate purpose and notices were posted throughout the depot informing employees of the surveillance. It was the employer’s failure to make reasonable efforts to explain to employees the purposes of the surveillance that justified the complaint. No implied consent to the collection of the employees’ personal information could be found in the absence of such an explanation.
One of the recommendations made by the Privacy Commissioner was that the bus company finalize a draft surveillance policy with a four-point test that described the conditions to be considered by organizations considering surveillance. The four points of the test were:
•Is the use of video surveillance cameras demonstrably necessary to meet a specific need?
•Is video surveillance likely to be effective in meeting these needs?
•Is the loss of privacy proportional to the benefit gained?
•Is there a less invasive way of achieving the same end?
In R.W.D.S.U. v. McKesson Canada Corp., the union opposed installation of security cameras in a warehouse despite having received advance notice. The employer had a particularly compelling case: It distributed products including narcotics to hospitals and pharmacies. The interior cameras were focused on the warehouse’s entrances and exits and the narcotics vault. They did not capture employee activity, except on an occasional and unintentional basis. The employer had agreed with the union that the cameras would not be used to evaluate employee performance. The arbitrator held that the employer had breached no collective agreement or privacy right enjoyed by the employees and refused to order removal of the cameras. An employer with a less compelling reason for undertaking surveillance might well have been accorded less leeway.
While advance notice (and ongoing adequate signage) may not eliminate employees’ rights to privacy, such warnings do serve to remove the reasonable expectation of privacy. Accordingly, advance notice would eliminate one argument against the deployment of surveillance cameras. However, the potential success of an invasion of privacy argument would depend upon what other factors that could be brought to bear by both sides in balancing the legitimate interests of management and employees.
For more information see:
•Colwell v. Cornerstone Properties Inc., 2008 CarswellOnt 7702 (Ont. S.C.J.).
•PIPEDA Case Summary #2009-001
•R.W.D.S.U. v. McKesson Canada Corp., 2010 CarswellSask 787 (Sask. Arb. Bd.).
Tim Mitchell is a partner with Armstrong Mitchell Lawyers in Calgary who practices employment and labour law. He can be reached at [email protected].
