Recording meetings with employees

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 rights to individual privacy when she becomes a 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 the safe and efficient operation of its business had to be balanced against the rights of its employees to be free from unreasonable invasions of their personal privacy.

Various legislative schemes have 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; the federal Personal Information Protection and Electronics Document Act (PIPEDA)). Although differing in their specific provisions, they typically 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 in s. 3 as being “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 nonconsensual recording is sometimes treated more favourably but may still be found to breach employees’ privacy rights, depending on the circumstances in which it occurs.

In either case, an employer might be called upon to justify its intrusion on the employee’s privacy. In a number of arbitration cases, employers have been found unable to justify their actions in undertaking the nonconsensual recording of their employees in various contexts and have been ordered to cease the practices or have been prevented from submitting the recordings in evidence to support disciplinary action.

Privacy legislation may authorize the collection of personal employee information without consent in some circumstances. For example, s. 15(1) of the Alberta Personal Information Protection Act allows nonconsensual collection of a current employee’s personal employee information where 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.

Notably, 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 employees 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 nonconsensual recording.

Privacy legislation may also recognize that there are circumstances where consent is not possible or practical. PIPEDA, for example, allows collection of personal information without knowledge or consent where “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.”

But it is difficult to imagine circumstances where video or audio recording employee interviews would fall within this exception.

The only way an employer could feel assured that its collection of an employee’s personal information would not offend the employee’s statutory right to information privacy would be to reveal its intention to record the employer/employee 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 application 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 that an audio or video recording should be kept, that too would be dependent on the facts and the precise terms of any governing legislation and/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 the context of unionized employment 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 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 whether it is advisable.

While it is true that a recording provides the best evidence of what was said at such an interaction, it is also true that the obvious presence of video and audio recording devices tends to put a chill on interactions and may actually prevent the candid discussion that the process is intended to achieve. In addition, a recording may reveal flaws in the employer’s own procedures or disciplinary investigations.

It is also possible that an employer’s use of audio and video technology in this manner may impel employees themselves to feel justified in doing much the same.

Smartphone technology is in the hands of almost every employee these days and there are an increasing number of 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.