Employers should consider privacy laws when asking intrusive questions: Lawyer
A voluntary employee “integrity questionnaire” introduced by the Canadian Border Services Agency (CBSA) has shocked the union and raised the eyebrows of legal experts.
The survey asks 57 questions, many of which the union representing Canadian customs and border agents finds sensitive and intrusive. They cover a range of topics from whether an employee has ever solicited a prostitute to how much alcohol he or she drinks every week.
“I was shocked,” says Jean-Pierre Fortin, national president of the Customs and Immigration Union (CIU).
Many legal experts are also surprised. Jodi Gallagher Healy, with Heenan Blaikie in Toronto, calls the questions “eyebrow-raising” in their nature and also because they include the behaviour of spouses. One question, for example, asks whether the employee’s spouse gambles, and includes such items as lotteries and scratch tickets.
“(Questions) have to reasonably relate to the person’s job,” she says, noting several key decisions have found employers to be overly intrusive with their questioning.
Gallagher Healy points to a ruling against the RCMP for asking female candidates about their menstrual cycle and another where firefighters were viewed to have their privacy violated by being asked to update their Criminal Information Records (CIR) annually rather than every five years.
Employers need to be mindful of human rights and privacy laws, especially in provinces with privacy legislation or where an employer falls under federal legislation, she says.
The purpose of such intrusive questions may be understandable if an employer is trying to ensure an employee doesn’t fall victim to bribery, blackmail or coercion, says Loretta Bouwmeester, a lawyer with Miller Thomson LLP in Calgary.
However, this questionnaire has “gone awfully far,” she says.
“There’s no evidence of an existing problem,” she says. “They need to prove there’s a problem.”
She cautions employers against asking personal and intrusive questions unless they can show there’s a bona fide occupational requirement. If the position requires heavy lifting, for example, employers may be justified to ask about pre-existing medical conditions.
On the other hand, requiring a credit check for a retail sales position may not be justifiable. Bouwmeester points to a decision in which Alberta’s privacy commissioner ruled a practice by Mark’s Work Wearhouse of pre-employment credit checks breached the province’s privacy act. Mark’s argued the information was reasonably required to assess whether a potential employee was at risk of committing in-store theft or fraud.
“It depends on the circumstances of the job,” she says. “Employers should use a heavy dose of caution.”
If there’s a less intrusive way to gain the same information, employers should use it, Bouwmeester says. If they’re concerned about blackmail, then they should make that discussion part of their orientation procedure for new employees and have a strong code of conduct against it, she says.
“Just because someone has solicited a prostitute doesn’t mean they’ll necessarily fall victim to blackmail,” she says. “The problem is they’re capturing everyone when it’s only maybe one per cent who may be a problem.”
Although the survey is voluntary, the Canadian Civil Liberties Association (CCLA) says there is always a concern about the consequences of providing sensitive, personal information.
Abby Deshman, director of the CCLA’s public safety program, says it may be used by employers to dismiss employees during cutbacks, for example, or to prevent people from being promoted.
“In a workforce, you absolutely need to know why you’re asking these questions,” she says. “You need to ask if there is a demonstrated problem and whether integrity or safety are being compromised.”
The CCLA is pushing for employers to use “individualized suspicion” as grounds to look into a potential problem, rather than casting a wide net that puts all employees under a cloud of suspicion.
“At the most basic level, this is about human dignity,” she says. “By asking these kinds of questions, you’re making assumptions that may not be accurate.”
This is especially important now that it’s easier to find and store personal information, Deshman says.
“We should be asking what is this information being used for, where is it being kept, who can access it and for how long do they plan to keep it,” she says.
It’s generally best not to ask sensitive personal questions unless employers have legal advice, Gallagher Healy says.
“If you don’t have that information in the first place, you’re in a better position to defend yourself,” she says.
The CBSA did not respond to requests for an interview. Meanwhile, Fortin says the CIU is asking members not to complete the survey until the union’s legal team has reviewed it.
