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Private eyes

There isn’t much expectation of privacy in the workplace, so employees should be careful not to leave personal information easy to access by anyone at work
employment law
An Ontario teachers' union complained that teachers’ privacy was violated when aschool board searched their work files and laptops, and when the principal looked at what was supposed to be a private log.

By Jeffrey R. Smith

Do you know who’s watching? If you’re at work, it’s probably best to assume somebody is.

Everyone has a certain expectation of privacy, especially when it comes to keeping work life and home life separate. Most of the time, employers have no business in the personal lives of employees — as long as things don’t bleed into the workplace and affect productivity or the work environment.

However, things are a little different when it comes to privacy at the workplace.

Modern workplaces feature many different types of monitoring that make it difficult for anything private to take place. From security cameras to computer-use monitoring to good old-fashioned manager walkabouts, workplaces are usually open areas where anyone can see or overhear what anyone else is doing. When someone has an office, there may be a little more privacy that can be expected — though there’s a trend for many offices and meeting rooms to at least have windows, if not doors or walls that are clear glass.

Things can get a little more complicated when it comes to equipment such as computers and cellphones. If these are employer-owned equipment, the employers generally have the right to take them back and look at what’s on them, since they’re used for company business. However, when employees are allowed to take them home for personal use, there may be a certain degree of privacy expectation and who owns the content. As with many circumstances, a carefully worded policy can help clarify things.

But what about when employer-owned equipment is used to access private content? And what if that content relates in some way to the workplace? Generally, private content is just that — private. But if the means to access it is not-so-private, the expectation of privacy could lessen.

Take the circumstances surrounding two Ontario teachers who decided to keep a log about what they didn’t like about other teachers and the principal. The log was kept on one of the teachers’ private Google Docs account, but eventually other staff members and the school board heard rumours about it.

So the school board searched the teachers’ accounts on the board’s network, but they found nothing. However, one day after classes ended, the principal found a classroom laptop that one of the teachers in question had left on and logged into the digital log. The principal looked at the log and took photos with his cellphone, which led to a confiscation and search of the hard drives of that and other classroom laptops — but of course they didn’t find the log because it wasn’t on a computer, it was online.

The union complained that the teachers’ privacy was violated when the school board searched their work files and laptops, and when the principal looked at what was supposed to be a private log. However, while the log itself was in a personal file, there was a low expectation of privacy given the circumstances, found an arbitrator.

The classroom laptops were employer-owned and for the use of all teachers and students, so there was no privacy there — the school board was free to monitor what was on the hard drives. In addition, the teachers’ files on the school board network were assigned to individuals, but it was a work-related network and not for personal information, said the arbitrator

As for the principal viewing and taking photos of the log on the classroom laptop, it was the teachers’ fault for leaving the laptop on and logged into the site — the principal was free to enter the classroom and look at the laptop. He didn’t do anything to log in to the teachers’ personal log, said the arbitrator in dismissing the complaint: See York Region District School Board and ETFO (Shen), Re, 2018 CarswellOnt 13256 (Ont. Arb.).

Personal files and information are just that — private and personal information that employers have no right to dig around for. But if access to such information is available through normal use of work equipment that isn’t private and used for work, you really can’t expect that information will remain private from the employer or co-workers — there’s often somebody around who could be watching.

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.

Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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