Can an employer monitor employees working from home through their computer cameras if it notifies employees of this practice?
Question: Can an employer monitor employees working from home through their computer cameras if it notifies employees of this practice?
Answer: Workplace privacy law in Canada has evolved over the past decade with the advances in technology. Privacy legislation is split between federally legislated workplaces and provincial legislation. For federally legislated workplaces, the Personal Information Protection and Electronic Documents Act recognizes the right of privacy of individuals including employees. Provincial privacy legislation also recognizes privacy rights within the provinces.
When evaluating whether an employer has infringed on the privacy rights of an employee, the courts have focused on what level of monitoring is reasonably justified. To answer the question of reasonableness, the Federal Court in its 2004 decision Eastmond v. Canadian Pacific Railway used the following four-part test:
- Is the measure demonstrably necessary to meet a specific need?
- Is it likely to be effective in meeting that need?
- Is the loss of privacy proportional to the benefit gained?
- Is there a less privacy-invasive way of achieving the same end?
There is also an obligation to inform the employee that they are being monitored.
The test focuses on solving specific problems within the workplace. It must be shown that there is a problem within the workplace, such as theft or harassment, and not the potential for a problem for surveillance to be justified. If using computer cameras to monitor employees in their home office, an employer would need to inform the employee of their monitoring as well as have a reasonable purpose to monitor them. Courts have found that unwarranted surveillance of a workstation can result in a constructive dismissal from of a “poisoned atmosphere”: Colwell v. Cornerstone Properties Inc.
For more information, see:
- Eastmond v. Canadian Pacific Railway, 2004 FC 852 (F.C.).
- Colwell v. Cornerstone Properties Inc., 2008 CanLII 66139 (Ont. S.C.J.).
Leah Schatz is a partner with MLT Aikins LLP in Saskatoon. She can be reached at (306) 975-7144 or [email protected].