Privacy and shared computers

If employees are allowed to use shared company computers for personal reasons, does the expectation of privacy change if they don’t sign out of their personal accounts?

Privacy and shared computers
Tim Mitchell

 

Question: If employees are allowed to use shared company computers for personal reasons, does the expectation of privacy change if they don’t sign out of the personal accounts?

Answer: When a company provides computers to employees and permits personal issue, the most common issue that arises is whether the employee has a reasonable expectation of privacy. As a starting point, employees who are permitted to use their employer-issued computers or cellphones for personal use will have a reasonable expectation of privacy. However, the application of this area of law is fact- and circumstance-specific and there are instances where this expectation of privacy will be diminished. As such, the application of the below information will depend on your individual employer policies, terms of use and employment relationship in addition to the nature of the material being accessed.

In considering this issue, courts and arbitrators often apply the four-part test from the Supreme Court of Canada’s seminal decision in R v. Cole, whereby the employee’s reasonable expectation of privacy is assessed on the “totality of the circumstances.” This analysis is informed by both the employer’s workplace policies and the subject matter of the documents themselves. In Cole, the top court noted that where the information goes to the “biographical core” of the employee such that it is intimate, private and personal, a greater expectation of privacy will naturally arise. This is true even where the employer has a strong policy in effect — for example, see BC Hydro & Power Authority v International Brotherhood of Electrical Workers, Local 258. An example of information that goes to the “biographical core” of an employee includes communications with their spouse — see, for example, SGEU v. Unifor, Local 481.

Nonetheless, this privacy interest will still be balanced against the employer’s management rights and will not always be upheld in favour of an employee. Just this past year, Ontario courts considered whether employees who use personal accounts on employer-issued computers have an expectation of privacy. In Elementary Teachers Federation of Ontario v. York Region District School Board, two teachers had logged into their personal email accounts on an employer-issued laptop. In these accounts, the teachers kept a log of the negative interactions they had with their co-workers that they intended to bring to their union. The principal of the school became aware of the log and entered the teacher’s classroom to find that the laptop was open with the log visible on the screen. The employer subsequently issued letters of discipline to the teachers, which they grieved. The court upheld the arbitrator’s determination that, in the totality of the circumstances, the teachers had a diminished expectation of privacy because the laptop was left open and logged into their private account and the information did not go to the “biographical core” of the teachers.

The broader case law demonstrates that, while employers may permit employees limited personal use of workplace computers, the employer is entitled to restrict the terms and conditions on which that use may be permitted. The appropriate discipline issued by employers who discover that their employee has misused its computers is varied and fact-dependent. However, where the breach is coupled with other infractions, termination is a possibility. For example, the Alberta Court of Appeal in Poliquin v. Devon Canada Corp. upheld the termination of a supervisor who was using the employer’s computer and internet access to view and transmit pornographic and racist material in violation of the employer’s Code of Conduct.

In addition to the foregoing, the following practical considerations are also important for employers:

• Employers should review their computer and internet terms of use to ensure that the language is unequivocal and clear for employees.

• Employers should also review these policies regularly with employees so that employees know what their expectation of privacy is and how their use of employer-provided computers can impact that expectation of privacy.

• Employers should only conduct searches of employer-provided computers when there is reasonable cause to do so. Unreasonable or overly broad investigations may result in a court or arbitration board deeming the evidence inadmissible.

• When employers elect to search an employer-provided computer, it should be cognizant of certain types of privacy that will continue to prevail even where a strong policy is in place, such as clearly intimate or personal information about the employee, solicitor-client communications and select communications with the employee’s union.

For more information, see:

  • R v. Cole, 2012 SCC 53 (S.C.C.).
  • BC Hydro & Power Authority v. International Brotherhood of Electrical Workers, Local 258, 2017 CanLII 146770 (B.C. Arb.).
  • SGEU v. Unifor, Local 481 (2015), 255 LAC (4th) 353 (Sask. Arb.).
  • Elementary Teachers Federation of Ontario v. York Region District School Board, 2020 ONSC 3685 (Ont. Div. Ct.).
  • See Poliquin v. Devon Canada Corp, 2009 ABCA 216 (Alta. C.A.).

 

Tim Mitchell practises management-side labour and employment law at McLennan Ross in Calgary. He can be reached at (403) 303-1791 or [email protected]

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