Balancing the professional with the private

Is Big Brother watching you work? If so, are you comfortable with it?

Surveillance of employees has always been a bit of a tricky proposition. It makes sense that employers want to keep tabs on employees to make sure their businesses are operating at the best of their ability and employees aren’t up to mischief. But employees do have a right to some level of privacy – so how much should they get?

This issue of employee surveillance got in another twist with the global pandemic forcing many employers to have a good number of their employees working from home for several months. When the workplace is also the employee’s home, monitoring of employees while they’re working at home raises additional concerns.

Within certain limits, many employees are probably fine with some level of monitoring. A recent U.S. study found that 90 per cent of people working from home are OK with their employer being able to look in on them during the workday. The same survey found that half would structure their day differently to enhance their productivity — one of the main motivations for employers monitoring employees.

Technology allows employers to check on employees in many ways. In the workplace, they can use video surveillance. In both the workplace and for remote workers, they can monitor activity on company computers, whether it be through tracking Internet activity, keystroke logging, or use of a webcam (through videoconferencing or passive camera viewing). While such monitoring can help with productive, protecting assets, and preventing potential misconduct, there are drawbacks that should be kept in mind.

Privacy legislation differs across the country. Alberta, British Columbia and Quebec have their own privacy legislation that applies to businesses that operate entirely within their borders, while other for-profit businesses are subject to the federal Personal Information and Electronic Documents Act. All the legislation places limits on what information about employees can be collected and how it can be used.

Legal decisions highlight challenges
Back in 2005, a library in Alberta was found by that province’s privacy commissioner to have violated the privacy of an IT employee by installing software on the employee’s computer that logged keystrokes. The library had concerns about the employee’s productivity and how he used his time at work.

The commissioner found the information collected from the keystroke logging wasn’t relevant to managing the employee and there were other non-intrusive methods available to monitor productivity, noting that the employee had been allowed to do personal online banking on his work computer outside of work hours, and the software had captured this: see Order F2005-003 of Alberta’s Information and Privacy Commissioner.

In 2012, the Supreme Court of Canada issued a decision in a more famous case involving an Ontario high school teacher who was charged with possession of child pornography found on his school-issued laptop computer. Lower courts found that the employer had a right to search the laptop to a certain extent, but when the school turned it over to police who searched it without a warrant, the teacher’s privacy was violated. The Supreme Court agreed that there was an expectation of privacy on the work laptop with regards to personal emails and information, but that expectation was diminished: see R v. Cole, 2012 CarswellOnt 12684 (S.C.C.).

Five years ago, a Saskatchewan arbitrator addressed the dismissal of a worker for being affiliated with a motorcycle gang. As part of the employer’s investigation, it reviewed emails the worker had sent with his work email address, including personal emails between the worker and his wife.

The arbitrator acknowledged that the employer’s email policy stated that emails in its system were its property and not private, but found that because of the heavy use of email in society, it is impossible for some incidental, personal use of work email not to occur, resulting in some expectation of privacy. The search of the worker’s emails wasn’t reasonable because it didn’t try less-intrusive alternatives first: see SGEU v. Unifor, Local 481 (2015), 255 LAC (4th) 353 (Sask. Arb.).

It’s a good idea for employers to have technology policies that clearly state that work emails are not confidential and the employer owns the equipment that employees use. However, there may still be some expectation of privacy. When employees are working from home, this expectation may very well increase, as its more likely employees will be mixing personal with professional activities over the course of the workday and outside of work hours and it will be more difficult for employers to be able to prove the relevance of monitoring.