April 21, 2003

Spying on Employees

Spying on employees… and it’s perfectly legal

Employers have good reason to take advantage of new technology, but must balance it with the employee’s right to privacy

New technologies enable employers to monitor staff more closely than ever before. Employers have good reasons to take advantage of such technologies. Concerns range from keeping tabs on employee productivity to preventing employee theft and the downloading of offensive material.

These concerns must be balanced against the employee’s right to privacy, a right that is increasingly recognized in law. Employers would also be wise to consider the impact of monitoring on employee morale and trust.

Privacy in the workplace is a developing area of the law. Privacy legislation has been enacted in Quebec, British Columbia and federally and other provinces have legislation in the works. The federal Personal Information Protection and Electronic Documents Act (PIPEDA) is likely to be adopted by Ontario in January 2004. In the absence of legislation an employer cannot be sued by an employee for breach of privacy. However, even in provinces without legislative privacy frameworks, such as Ontario, employers should proceed with caution when monitoring employees.

If a workplace is unionized the collective agreement may restrict the use of video surveillance. In a non-unionized workplace the laws are still developing. Most courts agree that an employee has a reasonable expectation of some privacy, even when at work. While there is nothing wrong per se with installing video cameras in the workplace, videotaped evidence may not be admissible in proving employee wrongdoing.

Some courts have applied a test of relevance to videotaped evidence. In one wrongful dismissal case, a video which showed an employee sleeping on the job was found to be relevant. Many courts, however, apply a test of reasonableness, inquiring as to the necessity of the video surveillance and the manner in which it was conducted.

Monitoring employees outside of the workplace is more complex than the installation of on-site cameras. Labatt Ontario Breweries videotaped an employee off work property. Labatt suspected the employee was abusing sick leave. An arbitrator held that the employer’s reasons for ordering the surveillance (including a suspicion that the employee was operating his own business) were insufficient to justify the surveillance. It was also noted that the employer did not explore other options before resorting to surveillance. (Re Labatt Ontario Breweries 42 L.A.C. (4th) 151, 1994.)

Cases on this subject suggest that the location of the surveillance is relevant to a determination of its reasonableness. Many cases have suggested videotaping an employee inside his home is an unreasonable invasion of privacy. It may be best to videotape an employee only when in public view.

But even this can be problematic. One employer videotaped an employee, suspected of abusing sick leave, outside of work and in public view. The videotape evidence was held to be inadmissible. The arbitrator stated there was insufficient reason for the video surveillance, given the employment history. Furthermore, the company had failed to explore options other than surveillance.

Many employers have policies for employee use of the Internet and e-mail. It’s a wise move. Aside from concerns about employees surfing the Web on company time (time theft), employers have a legal obligation to protect employees from workplace harassment. Harassment may result from the viewing of a pornographic image on a co-worker’s computer or receiving an offensive e-mail.

In general the employee has no reasonable expectation of privacy when e-mailing or accessing the Internet at work. The computer is company property. The employer is permitted to monitor activity on that property. Additionally, courts seem willing to accept e-mails into evidence to prove employee misconduct. As with video surveillance, in a unionized workplace the employer should consult the collective agreement.

It is one thing to monitor computer use, it is quite another to discipline an employee for misuse. Case law suggests that employers should clearly explain any policy regarding Internet and e-mail use. Only conduct arising after such an explanation should be subject to discipline unless the conduct is clearly inappropriate. Discipline should be consistent and the employer must not tacitly condone conduct in breach of the policy through inaction.

Protecting your firm

In some jurisdictions employers must protect themselves against lawsuits for breaching an employee’s privacy rights. In all jurisdictions, employers must consider the admissibility of evidence collected through the monitoring of employees to prove employee misconduct. Consider the following guidelines when employing video and computer technology to monitor employees:

  • Use video surveillance as a last resort and only when necessary to protect the workplace.
  • Make sure there’s a reasonable likelihood a problem exists before resorting to video surveillance.
  • Avoid videotaping employees in locations where there is a high expectation of privacy.
  • Have a clear written policy regarding employee computer use which includes explicit rules against downloading and e-mailing pornographic or other offensive material.
  • Explain the computer use policy to every employee personally — it is wise to get a written acknowledgement.
  • Tell employees their computer use will be monitored and any breach of the policy will result in discipline up to and including termination.
  • Ensure the computer use policy is consistently enforced.

What the courts are saying…

Caught in the act

The City of Toronto suspected an employee of abusing workers’ compensation benefits.

The employee, an arborist, claimed to have injured himself at work. The supervisor doubted the employee’s claim because he alleged that he injured himself early in the day and yet completed the day of work.

The City conducted video surveillance of the employee while off work. The employee was caught cutting and removing branches from trees, work that he claimed to be incapable of due to his injury. The arbitrator determined that the videotape was admissible. The employer had a reasonable suspicion about the extent of the employee’s injury. The surveillance was also conducted when the employee was in pubic view and had a “relatively low expectation of privacy.”

Toronto (City) v. Toronto Civic Employee’s Union Local 416 (Roach Grievance), (2002) O.L.A.A. No. 72.

E-mail tales

Courts readily accept employee e-mails as evidence.

Telus Mobility fired an employee, Lee, who claimed he was terminated without just cause. The employer discovered Lee had sent e-mail to another employee which included pornographic material. Around the same time the company developed a written ethics code which dealt with e-mail and Internet use. This policy was explained to Lee in a one-on-one meeting with his supervisor. The supervisor did not mention her previous discovery regarding Lee’s e-mail to the co-worker.

Shortly after this meeting, other offensive e-mail was brought to the attention of Lee’s supervisor. This e-mail had been sent after the company policy was explained to Lee. It was decided that Lee’s employment would be terminated.

The arbitrator held, given Lee’s conduct in this case, that no rule was required to justify disciplining Lee. The nature of the material was such that it was self-evident that it would be unacceptable to an employer. The arbitrator found that a rule was in place and was consistently enforced. The arbitrator declined to interfere with management’s decision to terminate Lee’s employment.

Telus Mobility and T.W.U. (Lee) (Re), 102 L.A.C. (4th) 239.

Peter Israel is the senior partner in the Toronto law firm of Israel Foulon LLP – Employment and Labour Lawyers. He can be reached at 416-640-1550 or pi@israelfoulon.com. The author would like to thank Rachel Hepburn Craig for her assistance with this article. A version of this article originally appeared in the Carswell publication, Canadian HR Reporter.

LEGAL DISCLAIMER: This article is for informational purposes only and is not intended to provide legal advice, which in all circumstances must be tailored to the specific facts of any problem. You should obtain a proper legal consultation in order to determine how this article applies to your specific situation.
Please feel free to contact Israel Foulon LLP to learn more at 416-640-1550.

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