Navigating the privacy minefield

As communications and surveillance methods evolve in the workplace, privacy is an area of growing contention
|employmentlawtoday.com

Privacy in the workplace can be an area of confusion and ambiguity, given the patchwork of applicable and often vague legislation.

In British Columbia, provincially regulated employers in the private sector are subject to the

Personal Information Protection Act

(PIPA), but they may also be subject to the

Personal Information Protection and Electronic Documents Act

(PIPEDA), the federal legislation which applies to organizations that collect, use or disclose personal information in the course of commercial activities.

PIPA was declared “substantially similar” to PIPEDA, and therefore organizations in B.C. that are subject to PIPA are exempt from PIPEDA. However, PIPEDA may still apply to provincially regulated organizations in the private sector when, in the course of commercial activities, personal information crosses B.C.’s borders.

There is similar provincial privacy legislation in Alberta and Quebec. The overlap in privacy laws in these three provinces may lead to jurisdictional uncertainty. In the jurisdictions without applicable legislation, such as Ontario, navigating the murky waters of privacy law can prove even more difficult.

Technology and privacy

In light of ever-evolving communications and surveillance methods, from blogging, e-mailing and Blackberry messages to boardroom cameras, privacy is an area of growing contention which raises a number of issues for debate:

•Are employers allowed to access employees’ e-mails on suspicion of inappropriate activities?

•Is it permissible to post a surveillance camera in the reception area?

•Is an employer liable for posting derogatory comments about their employer on a blog site?

•Is it acceptable to monitor calls for training purposes?

•Is it legal to access an employee’s voicemail if they are off sick without their permission?

Answers murky

Michael Wagner, a partner in the labour and employment law group of Ogilvy Renault LLP, said there is a significant level of confusion about what is legally permissible and what is not when it comes to workplace privacy, particularly given the increasingly sophisticated communications tools in the workplace.

In B.C., PIPA requires employers to develop and follow policies and practices that are necessary to meet the obligations under the act as well as a process for responding to complaints. But the development, implementation and enforcement of such policies and practices are recommended for every Canadian organization in order to help clarify employer and employee rights and to protect against potential liability in this area.

In many cases, the answer to questions relating to workplace privacy rights and liabilities will depend on a number of factors including the province in which the employee is located, whether or not the employee is unionized, and the privacy policies the employer has in place. At present, three provinces -- Quebec, Alberta and British Columbia -- have private sector legislation which provides some clarity to workplace privacy rights.

However, in the province of Ontario there is no specific employee privacy legislation. Instead, employee privacy rights are often determined by arbitrators or the privacy commissioner, and depend on case-specific circumstances.

Preventing costly litigation

To prevent potential (and costly) liability issues, employers and employees need to understand their rights and obligations in the workplace.

For example, if employers wish to access employee e-mails, or to reprimand an employee for viewing inappropriate material on a website during company time or for writing corporately-damaging messages on public blog sites in their spare time, the facts of each case should be assessed in light of all the circumstances before taking action.

However, putting official corporate guidelines in place on workplace privacy issues will minimise ambiguity, acting in the interests of both the employer and employees.

Ogilvy Renault has outlined a number of practical and preventive measures that can be adopted by Canadian employers to clarify employee rights in the workplace:

•Canadian employers, including multi-national companies with operations in Canada, need to develop reasonable policies governing communications in the workplace. This should include guidelines for appropriate use of the internet, personal e-mails, blogging, BlackBerry devices, voicemail, recording of telephone conversations and video surveillance. Where the employer intends to monitor these forms of communication, it should also include the justification for any such monitoring.

•Multi-provincial employers should ensure that their policies are based on best practices that reflect all applicable provincial legislation.

•Employees should be required to review and sign the policies, either a hard or electronic copy. A record should be kept of the signature and the policy should be available to employees for consultation.

•Either the privacy officer or the HR manager should be given the responsibility of ensuring that new employees review and return a signed copy of the policies with their consent to adhere to them.

•These same persons should be given responsibility for reviewing these policies on a regular basis to ensure they embrace changing legislation, trends and technologies affecting communication in the workplace.

• These policies should be enforced regularly and consistently in accordance with established disciplinary policies.

"Workplace privacy issues are becoming more complex as technology advances and evolves. Organizations are encouraged to be familiar with their legal obligations and to develop reasonable policies that clearly set out employer and employee rights regarding privacy, including appropriate uses of technology, such as e-mail and the Internet,” said Wagner. “Such policies will protect the interests of employers and employees, manage privacy expectations, and help to manage potential liability risks."

This article was provide by Ogilvy Renault. Founded in 1879, the Canadian-based firm has offices in Toronto, Montreal, Ottawa, Quebec and Vancouver. For more information visit www.ogilvyrenault.com.

Related articles

Canadian Employment Law Today has covered privacy laws, and what they mean for employers, extensively. Here's a look at some of the articles from the online archives:

Manager attempted to record staff

Video surveillance takes another knock

Voice recognition software okay

Privacy commissioner blasts video surveillance of employees

For more articles on privacy, click on advanced search and select "privacy" as a category.

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