By: Iffat Ritter

Employers monitor employees for various reasons including:

• To examine work processes, efficiency and effectiveness of employee effort. 
• To tract productivity and identify areas for improvement.
• To ensure adherence to safety protocols and security measures.
• To protect organizational data and sensitive information.
• To manage performance issues and strategies.

Employers usually monitor employees through their computer usage, email, network activity, time spent doing specific tasks, physical location and attendance. However, the monitoring must be balanced with the employee’s privacy rights, and the employer must act reasonably when collecting personal information, including  background checks. In Saskatchewan employers must be reasonable and proportionate with the use of surveillance. Monitoring must be used for legitimate business purposes and employees must be made aware of the methods of monitoring utilized by the employer. The employer must advise employees what personal information is collected, how it is stored and how it is used. The collection use and storage of personal information must comply with the applicable privacy laws.

Personal information can include images, online activity, and data usage. Different statutes govern the collection, use, and disclosure of personal information. In Saskatchewan, personal information in any federally regulated business  is governed by federal statute, being The Personal Information Protection and Electronic Documents Act (PIPEDA).  Provincial Government institutions are governed by The Freedom of Information and Protection of Privacy Act (FOIP). Local governments are governed by The Local Authority Freedom of Information and Protection of Privacy Act (LAFOIP) and the Health Care Sector is governed by The Health Information Protection Act (HIPA).

Oddly there is no provincial legislation that governs private businesses in relation to employee privacy. Employers are simply expected to act reasonably and prudently when collecting employee information.

What about Video Surveillance in the Workplace?

Video monitoring is assessed by weighing the employer’s need against the employee’s loss of privacy.  Under PIPEDA there is a 4-part test for reasonableness which considers whether the surveillance is:

1. Necessary for a specific need;
2. Is more likely than not to be effective;
3. Is proportionate to the privacy intrusion; and
4. Has no less invasive alternative.

The purpose matters: surveillance for security or theft prevention may be acceptable, while surveillance mainly to monitor productivity may not be. Covert surveillance is held to a higher standard.  It requires strong justification for why employees are not informed and the surveillance must be minimally intrusive.

In an unreported Saskatchewan case against Coca-Cola an arbitrator  ruled that most of the cameras in use were justified because of security concerns, but one camera aimed at a time clock was not justified. The decision emphasized that employees should generally be informed in advance that they are under surveillance.

What about other forms of monitoring?

Courts and arbitrators apply the same balancing approach to other monitoring methods. Specifically:

• GPS tracking in company vehicles may be reasonable in limited or exceptional circumstances.
• Work computers can still carry a reasonable expectation of privacy, especially if personal use is allowed, though clear workplace policies can reduce that expectation.
• Social media activity can justify discipline where there is a real connection to the workplace and an employer policy supports it.
• Cell phone records may be accessed in limited investigations if the employer uses the least intrusive approach.

Emerging technologies such as facial recognition or health monitoring will likely be judged by the same principles: business necessity, proportionality, compliance with policy/law, and employee notice

How Procido LLP Can Help

If your organization is utilizing employee surveillance or is thinking of implementing it in your workplace,  Procido LLP would be pleased to assist you in providing advice on whether your plans meet the legal expectations and standards. We can help you determine if your organization is in compliance with the legislated requirements. Feel free to reach out to Procido LLP Senior Counsel, Iffat Ritter with any inquiries, at iffat.ritter@procido.com.

Disclaimer

This publication is provided as an information service and may include items reported from other sources. We do not warrant its accuracy. This information is not meant as legal opinion or advice. Contact Procido LLP (www.procido.com) if you require legal advice on the topics discussed in this article.