Interview with Hicks Morley Hamilton Stewart Storie LLP

April 2004

Terry McQuay, Nymity's President, interview with Scott Williams, Partner at Hicks Morley Hamilton Stewart Storie LLP, provides some details of his upcoming presentation at Nymity's Employee Privacy Conference on May 17th and 18th.  Scott is speaking on "Surveillance & Monitoring- Employee Privacy Rights in the Wired Workplace".  Learn more about Scott's presentation.

Nymity: Scott, do the privacy Acts have much impact on how organizations monitor employees?

Williams:  The short answer is “potentially”. PIPEDA certainly regulates the collection of employee personal information for federally regulated employers. However it does not likely cover such collections by provincially regulated employers. The more difficult question is whether private investigators who collect employee personal information on behalf of provincially regulated employers are subject to the Act.

Provincially, Quebec’s legislation appears to regulate the collection of employee information through monitoring. The Alberta and British Columbia Acts permit collection without consent for certain employee information. The B.C. legislation normally requires notice of such employee personal data collection, however, notice may be waived in some circumstances.

Nymity: What are the provisions in the Acts that impact employee monitoring/surveillance?

Williams:  None of the acts have provisions specifically directed towards electronic monitoring. However, some of the general provisions of each Act may impact on an employer's ability to engage in monitoring or surveillance. For example:

PIPEDA: As noted above, the Act likely only applies to employee personal information collected by federal employers. However, even this proposition is still untested. If subject to the Act the purposes for collection must be “appropriate” (s._5(3)). Consent for collection of personal information must normally be obtained prior to or at the time of collection(Schedule 1, s. 4.3). Exemptions to the consent obligation are limited ( s._7(1)).

PIPA (B.C. Privacy Legislation): Collection may occur without consent if “reasonable for establishing, maintaining or terminating an employment relationship” however the employer must normally notify the employee of the collection and explain the purpose (s._13(1)) unless an exemption applies (s._12).

PIPA (Alberta Privacy Legislation): Collection of personal information about an employee may occur without consent provided it is reasonably related to the employment relationship ( ss._15(1) and (2)).

(Que Legislation): Personal information can be collected in a file for a “serious and legitimate reason” (s._4). Normally individuals must be informed of the “use which will be made of the information”. Consent must normally be obtained to use information (ss._12 and 13).

Nymity: What are the privacy issues with video monitoring?

Williams:  As discussed above, employers may face restrictions on monitoring under privacy legislation. For example, federally regulated employers, whose employee personal information is covered by PIPEDA, may be restricted to conducting video monitoring only where they can establish monitoring is for an “appropriate purpose” (see for example Case Summary #114 on the Federal Privacy Commissioner’s website).

Aside from privacy legislation, unionized employers may have difficulty relying on video surveillance tapes to justify disciplining or discharging an employee. Some labour arbitrators have indicated that implied employee privacy interests must be taken into account in determining whether to admit video tapes into evidence. To date these considerations have not been given as much weight by the courts.

Nymity: What is the test for using video surveillance in a labour hearing?

Williams:  Some arbitrators have indicated that an employer must show that there was reasonable grounds to initiate surveillance, that surveillance was conducted in the least intrusive manner and that other, less intrusive means of dealing with the employee issue would not suffice. Not all arbitrators have adopted the test leading to some confusion amongst employers. Moreover, as noted above, the courts have not appeared to adopt the same sort of standard so far.

Nymity: What are the issues when monitoring email/web usage?

Williams:  Employers may have the same concerns regarding compliance with privacy legislation and their ability to introduce evidence obtained through electronic monitoring at a hearing.

So far, labour arbitrators appear to be more willing to accept evidence obtained through computer monitoring on the basis that there is a diminished expectation of privacy when engaging in activities on an employer’s computer. Arbitrators and courts have also indicated that no expectation of privacy may exist where employers have set out their right to monitor in a computer use policy.

Aside from these consideration employers should be aware of the provisions of the Criminal Code dealing with the interception of “private communications” without the express or implied consent of the originator or intended receiver of the communication.

Nymity: What are the issues when monitoring phone conversations?

Williams:  The use of phone monitoring is most prevalent amongst employers whose employees largely conduct business over the telephone (i.e. call centre operations). Issues similar to those described under the video surveillance and computer monitoring discussions above will have to be taken into consideration.

Employers in this category are often recording conversations with customers. Care should be taken to explain the purpose for the monitoring to the customer and to obtain the appropriate customer consent prior to engaging in monitoring to ensure compliance with the applicable privacy legislation.

Nymity: What are the issues when observing employees without the use of technology?

Williams:  Whether or not technology is used to collect employee information (ie video surveillance vs. the notes of a private investigator) will likely not affect whether the data collection is in compliance with privacy legislation or whether it will be admitted into evidence at an employment hearing.

Nymity: What are the issues with surveillance of employees outside of the workplace?

Williams:  In most cases video surveillance conducted outside the workplace will be seen as more intrusive. This type of surveillance is often done surreptitiously when an employer suspects an employee of misconduct. Employers should pay attention to the test adopted by some labour arbitrators and described above regarding the admissibility of such evidence.

Employers whose employee personal information is regulated by PIPEDA may be able to rely on the exemption in s._7(1)(c) of the Act to justify collecting information without consent (collection to investigate a breach of contract). However in at least one case so far, an adjudicator has indicated that this exemption may only be used where there are reasonable grounds to conduct the investigation (see Ross v. Rosedale Transport Ltd.)

Nymity: Are organization security operations an issue? Security passes?

Williams:  Organizational security remains an important reason for collecting data. However collection for such a purpose may not be unfettered. The gathering of data for organizational security can raise issues of privacy.

The use of security reference checks has been considered in several instances. In Case Summary #65 of the Federal Privacy Commissioner, the use of security checks for employees of a contractor working on a nuclear site where found to be reasonable. This may not be the case in all instances. In a more recent case a trade union was granted a stay restricting a government employer from imposing police, security and credit checks because there was an arguable case that the checks did not meet the reasonableness rule under provincial FOI legislation and that it violated s. 8 (unreasonable search and seizure) of the Charter.

Nymity: Does work product factor into this discussion?

Williams:  Employers may be able to argue that monitoring for certain forms of information obtained through electronic monitory are exempt from the protections of privacy legislation because they deals with the collection of “work product” rather than “personal information. For example, is the taped conversation of a call centre employee responding to a customer query “work product” or “personal information” or does it contain both? The lines between “work product” and “personal information” still needs clarification in the monitoring and surveillance context.

Where surveillance and monitoring is conducted to gather data on an employee suspected of engaging in misconduct it is unlikely that the relevant data will be characterized as “work product”.

Nymity: How are organizations changing to deal with monitoring/surveillance?

Williams:  Many employers now have some form of computer use policy which clearly identifies computer equipment as employer property and identifies the right of employers to monitor computer usage.

Employers who monitor telephone conversations between employees and customers have begun using taped introductions to identify the potential for monitoring and the purpose for monitoring. Similar notices are starting to be used by employers who have installed video cameras for non-surreptitious video surveillance (i.e. for merchandise security in retail stores).

Nymity: In respect to surveillance/monitoring, what are the major differences between British Columbia, Alberta and Quebec?

Williams:  In effect, the B.C and Alberta legislation appear to create a blanket exemption permitting employers to collect personal employee data for purposes reasonably related to the employment relationship without consent. Quebec legislation contains no such blanket exemption.

The B.C. and Alberta legislation also impose a general obligation on employers to provide notice and describe the purpose of the collection to employees unless one of the exemptions applies.

Nymity: In respect to surveillance/monitoring, where have the major sources of complaints been (PIPEDA)?

Williams:  For the most part complaints have focused on the use of video surveillance, both at the worksite and surreptitiously outside of the work place. Interestingly, monitoring of computer usage has been generally less controversial.

Attention seems to be growing for the use of new technologies such as GPS and biometric scans as these are introduced into the workplace. In one recent labour arbitration, the use of biometric scanning in a non-surveillance situation (i.e. it was used by the employer as a form of time card) was found to be unreasonable and in violation of the employee’s implied privacy interest.

Nymity: Is everything recorded subject to an access request?

Williams:  Both PIPEDA and each of the three provincial privacy Acts contain access provisions which permit individuals to access their own personal information. This would include information stored not only as paper documents but information electronically recorded on video tape or stored in a computer.

Nymity: Please introduce Hicks Morley Hamilton Stewart Storie LLP and your offering for employment privacy.

Williams:  Hicks Morley is Canada’s largest management side labour and employment law firm. As part of our general labour and employment law practice we advise clients with respect to privacy issues which arise in the labour and employment context including the use of electronic monitoring data and the development of privacy and computer use policies. We represent employers in a variety of labour and employment forums including arbitration, labour board, courts and workers compensation tribunals where privacy issues arise on a regular basis.

Nymity: When should an organization seek legal advice regarding employee monitoring and surveillance?

Williams:  At the time employers start considering its use. Employers should be aware of the current state of the law before investing in the use of surveillance equipment and services which may produce data they cannot rely upon in the course of their business or in litigation.