Employees' Privacy Rights In The Canadian Workplace

Applicable Legislation Regulating Employee Privacy Rights in Canada

Discuss about the Exploring privacy and trust for employee monitoring.

Employers in the workplace have some rights related to privacy. They are subjected to many laws related to privacy in Canada. Some of the statutes that apply to information about employees in businesses and federal undertakings are the Personal Information Protection Act and the Electronic Documents Act (laws-lois.justice.gc.ca, 2018) However, several provinces in Canada have different legislation safeguarding the privacy rights of employees in the workplace. Employees are expected to have a certain extent of privacy at work even when they work in the premises provided by the employer or using the equipment provided by the employer for doing the task assigned to him. However, to contradict the aforementioned statement it can be said that while working for someone, employees are required to give up some of the rights of privacy (Geist, 2015). It is expected for employers to demand basic information related to the identity of employees for the purpose of providing them with pay and benefits and ensuring that the work assigned to them is being done efficiently. However, how much privacy should be provided to the employees is the subject matter of assessment.

In recent times instances of infringing the privacy rights of employees have occurred more than ever before. Examples of infringement of privacy rights of employees include: accessing personal files of employees, video surveillance, accessing web browsing records of employees keystroke monitoring of employees and genetic testing (www.priv.gc.ca, 2018). The information required by employers about the employees is limitless however it is the responsibility of the employer to justify that the information collected by them is used for appropriate purposes. Employers are required to balance the need to collect information with the rights of privacy of the employees in order to ensure that a healthy work environment is maintained in the workplace.

Workplace privacy can be considered to be an area of employment area which is very complicated in nature and can arise in many situations which involve the usage collection and disclosure of personal information. Some of the disputes related to rights of privacy of employee in the workplace involve unauthorized usage, collection and disclosure of medical records of employees, personal email of employees and history of the websites visited by such concerned employee (John, Knyazeva & Knyazeva, 2015). Often clashes arise between the right of privacy of the employee and the employer’s interest of safeguarding the business from being negatively impacted by the actions of the employees.

Different provinces in Canada have different legislations which aim to protect and regulate the employee’s rights of privacy. However in Ontario no specific legislation exists which governs the privacy rights of the employees. However, Occupational Health and Safety Act provides some degree of protection. Where there is no provincial legislation the federal legislation will be applicable. The federal legislations in Canada relating to the privacy rights of employees is the Personal Information Protection and Electronic Documents Act (Personal Information Protection and Electronic Documents Act, 2018). The aforementioned act governs how information of employees which is personal can be used or collected or disclosed.

Common Law Provisions on Employee Privacy Rights

The other legislations that govern the rights of privacy of employees are: The personal information act which is applicable to the employers of Alberta, British Columbia, Civil Code of Quebec and the Charter of Human Rights Freedoms of Quebec (Légis Québec, 2018). 

Several judgments of court cases have reflected on the provisions of the common law relating to the rights of privacy of the employees. According to the provisions of common law it is to be said that employers must develop internal policies about how personal information of employee is to be obtained. However such policy of the employer must be in compliance with the factors as enumerated below:

• Such policy of obtaining personal information is consistently applied through out the workplace
• Employers must inform the employees about the existence and any changes to the aforementioned policy
• Advice of the employees must be taken at the time of formulating the policy.
• All the employees are required to be served a copy of the policy
• Employees must be encouraged to read the policy

Every employee must ensure that a proper balance is maintained between the employee’s right of privacy and the employer’s need of collecting relevant information (Chang, Liu & Lin, 2015). If the employer aims to collect information about employees, it might seem to be an act of infringement of the privacy rights. Therefore employers must ensure that:

• The reason of collecting the information about the employee is disclosed to him.
• Collection or disclosure of personal information of the employees must be done with the consent of the employees.
• Only relevant information which is required for providing benefits to the employee or for increasing the efficiency of the job done by the employee should be collected
• Personal information of employees collected is used only for the purposes that such information was collected for. An Employer can keep or disclose the personal information of employees only if such employees give free consent to do so to the employers. An employer can also disclose personal information of employees if he feels that he has a legal obligation to do so.
• Employees have direct access to their personal information and such employees should be able to challenge the completeness and accuracy of their personal information.

Employers have legitimate rights for acquiring personal information from employees as they need to have proper information of those they hire, address the specific performance of the employees and ensure that safety is maintained in the workplace (Willborn, 2014). Employers have the right to monitor the operations of the employees by means of electronic monitoring devices to prevent leaks of confidential information of the organization and to stop harassment in the workplace.

Employers also have the right to delve into private affairs of the employees if they suspect that the actions of the concerned employee are likely to adversely affect the workplace. However treating employees as suspects and therefore getting involved in their personal matters cannot be justified on the ground that they might to do something harmful to the organization (Weber, 2015). Employers must weigh the benefits of monitoring the employees in the office premises and in office time against the cost of trust of the employees and their morale (Clément, 2016). Employers can best prevent workplace harassment by providing training to the workforce about the consequences of harassment in the workplace, formulation of effective anti harassment explicit policy and taking appropriate actions when the instances of harassment are reported to them rather than depriving all the employees of their right of privacy.

According to Lippert & Walby (2016), employees in the workplace must be told by their employers what personal information of is to be collected and for what purpose. They should also be told how their personal information is to be used and disclosed in the future. Employees must be informed about the policies on telephone, internet and mail use which are adopted by their employers of for the purpose of monitoring their activities. An employer is obligated to inform an employee who has been under continuous surveillance and is also obligated to tell such employee the reason for keeping him under surveillance.

Employees at the workplace generally do not have any privacy in their email accounts. The basic principle behind this is that the email which is used by the employee at work is provided by the employer therefore he has access to the same (Bernal, 2014). The employees can access the emails on the computer provided by the employer, therefore the employer naturally has the authority to monitor every activity of the employee. Employees also have the right to track the phone calls of employees for purpose of quality control. However, employers must stop monitoring the phone calls of employees once they become aware that such phone call is personal (www.priv.gc.ca, 2018) If there is an existing policy about monitoring the phone calls of employees, an employer can monitor the call long enough to assess whether such call is personal. An employee can face disciplinary action if it is found that he has used the resources of the employer to make personal phone calls.

Employer Rights and Obligations with Regard to Employee Privacy

An employer may provide advice to the employees that they do not have any right of privacy and that they should neither have any expectation of privacy (Lippert & Walby, 2016). Employers can state that giving up privacy of the employees is an important condition of the employment. Employees who accept such terms of employment will have no right of privacy and will be held to have consented to the unlimited collection, usage and disclosure of their personal information (Pohler & Willness, 2014). However it is questionable whether such consent is voluntary, well informed and clear. In order to assess whether the employee had freely consented to waive of his right of privacy, it is important to ask for their consent to explicit and justified usage, collection and disclosure of personal information. In many workplaces the rights of privacy of employees are enforceable under the collective agreements.

The right of employers to monitor the actions of employees through security cameras

It is fair and employers have the right to monitor the actions of employees through security cameras (West & Bowman, 2016). However, the act of monitoring the actions of the employees cannot be invasive in particular. Installing security cameras in washrooms and dressing areas are strictly not allowed.

Employees might find drug test to be invasive of their rights to privacy especially when such employees do not involve in abusing illegal drugs (Geist, 2015). Employers still possess the right to drug test employees. Since the employment of the employee is at will of the employer, such employer can deny retaining the employee if the employee in consideration refuses to take the drug test.

Conclusion

Thus in conclusion it can be said that employees have the right of privacy. Such rights of the employees are protected by federal legislation as well as by provincial legislations. However rights of privacy of the employees at times can conflict with the rights of the employers to collect, use and disclose personal information of the employees which are required to be possessed by the employer for the purpose of creating employment benefit for such employees and for ensuring that the work assigned to the employee is being carried out efficiently. Thus employers are required to formulate policies for obtaining, using and disclosing information of employees.

Reference List

Bernal, P. (2014). Internet privacy rights: rights to protect autonomy (No. 24). Cambridge University Press.

Chang, S. E., Liu, A. Y., & Lin, S. (2015). Exploring privacy and trust for employee monitoring. Industrial Management & Data Systems, 115(1), 88-106.

Clément, D. (2016). Human Rights in Canada: A History. Wilfrid Laurier Univ. Press.

Geist, M. (2015). Law, privacy and surveillance in Canada in the post-Snowden era (p. 350). University of Ottawa Press/Les Presses de l’Université d’Ottawa.

John, K., Knyazeva, A., & Knyazeva, D. (2015). Employee rights and acquisitions. Journal of Financial Economics, 118(1), 49-69.

Légis Québec. (2018). Legisquebec.gouv.qc.ca. Retrieved 9 March 2018, from https://legisquebec.gouv.qc.ca/en/showdoc/cs/C-12

Lippert, R. K., & Walby, K. (2016). Governing through privacy: Authoritarian liberalism, law, and privacy knowledge. Law, Culture and the Humanities, 12(2), 329-352.

Lippert, R. K., & Walby, K. (2016). Governing through privacy: Authoritarian liberalism, law, and privacy knowledge. Law, Culture and the Humanities, 12(2), 329-352.

Personal Information Protection and Electronic Documents Act. (2018). Laws-lois.justice.gc.ca. Retrieved 9 March 2018, from https://laws-lois.justice.gc.ca/eng/acts/P-8.6/

Pohler, D., & Willness, C. (2014). Balancing interests in the search for occupational legitimacy: The HR professionalization project in Canada. Human Resource Management, 53(3), 467-488.

Privacy in the Workplace - Office of the Privacy Commissioner of Canada. (2018). Priv.gc.ca. Retrieved 9 March 2018, from https://www.priv.gc.ca/en/privacy-topics/privacy-at-work/02_05_d_17/

Weber, R. H. (2015). The digital future–A challenge for privacy?. Computer Law & Security Review, 31(2), 234-242.

West, J. P., & Bowman, J. S. (2016). Electronic surveillance at work: An ethical analysis. Administration & Society, 48(5), 628-651.

Willborn, S. L. (2014). Notice, Consent, and Nonconsent: Employee Privacy in the Restatement. Cornell L. Rev., 100, 1423.