A preliminary exploration of workplace privacy issues In Canada

Abstract

Do Canadian employees lose fundamental human rights when they enter the workplace? The quick answer to this question is ‘no’; however, this response deserves some consideration. Workers are frequently faced with background checks, drug and medical tests, and/or routine electronic surveillance of their actions, both in the physical and the online worlds. Companies looking to protect themselves from litigation or costly medical claims, as well as to maintain the proper corporate image, are increasingly scrutinizing employees’ off-duty activities as well. At what point, though, does this monitoring invade the individual’s right to privacy (as defined by the U.N.’s Declaration of Human Rights)? To what extent are Canadians willing to allow corporate interests to supercede those of the individual? Also, should they choose to oppose surveillance, what legal protections do Canadian employees have? The following report addresses these questions by exploring the right to privacy, including the rationale for and against workplace monitoring, noting the situations in which employee and employer interests come in to conflict, examining the relevant legislation in Canada and abroad as well as discussing instances in which court decisions have either strengthened or weakened employee rights. The report concludes by identifying some of the problems that must be solved before Canadian employees will see any true privacy protections. Canadian workplace privacy legislation is weak, at best. As in the United States, a person’s right to privacy is not protected by the Canadian Charter; rather, it is derived from a series of other rights. There are two main Acts that have been adopted in order to clarify this situation, and define the ways in which privacy is legally protected: the Privacy Act of 1983, and the Personal Information Protection and Electronic Documents Act (PIPEDA), which came into effect in part in 2001, and in full in 2004. These acts limit the collection of personal information about individuals to that which would be considered appropriate by a ‘reasonable person’, as well as ensuring that such collection is done after the individuals’ consent has been obtained. However, these laws do not cover information collected by employers about non-federally regulated private sector employees. In fact, with the exception of workers in B.C., Alberta and Quebec, each of which has passed its own privacy legislation, Canadian private sector employees have little to no protections for their privacy rights. This fact affects more than just the employee who is attempting to avoid completing his or her tasks. This report describes the ways in which comprehensive workplace monitoring leads to increases in employee stress and depression, decreased productivity, and a general sense of employees as machines, rather than humans. Pre-employment screening, random drug tests, regular medical examinations, continuous electronic monitoring and periodic off-duty surveillance all lead to a state in which the employee becomes dehumanized, as he or she is constantly monitored for defects and marked for corrective measures. Employers, however, argue that this level of scrutiny is necessary and justified, as they have an equal right to protect their assets, as well as measuring workplace activity in order to ensure that employees earn their salaries. Companies also note that in order to protect themselves from liability, they must prove that every effort has been made to create a workplace free from violence and harassment, which is best achieved through programs of surveillance. The seeming conflict between employee and employer rights arises in many situations, and is often challenged either in court or before Canada’s Privacy Commissioner. The use of closed-circuit television (CCTV), or surveillance cameras, is workplace situation that is most frequently seen by the Commissioner. The many cases that have been presented serve to form a clear set of regulations for CCTV’s installation: employees must be informed of the purpose of the cameras (and that purpose must be considered ‘reasonable’), the cameras cannot monitor an individual’s work area, and they also cannot be used for anything but their original purpose (with exceptions for the investigation of a crime). This seems a fair situation for both employee and employer; it is hoped that it will become a model for other, less defined situations, such as mail opening, keystroke monitoring, off-duty surveillance and drug testing, all of which are discussed in the report. The report also describes the privacy protections (or complete lack thereof) for workplace e-mail communications in the United States, as a warning to Canadian lawmakers of what may be considered ‘reasonable surveillance.’ Once the legal situation regarding Canadian workplace privacy has been established, the report suggests five fundamental problems that must be addressed in order to resolve the issues discovered. They are: - The adversarial relationship between the employee and employer; - The use of the ‘reasonable person’ criteria in PIPEDA; - The Privacy Commissioner’s prohibition from publishing the names of companies whose practices are challenged; - The lack of anticipation of the privacy effects of new technologies, and; - A lack of study of privacy in the Canadian workplace. Though solving these problems will not be sufficient to resolve the workplace privacy crisis, such solutions will be necessary conditions for a positive outcome. Strong workplace privacy protection can be beneficial for all parties. This report is an initial attempt at providing a framework for such an effect.

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