Employer surveillance of employees.

• Author: Bowal, Peter
• Position: Employment Law

Anyone who is being constantly watched by the boss while working knows the unease of that experience. We don't mind working or explaining what we did, but we don't like being watched while we are working. According to Justice LaForest in the Supreme Court of Canada case of Duarte (1990):

"The very efficacy of electronic [recording] is such that it has the potential, if left unregulated, to annihilate any expectation that our communications will remain private. A society which exposed us, at the whim of the state, to the risk of having a permanent electronic recording made of our words every time we opened our mouths might be superbly equipped to fight crime, but would be one in which privacy no longer had any meaning."

On the other hand, employers have a legitimate interest in preventing losses and ensuring that the workplace is productive and safe. Technology can effortlessly and inexpensively monitor what we do, say, read, write, and with whom we are interacting. We spend much of our lives at work and some of this may be the employer's business, but most of it will not. What rights of privacy do we have at work?

Employer surveillance must be balanced with employee privacy. The law is spotty in attempting to strike this balance.

The Charter of Rights and Freedoms applies to limit government power so it applies to public sector employers. The Charter does not explicitly set out any limits on monitoring civil servants, other than that such monitoring cannot take place in a discriminatory fashion on the basis of gender, race, religion, age, etc. Government employers concerned about theft and other loss prevention issues may want to check employee personal domains such as bags, lockers and desks. Or they may want to conduct drug and alcohol testing. These are forms of searches over which there is a reasonable expectation of privacy. They are governed by the section 8 Charter right for everyone to be "secure from unreasonable search or seizure."

Under the Criminal Code, it is a crime to intercept private telecommunications, including from employees to other employees, a superior, or a union official. Section 184 reads "Every one who, by means of any electro-magnetic, acoustic, mechanical or other device, wilfully intercepts a private communication is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years."

By monitoring email and telephone, employers normally would run a risk of being accused of...