Every company requires its employees to provide a lot of personal information, including personal work history, addresses, phone numbers, bank accounts and even the results of credit searches before or during employment. Many of the same details are given by persons who are simply seeking employment.
A company may also trace its workers’ internet activities in the course of employment or track and record personal email messages on their company’s server. These practices are often contained in company policy documents which disclose this type of monitoring. Is this legal?
Ontario statutory law provides no protection against such information being collected by the employer. There is some modest protection offered by the Personal Health Information Protection Act to allow for the confidentiality of private health information.
The Common Law
The common law does allow for a civil remedy where confidential information has been misused. It may seem like an awkward enforcement process to sue one’s employer alleging misuse of personal information, but at the moment, this is the sole means of enforcement.
The lawsuit is colloquially known as “intrusion on seclusion”, which basically is intended to mean the misuse of confidential information. The general test is:
- The access to the confidential information is not authorized;
- This intrusion is objectively seen to be “highly offensive”;
- The information accessed is private; and
- This action caused the innocent party mental anguish.
The leading case on this issue involved an employee of a bank who used their position to access the financial information of an adverse party in a matrimonial dispute. The high side of the damage award is in the range of $25,000 to $50,000.
What is “Personal”?
The definition of what is and is not confidential property in an employment context is one that takes its lead from criminal cases involving defences under the Charter of Rights and Freedoms. These cases often look to popular views of what are and are not properly expected considerations of privacy.
The leading case is the Supreme Court of Canada decision in R. v Cole, which arose in a criminal context, yet nonetheless offers words of guidance for workplace parties on this subject.
The accused was a high school teacher who had been permitted to use the School Board’s laptop computer for personal purposes. He stored personal information on the computer which included nude and semi-nude photographs of a female student.
Following routine computer maintenance, the IT department of the school discovered the offending images. The computer was subsequently surrendered to the police by the school who accessed the computer without a warrant, thereby raising the issue of a Charter breach.
This, in turn, led to an assessment of the reasonable expectations of privacy of the accused with respect to the contents of the computer. The Charter is intended to protect individual privacy interests, allowing for state intervention only by legal authority.
In this case, the court did not define the employer’s right to access the computer records of employees in a general sense but it is clear that it was not prepared to allow the employer’s policy document to rule the day.
It is a complicated issue as to which personal information of an employee a company may access. Generally speaking, it is expected that management will not have the right to review clearly personal messages, banking information, financial documentation, or even personal web browsing activity no matter what the policy document may say.
Lesson for Management
Step one is to create a comprehensive policy document that states the company’s right to monitor employee’s computer use and documentation stored on its server. This will, at least, allow for a good faith monitoring role. That being said, an employer should avoid accessing clearly personal documentation.
Individuals should avoid storing anything resembling personal information on a company server or using their employer’s browser to access personal interests.
Get Advice Before You Act
Privacy rights in the workplace are an important complicated issue. It is most important that both employers and employees understand their rights and obligations pertaining to this issue. Contact the offices of Toronto employment and labour lawyers Mallins Law. We regularly advise employees and employers on legal workplace issues. Contact us online or by phone at 647-792-0310 to schedule a consultation.