Can Your Employer Spy On You At Work?
By Mark Swartz
The smartphone supplied by your employer can spy on you. So can your company’s laptop and email account. Phone call monitoring and video surveillance are also possible concerns.
Is it legal for your employer to spy on you at work? It depends on where you’re employed (e.g. provincial statutes vary, federal employers differ from private sector).
Common sense suggests taking precautions regardless. Your privacy is at risk in the workplace.
Many Ways To Be Monitored
Tracking staff is easy when using employer-supplied equipment. Browser history reveals visited websites – if you aren’t being tracked in real-time. Smartphones are geo-traceable and have phone number recall.
Employers can view all files stored on their electronic networks. They can also access company-supplied social media accounts, and public posts on your personal versions. Laptops can have keyboard stroke recorders. Video cameras at work capture all sorts of activities.
Privacy Rights In Federal Employers
At the federal level The Privacy Act covers employee information in federal government institutions. The Personal Information Protection and Electronic Documents Act (PIPEDA) applies to employee information in federal works, undertakings, and businesses.
Employers often make a commitment in collective agreements to observe privacy practices. There is also some arbitrated case law that recognizes related workplace rights (especially in terms of monitoring, drug and alcohol testing, medical testing and/or searches of employees and their property).
Where privacy rights are recognized by arbitrators, they are usually viewed with reference to the collective agreement. The test for acceptable monitoring is:
- Whether the surveillance is reasonably required in light of the circumstances;
- Whether it is conducted in a reasonable manner; and
- Whether there are no alternatives available
Private Sector Non-Unionized Employers
For non-unionized, provincially-regulated employers outside of Alberta, British Columbia and Quebec, there are no legislative restrictions or clear guidelines respecting monitoring employees. However, even when using corporate equipment, the court may rule that employees have some reasonable expectation of privacy.
One previous case indicates that implementation of video monitoring may constitute constructive dismissal on the basis that it creates a hostile work environment.
In addition, the law may recognize a right to bring a civil action for damages for invasion of privacy, or “intrusion upon seclusion.” An employer that intentionally intrudes – without warning – on the seclusion of staff or their private concerns, is liable for invasion of their privacy (if the invasion would be highly offensive to a reasonable person).
Generally speaking, employers have the right to monitor usage of their own equipment. But they should advise staff as to what personal information will be collected, used, and disclosed, and for what purposes.
Any employer seeking to monitor employees should have a clear written policy, which has been signed and agreed to by employees. Such a policy would establish that the employees should not have any expectation of privacy, and that the employer’s use of the information may be for performance, conduct and workplace security monitoring.
Protecting Yourself From Being Spied On At Work
For employees, do not assume that any information you access or share on a company-owned piece of equipment will remain confidential.
If you surf inappropriate websites, or send personal texts (or emails) through the corporate server, watch out. The employer can review your actions. They could impose discipline if you have been cyber-slacking or engaged in other unacceptable conduct.
So think twice before sending personal email from a work account, or accessing sensitive medical information on your desktop computer at work. Use your own equipment and accounts, on personal time, to avoid being tracked.
If You Feel Your Privacy Rights Are Being Violated
Is someone listening to your phone calls at work? Have surveillance cameras been posted without notice?
Otherwise they can reach out to a Privacy Ombudsman or Commissioner if there is one in the province.
Lastly an employment lawyer may be of help with employee rights. It turns out that courts and tribunals tend to be quite protective of employees.