Employee privacy has long been a concern; however, as many employers have pivoted to remote work models over the past two years, digital surveillance has become a more pressing concern. While employers are looking for ways to monitor employee productivity outside of the office, employees have concerns that they may be monitored without their knowledge or that employers will have access to private information through electronic tracking software.
One Canadian politician is calling for more stringent privacy protections for remote employees to shield them from unlawful or intrusive monitoring in response to these concerns. Michael Coteau, an MP in Ontario, has announced plans to hold consultations with employers and privacy experts to discuss how federal privacy laws should be altered to reflect the increasing remote workplace in effect across the country.
Speaking at a press conference, Coteau said, “I believe that in the age of big data, government has the duty to protect the digital privacy of employees and to deal with the current practice of digital surveillance”.
With employee privacy in the digital space making headlines, Alberta employers and employees may wonder what the law currently allows for and prohibits when it comes to employee privacy in the province. Below, we will review the current laws around digital surveillance of employees, the rights of employees and employers, and the obligations of employers to obtain employee consent for the use of such monitoring tactics.
Employee Privacy Rights Under Alberta’s Personal Information Protection Act
While private-sector collection and use of data in most provinces in Canada are governed by the federal Personal Information Protection and Electronic Documents Act (PIPEDA), Alberta enacted its own privacy legislation in 2004, called the Personal Information Protection Act (PIPA). PIPA specifically addresses the collection and use of personal employee information, which is defined as follows:
…in respect of an individual who is a potential, current or former employee of an organization, personal information reasonably required by the organization for the purposes of
- establishing, managing or terminating an employment or volunteer-work relationship, or
- managing a post-employment or post-volunteer-work relationship
between the organization and the individual but does not include personal information about the individual that is unrelated to that relationship;
Further, “personal information” is defined as “information about an identifiable individual”.
Information such as locations, phone conversations, and online habits of an employee may be considered personal information when the information can be tied to a specific and identifiable employee.
How Do Companies Track Employees Remotely Using Digital Technology?
Since PIPA was implemented, the available methods for tracking and collecting employee data have significantly increased. Initially, employers were limited to monitoring employees through emails, timecards, and phone recordings but now, there are seemingly endless ways to monitor employees, providing employers significantly more information than ever before.
Employers can install software onto company-provided computers to track keystrokes, which can indicate how long a person’s computer sits idle, the amount of time a person spends on non-work-related online tasks or browsing. Some companies may install work-provided phones with apps that track location or may ask employees to download monitoring apps or software to their personal phones. There is even software that enables employers to capture images from a computer’s internal camera and use facial recognition technology to analyze an employee’s focus level or mood.
Last year, a woman employed as a custodian with an Alberta elementary school was asked, along with other employees, to download an app called Blip that would allow the employer to track employee movements using GPS. The woman refused to install the app on her phone, citing privacy concerns. Two months later, she was terminated. Her refusal to install the app was noted in the termination letter as one reason for her dismissal.
Consent and the Collection of Personal Employee Information
Under the Personal Information Protection Act, Alberta employers must obtain consent from an employee before collecting personal information, unless the collection is reasonable and is solely for the purpose of “establishing, managing, or terminating” a work or volunteer-work relationship, or managing a post-employment or volunteer-work relationship. It could be argued that monitoring employee productivity or location is done for the purpose of managing an employment relationship, and therefore consent is not required in this situation. However, employers must still make employees aware, in advance, of the collection.
Section 15(1) of the PIPA states that an organization must provide “reasonable notification” that the information will be collected, and the purposes for the collection. Employers who make use of data collection technology or location tracking devices or apps may not do so without the knowledge of the employee. The use of apps or other third-party data collection tools should prompt employers to become fully informed on how the data is stored and used by the third-party, so this can be communicated to employees.
Further, employers should be cautious if considering terminating an employee for cause if they refuse to use such tracking measures unless the employee was made aware of the requirement prior to being hired. If an employer wishes to terminate an employee for refusal to comply with electronic monitoring, it will generally be advisable to do so with reasonable notice, or pay in lieu, to avoid a potentially costly wrongful dismissal claim.
Contact DBH Law in Calgary for Skilled Representation in Workplace Privacy Disputes
The lawyers and staff at DBH Law believe in relationship-building and fostering strong, long-term connections with our clients. This approach allows us to provide tailored, trusted, bespoke advice to help both employers and employees manage their risks and reach their goals.
If you are an employer who is considering terminating an employee, or you are an employee who has been fired, contact DBH Law in Calgary as soon as possible. We rely on our many years of experience to provide our individual and business clients with responsive and concise employment law advice they can trust. To learn more about how we can help you, us online or by phone at 403-252-9937.