Workplace Privacy Issues

Written on behalf of Peter McSherry

Use of workplace computer equipment

It has now become quite common for an employer to place restrictions on the use of the company’s information technology (IT), including computers, smartphones, and other electronics that employees may receive in order to carry out their duties Typically, any restrictions on use are outlined directly in an employment agreement, a related technology use policy, or similar. While it will vary from agreement to agreement, prohibitions and restrictions may include, for example, a restriction or ban on the use of such equipment for personal use, including downloading of documents and programs from external sites.  Such agreements also usually allow the employer the unlimited right to search the employee’s documents and browsing history.

There are good reasons for the employer to seek protection over its IT.

It is debatable, however, as to whether the employer may gain access to an employee’s personal information which may be stored, rightly or wrongly, on the employer’s hardware even with an agreement that appears to grant the employer the right to do so.

Supreme Court Speaks to This Issue

The leading case that explores this issue is from the Supreme Court of Canada[1], which arose in a criminal context.

The employee at issue, Richard Cole, was a high school teacher, and was permitted to use a  school board laptop computer for personal purposes. He stored personal information on the computer which included nude and semi-nude photographs of a female student.

The IT department of the school eventually discovered these images. The computer was given to the police by the school who then accessed the employee’s personal files without a warrant. This raised the issue of whether the police were allowed to do so since the Canadian Charter of Rights and Freedoms , which applies to government officials, prohibits unreasonable police searches.

This, in turn, led to an assessment of Cole’s reasonable expectations of privacy in the  contents of the computer since the Charter is also intended to protect such interests.

In this case, the school board did allow for personal use of work laptops but also maintained a policy which stated that personal email remained private with the stipulation that “all data and messages generated on or handled by board equipment are considered to be the property of [the school board]”. Additionally,  the school’s “Acceptable Use Policy”, which applied to students and teachers, warned the users not to expect privacy in their files.

Reasonable Expectation of Privacy

The Supreme Court stated that in circumstances where personal use of workplace computers is permitted or reasonably expected, employees have a reasonable expectation of privacy in any personal information which they store on the machine. Written technology use and similar policies may diminish, but do not eliminate, a user’s expectation of privacy.

The Cole case did involve the actions of the police, clearly a government actor and subject to Charter protections, unlike a private employer. The Court stated that it would defer to a future case the consideration of the rights of the employer to conduct a search of the computer.

The direction, however, of the Court to offer protection to the personal information of employees is clear:

Computers that are used for personal purposes, regardless of where they are found or to whom they belong, “contain the details of our financial, medical, and personal situations” (Morelli, at para. 105). This is particularly the case where, as here, the computer is used to browse the Web. Internet-connected devices “reveal our specific interests, likes, and propensities, recording in the browsing history and cache files the information we seek out and read, watch, or listen to on the Internet” (ibid.).

This sort of private information falls at the very heart of the “biographical core” protected by s. 8 of the Charter.

In a Nutshell

It is likely that whatever a written employment agreement or clearly intended policy document may state, such words will not allow for an infringement of personal rights. Equally, ownership of a device such as a computer or a smart phone will not conclusively deny the employee right to expected privacy.

Claim for Breach of Privacy

A private employer could be sued for breach of the expected privacy of an employee for reading an employee’s private files and email based on the Ontario Court of Appeal decision in Jones v Tsige, absent such an agreement and likely, given the words of the Supreme Court in Cole, even where such an agreement is in place.

Let Legal Advice Guide Your Actions

This issue is yet another example of a situation where the words of a contract do not govern your actual legal rights. If you are the victim of over-reaching investigations of an employer of your workplace digital records, get advice to understand your rights and remedies. More importantly, base your day to day use of a workplace computer or other equipment on the assumption that your employer may see whatever you type and wherever you go on the net. It is the wiser course of conduct.

If you are an employee seeking legal advice in this situation, contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation

[1] R v Cole