There are many varied and valid reasons as to why employers incorporate monitoring in the workplace. Whether it is the more widespread video surveillance cameras installed in many convenience stores or the seemingly nefarious GPS tracking in employees’ phones, employers can effectively monitor their workplaces without running afoul of their privacy obligations.
With the widespread use of new and affordable technology, the BC Information and Privacy Commissioner has published new guidance on this topic.
BC’s Personal Information Protection Act (“PIPA”) sets out how private organizations can collect, use, and disclose personal information, including that of its employees. While PIPA legislates employees’ right to privacy in the workplace in BC, considering common law principles associated with the employment relationship and privacy, these guidelines are also helpful for employers who operate in provinces without privacy legislation.
The guidelines highlight considerations for employers implementing the following types of monitoring:
- Video + Audio Surveillance: this is seemingly ubiquitous in today’s world. Some organizations employ these technologies to catch and deter criminal activity and other inappropriate behaviour. However, if employees are caught on camera, whether purposefully or not, it is a collection of their personal information. There is a high threshold for employers to use video surveillance on its employees: it must be reasonable for the purpose of creating, managing, or terminating an employment relationship. An organization ought to first explore less privacy-invasive methods. Organizations have been found to have offended the law in taking excessive video without authorization and in failing to limit retention or secure it from unauthorized access.
- IT Monitoring: while software tools to protect against malware and unauthorized access of certain systems are often necessary in the workplace, they can also lead to the over-collection of personal information about employees. Organizations are within their rights to ensure that employees are working while at work and not spending inordinate amounts of time shopping online or watching cat videos. However, organizations must notify employees that they will be monitored and why their personal information is being collected. In Investigation Report F1501, the Commissioner found that the employer could only collect personal information that was directly related to and necessary for the protection of its IT systems and infrastructure.
- GPS Tracking: in some circumstances, organizations can track employees through GPS monitoring either through installing an application on employees’ phones or installing GPS in vehicles. Regardless of whether the phones or vehicles are company-issued, this information is generally considered personal information of the employee associated with the device. While continuous monitoring of employees outside of work hours would likely be considered excessive and invasive, there are ways in which GPS tracking can be justified if implemented in a reasonably limited manner. For example, in OIPC Order P12-01 an employer installed GPS in its company vehicles to ensure employee safety as well as to facilitate client billing, which was permissible. This decision, and others, highlights the importance of context and purpose for the monitoring, reasonable limitations, as well as appropriate notice requirements.
Private organizations collecting personal information for purposes reasonably required to establish, manage, or terminate an employment relationship, may give notice to their employees. Otherwise, BC, Alberta, and federal works and undertakings must obtain consent.