Workplace privacy is an evolving and somewhat muddy area of law. In Ontario, our key employment law statutes, the Employment Standards Act and the Occupational Health and Safety Act, are silent on the issue of privacy. Yet surveillance is ubiquitous. Employers often have cameras in the workplace, which end up providing them information about their employees, whether they were seeking it or not. Employers and employees often wonder, is this legal?
PIPEDA and video surveillance
The Personal Information Protection and Electronic Documents Act (PIPIEDA) is a privacy law that applies to private-sector organizations across Canada that collect, use or disclose personal information in the course of commercial activity. PIPIEDA defines a commercial activity as any particular transaction, act, or conduct, or any regular course of conduct that is of a commercial character, including the selling, bartering or leasing of donor, membership or other fundraising lists.
PIPEDA speaks to workplace privacy in that it broadly requires that an organization’s need to conduct video surveillance be balanced with the individuals being surveilled right to privacy.
Cameras in the workplace
The first thing an employer should consider when contemplating installing a camera to monitor a workplace is the purpose. In general, there should be a good reason to conduct surveillance. For example, is there a well-founded suspicion that someone is stealing? Are there safety or security concerns?
Once a purpose is identified employers should consider if there are less intrusive means to meet that same purpose. If so, video surveillance may not be appropriate.
In determining where the camera should go, and what they should be filming, employers should consider the employees’ reasonable expectations around workplace privacy and also keep the purpose in mind. A camera should not be installed in the bathroom, for example, or anywhere else where an employee has a reasonable expectation of privacy. In an open office environment employees likely will not have an expectation of privacy because they are in a common area.
Audio recording employees without their knowledge could run an employer amock of the s.184 the Criminal Code. So surveillance should not include sound.
Notice to employees
Unless providing notice would somehow defeat the purpose – which may be the case if attempting to catch a thief – see s.7(1)(b) of PIPEDA – employees should be provided with notice of the surveillance and details as to what the surveillance will be used for. Employers should also develop privacy and surveillance policies.
If employees are well informed about the use of workplace cameras (placed appropriately and for an acceptable purpose) and employers catch misbehaviour, they are generally going to be free to use that information.