All About Information

On January 27, 2010 I’ll be giving a presentation entitled “Everything You need to Know About Workplace Privacy” at the HRPA’s 20X Annual Conference and Trade Show.

I designed the presentation today around the following topics:

• Employee privacy rights – the patchwork quilt
• How to run an internet background check
• Why and how your acceptable use policy needs to change
• Yes, you can transfer that data to the U.S., but…
• How to manage the risk of communicable diseases in the workplace

I’m looking forward to the opportunity to touch on these hot issues and have also left lots of time for questions. If you’re an HR professional who’s attending the conference please consider joining my session.

I’ve posted two pieces  on privacy over at slaw.ca in the last two weeks. The first is a critique of the federal, B.C. and Alberta privacy commissioner’s H1N1 guidance. The second, from today, is an interview I conducted with Melanie Bueckert, author of the recently published book, “The Law of Employee Monitoring in Canada.” Check them out when you can!

On August 31st, Arbitrator Watters held that video surveillance evidence taken from a hidden camera installed in a long-term care facility resident’s room was admissible in a termination arbitration.

Many labour arbitrators will balance employer and employee interests in determining whether to admit surveillance evidence. This case is notable because the parties engaged in a dispute about whether the reasonableness test used to effect this balance includes a “no less intrusive means” component. Arbitrator Watters held that it does not – the test is a reasonable grounds/reasonable means test, though consideration of other options may support the grounds for surveillance.

The National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 127 and The Municipality of Chatham-Kent (Riverview Gardens) (Re), [2009] O.L.A.A. No. 424 (Watters).

Today, the Supreme Court of Nova Scotia upheld a labour arbitrator’s order that required the Halifax Regional Municipality to cease and desist from recording calls to its call centre for quality monitoring, coaching and dispute resolution purposes.

In resolving the employer’s application for judicial review, Wright J. displayed a remarkably honest application of the “reasonableness” standard of review by disagreeing with the arbitrator’s weighing of management versus employee interests but nonetheless upholding his decision as reasonable.

Though it did not affect the outcome of the application, Wright J.’s more legally significant finding was on whether the employee voice recordings at issue were protected as “personal information” under the applicable privacy legislation. He stressed that the recordings captured non-sensitive employee work product and, in the context, this feature of the recordings was more significant than anything personal that the characteristics of an employee’s voice might reveal (such as age or race).

It cannot be over emphasized that the recording of calls made to the call centre agents on the Primary Line is of a non-personal nature. The call centre agents answer inquires from the public about various municipal matters. There is no component of personal information in that. It is not recorded information about an identifiable individual within the meaning of s.461(f). Rather, the content of the calls, as earlier noted, is about such routine inquires as transit service times, tax bills, by-laws, parking information and municipal services. In my view, the question of whether voice recording in the fact situation at hand constitutes “personal information” cannot be decided irrespective of the content of those calls. Here, the content of those calls is undoubtedly of a non-personal nature made in the course of the performance of the job duties of these employees.

Halifax (Regional Municipality) v. Nova Scotia Union of Public and Private Employees, Local 13, 2009 NSSC 283.

I presented today on managing employee use of social media applications at the Human Resources Forum of the Information Technology Association of Canada. I followed a presentation on social media use in human resources by the wonderful Connie Crosby and an enlightening presentation by Sheldon Silverman on the system AMD uses to mitigate the risks associated with its innovative social media marketing program.

My slides are below, and if you click through to my Slideshare page you can download a version with notes. It’s similar to presentations I’ve done in the past but I’ve added a couple slides to identify the complex issues related to wage and hours claims.

On August 27th, Arbitrator Bill Kaplan held that an employer breached its collective agreement by implementing random alcohol testing for safety-sensitive positions. The employer attempted to argue that Arbitrator Michel Picher’s strong pronouncement against random testing in his December 2006 Imperial Oil case was wrongly decided though it was upheld on a review for patent unreasonableness by the Ontario Court of Appeal in May. Mr. Kaplan disagreed:

In my view, the Court of Appeal made clear that it accepted Arbitrator Picher’s analysis and conclusions based as they were on the facts, the language of the collective agreement and the synthesis of the arbitral authorities all set out within a context of balancing of interests. Even if Arbitrator Picher’s conclusions were not judicially endorsed, having carefully reviewed all of the authorities relied on by counsel, I find Imperial Oil persuasive and almost on all fours with the facts of this case.

The Picher decision suggests that a general policy of unnanounced random alcohol or drug testing will only be justifiable if there is evidence of a significant problem in controlling the impact of drug and alcohol use on the workplace. In this case, Mr. Kaplan said, “There is no evidence of a problem to be adressed.”

Petro-Canada Lubricants Centre (Mississauga) v. CEP, Local 593, 2009 CanLII 44405 (ON L.A.).

I presented at an OBA privacy conference back in early June but held off posting a short paper I wrote for it entitled, “Employer access to employee e-mails in Canada.” The paper argues that there are signs that the traditional “no expectation of privacy” approach to addressing employer access to employees’ stored communications is waning, leaving employers with a choice between giving clearer notice to employees or, alternatively, implementing purpose-based controls to protect employee privacy.

This is a hot topic north and south of the border, and was so even before the Superior Court of New Jersey Appellate Division issued its much discussed decision in Stengart v. Loving Care Agency on June 26th.

Stengart is about whether privilege is waived in solicitor-client communications that are stored on an employer’s system. Our own leading case on this issue is Daniel Potter, which suggests that privileged communications made by employees on employer systems deserve greater protection than other “private” employee communications. Despite this distinction, the reasoning in Stengart is very broad, very pro-privacy and is further reason for employers to pay heed to the issues I raise in my paper.

For a copy of the full paper, please click here. And please feel free to contact me or comment below with your feedback and ideas.

There is a division in Canadian arbitral jurisprudence on whether an arbitrator can (or should) refuse to admit surveillance evidence where the surveillance does not meet a standard of reasonableness. On June 15th, Ontario Arbitrator Stephen Raymond held that relevant surveillance evidence is admissible notwithstanding an alleged breach of privacy. He said:

I do not see that the method by which evidence is obtained has any impact on its admissibility before me. It is either relevant evidence in which case I must admit it or it is not. How it was obtained is of no concern to me. For example, let us assume a situation where a person breaks into a manager’s office and while in the office finds a document that is relevant to a question before an arbitrator. Clearly the action of the person breaking into the office could be pursued criminally and if that person was an employee (bargaining unit member or not) it might be pursued civilly. The illegality of the method by which the document was obtained, however, would not be a consideration in respect of its admissibility before an arbitrator. If evidence that is obtained in a clearly illegal way can be admitted, how is it that evidence that is obtained in a way that offends the sensibilities of many arbitrators but is not illegal is not admissible? The simple answer is that it is admissible.

I also note that many arbitrators who have excluded surreptitious videotape surveillance evidence seem to base their decision, in part, on the nature of the evidence. I do not see how the nature of the evidence impacts its relevance. No arbitral authority has been provided which supports the proposition that the observations of a private investigator hired to observe the actions of an employee is inadmissible or that there be an exclusion of that investigator’s notes of the observations made. Furthermore, if the investigator takes pictures of the employee, such evidence is admissible. It is only the videotape (moving pictures) that seems to be the type of evidence in which arbitrators say the employer has gone too far.

I also am of the view that the right to privacy, however it may arise, is not germane to this issue. If the right exists, and I take no view at this time as to whether it does or does not, it can be pursued for its infringement. If an employee has such a right and this right has been infringed then, in the context of a collective agreement, it can be pursued as a grievance and a remedy for the infringement of the right can be fashioned by an arbitrator.

The employer was represented by Mike Fitzgibbon of Thoughts from a Management Lawyer.

Re Ready Bake Foods Inc. and United Food and Commercial Workers International Union, Local 175, [2009] O.L.A.A. No. 308 (Raymond).

The Alberta Court of Appeal’s June 22nd judgement in Poliquin v. Devon Canada Corporation is not a privacy judgement, but contains some very strong dicta supporting employers’ interest in controlling employee use of their computer systems.

The case is about an employer that terminated a long-service supervisor for, among other things, sending and receiving pornographic and racist e-mails. In holding the employee’s wrongful dismissal claim ought to be dismissed summarily, the Court of Appeal made the following remarks:

It is important to situate a document like the Code of Conduct in the larger workplace context. Employers have the right to set the ethical, professional and operational standards for their workplaces. Doing so not only falls within an employer’s management rights, it also constitutes an integral component of corporate good governance. The workplace is not an employee’s home; and employees have no reasonable expectation of privacy in their workplace computers. It therefore follows that while employers may permit employees limited personal use of workplace computers, the employer is entitled to restrict the terms and conditions on which that use may be permitted. Devon did just that. Employees are permitted to use Devon’s equipment “for limited personal use”, but such use must be in compliance with the Code of Conduct: App. Key Evidence, Vol. 1, A83. The Code of Conduct expressly provides that prohibited use of e-mail includes “[s]ending…pornographic, obscene, inappropriate or other objectionable messages or attachments via e-mail to anyone”: App. Key Evidence, Vol. 1, A83. Further, harassment is defined under the Code of Conduct as including “[v]isual conduct such as pornographic or derogatory…e-mails…”: App. Key Evidence, Vol. 1, A80.

Employers have good reason to be concerned about the misuse of their equipment and resources in order to access, receive and disseminate pornographic or racist material. The potential for harm to an organization flowing from this kind of misconduct is great. It can easily poison a work environment, thereby denying equal employment opportunities to others: Backman v. Maritime Paper Products Ltd., 2008 NBQB 219 (CanLII), 2008 NBQB 219, 67 C.C.E.L. (3d) 261 at paras. 9-11. Since work is an essential aspect of an individual’s personal life, an employer owes obligations to all employees in its organization. It cannot turn a blind eye to discrimination or harassment in its workplace: Menagh v. Hamilton (City), [2005] O.T.C. 898 at paras. 46 & 287 (S.C.J.), aff’d 2007 ONCA 244 (CanLII), 2007 ONCA 244. As the Ontario Court of Appeal recognized in Gonsalves v. Catholic Church Extension Society of Canada 1998 CanLII 7152 (ON C.A.), (1998), 164 D.L.R. (4th) 339 at para. 10, 39 C.C.E.L. (2d) 104, an employer “has a duty to all the employees both to end the [sexual harassment] and to alleviate its impact upon the employment environment.” See also Tellier v. Bank of Montreal reflex, (1987), 17 C.C.E.L. 1 at 12 (Ont. Dist. Ct.), where the Court recognized that an employer has “a heavy responsibility to protect its employees.”

If an employer fails to act, it faces a significant risk of actions by employees who are subjected to discrimination or harassment – and properly so: see for example Robichaud v. Canada (Treasury Board), 1987 CanLII 73 (S.C.C.), [1987] 2 S.C.R. 84 , 40 D.L.R. (4th) 577; Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (S.C.C.), [1989] 1 S.C.R. 1252, 59 D.L.R. (4th) 352; Bannister v. General Motors of Canada Ltd. 1998 CanLII 7151 (ON C.A.), (1998), 164 D.L.R. (4th) 325 at para. 20, 39 C.C.E.L. (2d) 91 (Ont. C.A.); and Tellier at p. 12. Therefore, employers are fully justified in taking proactive steps, including the adoption of codes of conduct, to curtail and prevent improper conduct.

There are other negative consequences an employer may suffer when an employee misuses its equipment and resources for pornographic or racist purposes. The reputation of an employer in the business and wider community can be seriously compromised when even one employee engages in this kind of behaviour, particularly where that employee holds a senior supervisory position. It can also adversely impact on the work – and work ethic – of the employee in question given the very real risk that the misuse will occur in whole or in part on the employer’s time. And then there is the threat to a company’s information technology systems. Computer operating systems can be infected with worms and viruses introduced through inappropriate accessing of pornographic and racist websites or through receiving tainted material downloaded from these websites. In addition to these concerns, this kind of misconduct increases the risk that other ethical and professional boundaries will, by reason of the employer’s perceived tolerance of the original misconduct, be more readily crossed, not only by the affected employee, but by others within the organization, or even perhaps outside it (like suppliers to a company).

In summary, an employee’s misuse of a workplace computer for pornographic or racist purposes negatively affects an employer’s professional, ethical and operational integrity. Employers are not required to tolerate the misuse of their computers and Internet access any more than they are required to put up with serious incidents of dishonesty by employees. When an employee steals money from an employer, the theft and resulting damage is at least confined to that employee. But where dissemination of pornographic or racist material using the employer’s computer or Internet access is concerned and especially where the employee’s e-mail address includes the employer’s identity, this is not necessarily so. In the information technology world today, e-mail can be disseminated to many inside and outside an organization with the click of a mouse. Accordingly, the harm done may well be far more serious and pervasive. This reality substantially increases the risks to employers flowing from the misuse of their equipment and Internet access for improper purposes. For these reasons, an employer is entitled not only to prohibit use of its equipment and systems for pornographic or racist purposes but also to monitor an employee’s use of the employer’s equipment and resources to ensure compliance.

Please forgive the lengthy quote, but it is a fairly powerful excerpt and handy to us management lawyers.

For Michael Fitzgibbon’s excellent discussion of Poliquin and the availability of summary judgement in wrongful dismissal cases, see here.

Poliquin v. Devon Canada Corp., 2009 ABCA 216.

I was at the Osgoode PDP Electronic Evidence seminar today. There were great presentations all around, and I’ve included my notes at this Twitter feed. I was very honoured to co-present with John Gregory, whose knowledge of electronic evidence issues is deep. Our presentation is really about the law of e-mail, with a mix of content on access to e-mail on corporate systems, e-mail production and e-mail admissibility and weight. Here are the slides.

We also provided a handout with case citations and a summary sheet on the CGSB Standard on Electronic Records as Documentary Evidence.

I hope this is useful!