MARY O’DONOGHUE
Private Sector - Federal
The Personal Information Protection and Electronic Documents Act (PIPEDA) applies to both federally and provincially regulated organizations in the course of commercial activity from January 2004, unless substantially similar legislation is then in force in a province.

PIPEDA deals with the protection of personal information generally rather than workplace privacy specifically. The Act does not regulate the collection, use and disclosure of all workplace records. For constitutional reasons it applies only to the workplace records of federally regulated employees. Therefore, unless a province enacts privacy legislation regulating workplace personal information of provincially regulated employers in the private sector, this information is not subject to legislative privacy regulation.

PIPEDA regulates the collection, use and disclosure of personal information. This includes the use of workplace monitoring methods that result in the collection of personal information about an identifiable individual. The personal information does not need to be recorded, and so the act applies to oral collections, uses and disclosures. The central rule is that personal information may only be collected directly from the individual concerned, with the knowledge and consent of the individual. The information may only be used for the purpose for which it was collected. There are limited derogations from the consent rule, for example, where there is a breach of contract or a law enforcement investigation. The Privacy Commissioner of Canada issues decisions and recommendations relating to workplace issues. There is some debate as to the extent of the Commissioner’s jurisdiction in collective bargaining situations and this is the subject of current litigation. Arbitrators are also issuing awards based on PIPEDA.

Private Sector - Provincial
British Columbia and Alberta have each enacted legislation that would regulate privacy in the private sector, providing more limited privacy rights to provincially regulated workers.

The Personal Information Protection Act, (B.C.) provides for notice of collection of employee related personal information that is related to the employment relationship, but does not require employee consent (see sections 12 and 13). The employer is subject to reasonableness standards in the handling of employee personal information.

The Personal Information Protection Act (Alta.) governs the collection, use, and disclosure of employee and consumer information in the private sector. As with the B.C. Act, the Alberta Act provides for notice of collection of employee related personal information, but does not require employee consent. The employer is subject to reasonableness standards in the handling of employee personal information.

Ontario issued a draft private sector bill for public consultation that would have covered employee personal information but to date has not introduced any private sector legislation.

Private sector - Quebec
An Act Respecting the Protection of Personal Information in the Private Sector was passed 1994, the first private sector privacy legislation in any jurisdiction in North America. This act provides rules for the collection, use and disclosure of personal information by private sector organizations. It covers employee personal information.

The Quebec Charter of Human Rights and Freedoms, which came into force in 1975, enshrines a right to privacy for residents of Quebec. Amendments to the Civil Code providing extensive rights of privacy were enacted in 1991.

Public sector

Public sector employees, including federal civil servants, provincial employees and municipal and school board employees in most provinces enjoy some privacy protection under public sector privacy legislation. Public sector privacy legislation is often combined with access to government information legislation, so that privacy and access rights are required to be balanced.

Public sector privacy acts are different from private sector privacy acts in one major respect – they are not consent based, although personal information may be collected, used and disclosed with the consent of the individual concerned. However, the consent in most cases is not a necessary condition.

The Acts regulate the collection, use and disclosure of personal information. This would include the use of workplace monitoring methods that result in the collection of personal information about an identifiable individual, where the information is recorded. In most Canadian jurisdictions, employees who feel that government has not complied with the statutory privacy rules may complain to the Information and Privacy Commissioner of the province or to the Privacy Commissioner of Canada. The Commissioners have varying levels of investigative and remedial powers.

Ontario has explicitly removed public sector employee information from the privacy protections of the Freedom of Information and Protection of Privacy Act and the Municipal Freedom of Information and Protection of Privacy Act (s. 65). The employee information is also excluded from the access provisions.

Various statutes which do not have privacy as their primary focus have an affect on the privacy of employees. None of these statutes specifically addresses workplace monitoring, technological or otherwise. Examples are:

· Labour Relations Act (Ontario) (similar acts federally and in other provinces)
http://www.e-laws.gov.on.ca/DBLaws/Statutes/English/95l01_e.htm

This act governs the relationships between employers and employees where the employees are unionized, or seeking to become unionized. Collective agreements under this act sometimes, but not always, contain negotiated provisions for the monitoring of employees. Where a management activity is not explicitly dealt with under an agreement, it may fall under “residual management rights”. Arbitrators have decided that management rights must be exercised reasonably, including where they impact on the privacy of employees. There is a large body of arbitral jurisprudence under labour relations statutes, dealing with privacy issues in the workplace. Many Canadian arbitrators (but not all) have found a right to privacy for employees, balanced by the employer’s legitimate needs.

· Employment Standards Act (Ontario)
http://www.e-laws.gov.on.ca/DBLaws/Statutes/English/00e41_e.htm

This act governs the minimum standards required in the workplace for all employees. Part XIV, sections 68-71 prohibits the use by employers of lie detector tests.

· Occupational Health and Safety Act (Ontario)
http://www.e-laws.gov.on.ca/DBLaws/Statutes/English/90o01_e.htm

Section 63 of this act provides that information obtained respecting occupational health and safety information obtained under the act is confidential, that an employer may not seek to gain access to a health record concerning a worker without the worker's written consent or a court order.

· Ontario Human Rights Code
http://192.75.156.68/DBLaws/Statutes/English/90h19_e.htm
Like the human rights legislation of Canada and other provinces, Ontario’s Code limits the collection of certain personal information in the employment context, where that information may be related to grounds of discrimination. The Commission states it is not acceptable in the hiring process to include questions that relate directly or indirectly to the prohibited grounds of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, same-sex partnership status, family status or handicap. In relation to the hiring process, the Commission states: “Employment-related medical examinations or inquiries that are part of the applicant screening process are not permitted (see the Commission’s Policy on Employment-Related Medical Information).
Alcohol and drug testing in the workplace are not specifically regulated by legislation in Canada. The Canadian Human Rights Act and the Ontario Human Rights Code prohibit employers from discriminating against employees or prospective employees on the basis of "disability". Alcohol and drug addiction have been recognized as disabilities. Any practice that treats an employee worse than other employees because of a disability or that treats an employee as if he or she has a disability and treats them worse than others as a result of this "perceived disability" is not permitted. Thus, human rights codes do not prohibit Employee Drug Testing (EDT) but regulate how it is carried out and prohibit it for certain employees under certain circumstances.

In a drug and alcohol testing case the Ontario Court of Appeal stated that the employer may legitimately take steps to deter and detect alcohol impairment among its employees in safety sensitive positions, and alcohol testing is a reasonable requirement. However, the court also held that requiring the employee to disclose past alcohol problems, no matter how far back in time was not reasonable. The mandatory disclosure was itself too broad, was lengthy and intrusive and was humiliating for the employee. The employer must seek to meet its legitimate objectives in a reasonable manner, so that the policy does not go further than necessary in intruding on the employee’s private self. (Entrop v. Imperial Oil Ltd. 50 O.R.(3d) 18 (2000) Ont. C.A.)

ANON: Can there be a reasonable expectation of privacy in the workplace environment?

MARY O’DONOGHUE: The legal decisions in Canada dealing with workplace privacy have largely arisen in the context of organized labour, where there is a grievance forum in which the employee may raise privacy issues without severing the employment relationship. Labour relations legislation does not usually address privacy issues explicitly, but it provides for a collective bargaining regime which governs all aspects of the employment relationship. Most collective agreements are silent on the issue of the privacy rights of employees. Accordingly, in dealing with issues such as surveillance and searches, the arbitrator looks to provisions of the collective agreement, or to residual management rights to determine whether the management activity can be justified.

Labour arbitration jurisprudence has long recognized restrictions on the exercise of management rights where they may impact on worker privacy. Arbitrators have decided that employee privacy is not an absolute, but is to be balanced with the employer needs. A fact based analysis is required.

“We take it as a starting point for this analysis that individuals do have privacy rights which are not absolute but which must be weighed against other interests which may intrude upon privacy. This principle has long been accepted by arbitrators in Ontario and elsewhere, and is reflected in numerous decisions where the privacy rights of employees have been balanced against the legitimate competing interests of employers” (Toronto Transit Commission v. Amalgamated Transit Union, Local 113, Interim Award, OLRB, Arbitrator Chapman, May 17, 1999)

Unorganized workers in the federally regulated private sector now have a forum to turn to for resolution of work privacy issues – PIPEDA provides that complaints may be made to the Privacy Commissioner of Canada, who has extensive powers of investigation, and who may make findings and rulings. Private sector employees in B.C., Alberta and Quebec may also lodge complaints with the Commissioners in those provinces.

ANON: What forms of surveillance practices do employers use to monitor their employees?

MARY O’DONOGHUE: Employers employ various methods of monitoring employees:

· Keystroke monitoring which can not only measure productivity but also divulge the content of employee communications and Internet use
· Telephone call monitoring
· E-mail monitoring for content and address
· Video-surveillance on and off the job
· Biometrics for clocking on and off the job and for access to premises and computers
· Biometrics for access to computer ordering and access to cash
· Lifestyle and expenditure monitoring – to determine whether employees are living at a level appropriate to their remuneration
· Collection of personal information from employees and others, including health related and performance information
· Alcohol and drug testing, on a per incident or random basis
· Searches of lockers, desks and property

ANON: What are some of the reasons that employers use to justify surveillance practices?

MARY O’DONOGHUE:
· Productivity
· Premises, plant, information and intelligence security
· Quality control
· Employer liability for employee conduct
· Fraud
· Attendance
· Return to work from illness or disability
· Occupational health and safety
· Injured worker compensation disputes
· Employer human rights code obligations with respect to maintaining non-poisoned work environment.
· Investigation of workplace incidents