Clerical Privacy Rights

8/6/2019 Clerical Privacy Rights

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Employee Privacy Rights: Where

Technology Goes Will Law

Follow?

- Key Questions from the Digital Frontier -

Emma Phillips

Sack Goldblatt Mitchell


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Proliferation of new technologies

Technologies for

communication

(computers, cell phones,black berries, laptops)

Technologies for

surveillance (screenshots, cookies,

keystroke monitoring,

GPS, biometrics)


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An Evolving Area of Law

Can Employees be disciplinedfor expressing views on theinternet outside of theworkplace?

Do Employees have a right to privacy?

Can Employers monitor use of internet and e-

mail?

What rights do unions have to

communicate with members

over workplace e-mail?


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Do Employees have a right to privacy?

Ontario: no broad-basedstatutory right to privacy(but FIPPA, MFIPPA, PIPEDA)

Unionized employees:

Reasonable exercise ofmanagement rights /management rules must be

reasonable

Common law of the

unionized workplace: EEs

have a free-standing, inherent

right to privacy based on

principles of human dignity


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ease. Every employee has occasion to pause in thecourse of his work to take a breather, to scratch his

head, to yawn, or to otherwise be himself withoutaffecting his work. An employee, with reason, wouldhesitate at all times to behave, if his every action isbeing recorded on TV.

- Puretex Knitting(Ellis, 1979)

The device at hand [video

surveillance] is not only

personally repugnant to the

employees, but it has such an

inhibiting effect as to prevent

the employees from

performing their work withconfidence and


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Ultimately: is the surveillance

reasonable?

Balance between ERs legitimate business interests

and EEs privacy interests:

Is the surveillance demonstrably necessary to meet a

specific need?

Is it likely to be effective in meeting that need?

Is the loss of privacy proportional to that need?

Is there a less privacy-invasive way of achieving that end?


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Can Employers monitor use of e-mail and

internet?

Generally: ERs can

monitor communications

over ER-owned equipment

Must advise EEs ahead of

time that being monitored,

what is acceptable use,

potential for discipline

Should be obvious to EEs

that some conduct is not

acceptable (e.g.

pornography)


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Problems!

Blurring of work and private life (black berries, cell phones,laptops used to facilitate overtime, travel, work from home)

Technology is no substitute forsupervision (just because its there, doesntmean it can be used Parkland Librarycase)

EEs do have reasonable expectation of privacy with

other ER-owned equipment (telephone, locker , lunch pail)

Information collected may be

misleading (e.g. web page left open, useof internet for research)

Use of personal e-mail on ER

computer?


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Can Employees be disciplined for

expressing views on the internet outside

of the workplace?

What jurisdiction does Employer have over views

expressed in cyberspace? (facebook, blogs, e-mail list-serves, etc.)

Apply traditional test for off-duty conduct? (damage to ERsreputation, EEs ability to carry out job duties, or damage to

workplace relations)

How do we test for harm? (difference between expressingviews around the water-cooler vs. sending an e-mail? If something is

on the internet, will it necessarily be widely read?)


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Can unions use Employer servers to

communicate with members? Analogy with bulletin boards and distribution of union

literature?

S. 70 of the OLRA: ER cannot interfere with the

administration of a union or representation of EEs by aunion

Mere use of e-mail system is not tantamount todisruption of workplace (CBC case)

E-mail is the natural gathering place for collective action;law needs to be reinterpreted in light of the changingpatterns of industrial life (dissent in Newspaper Guild case,NLRB, 2007)

But: If Union is permitted to use the ERs server, danger of

ER monitoring communications?


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Best protection:

BARGAINING!

Documents

Clerical Privacy Rights