Our clients often wonder how private their work computers actually are. For many, the answer is troubling.
The issue of privacy rights in the workplace can be obscure. It is a developing area of employment law in Canada far from being resolved.
With the advent of technologies in our day-to-day lives, it is very common for people to blend their personal lives with their work lives. The result: private and personal information is saved, cached, and downloaded on devices that actually belong to employers. Does that mean that your employer has the right to access your private information?
In a recent Supreme Court of Canada case it was acknowledged that employees have a legitimate expectation of privacy regarding the use of their work computers and the private information stored on them. That case dealt with a teacher who was criminally charged with possession of child pornography after images were found on his work computer. Ultimately, the photos were used as evidence at trial.
Despite recognizing that workers do have privacy rights, the extent of these rights isn’t always clear. Recent cases suggest that employers can remove a person’s expectation of privacy by warning them that their work-related activities, including their use of company devices, can or will be scrutinized. In other words, they can remove the implied expectation of privacy by specifically advising staff that they reserve the right to monitor their use of company property. However, an employer is unable to completely eliminate an employee’s right to expect a certain degree of privacy at work. Some reasonable limits do exist. The extent of these limits, however, remains unclear. It depends on the particular circumstances of every case.
To avoid any doubt, employees should strive to keep their private affairs separate and apart from their work. When this is impossible, we recommend that particular care be taken to mark information as “personal & private” and ideally protect it with a password. This will certainly enhance a court’s view of someone’s expectation of privacy over specific information.
The lawyers at Singh Lamarche LLP have vast experience advising employees and employers on an array privacy issues in the workplace. If you have questions about privacy at work, our employment lawyers would be pleased to provide you with guidance and reliable legal advice on this developing area of employment law.