Privacy in the Workplace in the Digital Age

The use of security cameras to monitor employees in the workplace (and how this impacts an employee's reasonable expectation of privacy) has been a topic of litigation in the labour and employment context for decades in Canada.

Now, with the prevalence of computers, laptops and personal hand-held devices in every workplace, the amount of digital information generated by employees - and an employer's ability to monitor that information - has expanded greatly. Examples of third-party surveillance programs that take screenshots, record keystrokes, and monitor emails and online searches are well known. While employees have an expectation of a degree of privacy in their use of company-owned devices and software, employers still have the right to ensure that company devices and software are used properly and in a way that complies with the law and the company's expectations.

The best tool for employers to use is an acceptable use policy. This type of policy sets out clear expectations for all parties and permits employers to be able to enforce the proper use of technology in the workplace. Good acceptable use policies will clearly indicate what level of privacy an employee can expect, what behaviour is prohibited and what the consequences are for non-compliance. If the acceptable use policy is reasonably drafted and takes these factors into account, it will have a greater chance of being upheld by the courts.