Someone’s Watching: Navigating surveillance technology and employee rights

By Sue Sodek

Installing cameras in your work vehicles might be done for a myriad good reasons. You may want to encourage safe driving habits, provide customers with real time service notifications, or defend yourself in the event of a complaint or accident. But how does this level of scrutiny impact your staff, and what level of privacy are your employees entitled to while they work?

Understanding privacy rights in Canada can be a tricky business. There’s no hard and fast rule that blankets each and every employee across all provinces and work functions, and court rulings often lag when it comes to emerging technologies. The very word “surveillance” can carry negative connotations, erode morale and damage trust. Successfully navigating the balance between your need to know and their right to privacy is possible − you just need to be prepared.

This involves making a plan, and writing and communicating a policy before starting surveillance. After some time has passed, a final piece to consider is evaluation. Initially, you identified this as a solution to a problem. Has your system had the intended impact? Does the problem still exist, or is your system alleviating it? Has there been any pushback or are employees still on board? If you’ve done your job right, you’ve solved some problems and found some balance, while fostering employee trust and goodwill.

 

WHAT PRIVACY RIGHTS DO CANADIAN WORKERS HAVE?

The short answer is very few. Legislation for private businesses cross Canada is patchy and only a few provinces have enacted actual Privacy Acts. At the moment only British Columbia, Alberta and Quebec have legislation covering the private sector. The overriding principle to know is that with a few exceptions, no one can really expect privacy while working. There are protections in place around specific locations, such as locker rooms and bathrooms; bodily autonomy (as in random drug or alcohol testing); or time (for example, when on breaks, or pre- or post-shift).  Beyond that, employees can reasonably expect to be under supervision at all times while undertaking work tasks, whether on their employer’s premises or out on calls.

That said, as an employer you do not have unlimited powers when it comes to collecting information about your employees. There is a fine line you must walk in ensuring your business is protected and allowing for the employees need for some trust and autonomy. The finer points are too numerous to detail here, and you should consult a human resource professional or labour lawyer before embarking on any major system implementations. But as a general overview, you should know that when legal challenges arise, courts will first examine the reasonableness of the information you are collecting.

 

What does pass the litmus test?

Generally, a wide variety of surveillance is allowable at work, given:

  • You can demonstrate a legitimate business need for the method you are using
  • The surveillance is carried out in a reasonable and non-discriminatory manner
  • You aren’t relying on more personal aspects of the information collected to make decisions and non-discriminatory manner

 

Let’s take a closer look at these points:

 

Legitimate Business Needs – The Why

There are a host of reasons why an employer would install surveillance equipment and “spying” on their employees isn’t necessarily top of the list. Better tracking of vehicles may help you map out more efficient service routes. Having dash cams installed may reduce your insurance premiums. You may wish to use footage for training or performance management, or to ensure your employees are following company guidelines. And of course, you may need footage to protect yourself if there are damages to property, or for other safety and security related concerns. Ask yourself: what problem are you hoping this will solve? Are you clear about your reasons for the plan you want to implement? Are there less invasive means to gather the information you need?

 

Reasonable and Non-discriminatory – The When and the How

This is a little more straightforward: your chosen surveillance method should be applied equally, to all employees, at the same times and in the same manner. If you are considering dash cams, will all vehicles be similarly equipped, or just one employee’s? How will you limit the range and use of the cameras once in place? How will footage be stored and will it be deleted in a timely manner? Taking the time to first answer these questions will help you immensely when it comes time for implementation. Generally, assuming your employees are made aware, and you are collecting information to be used for a stated purpose, you can move forward with your plan.

 

Personal Information and Decision Making – The What

Would you ask your employees if they were deeply religious, had mental health issues, or if they cheated on their taxes, and then use this as grounds to promote or fire them? Of course not. Doing so would be illegal and land you in a world of trouble. Know that if you happen to capture personal information about your employees in the course of surveying their work day, you are legally prohibited from making business decisions based on this information. Limiting the places and times you collect information to only that which directly impacts your business will ensure your compliance with privacy laws.

 

Policy creation and ensuring employee buy-in

Implementing a new method of surveillance can come with the hidden cost of lost employee trust and lowered morale. Once you’ve done your due diligence and know your why, when, how and what, you’ll need to sensitively communicate these changes to your staff, answer their questions and ensure you have their buy-in.

Before approaching these conversations, sit down and work out a clear policy on any surveillance you will undertake. Start with a brief outline as to why you’re making this change, keeping the benefits you hope to gain (increased efficiency, safety and so forth) in mind. Be as specific as possible, like listing the locations or field of view for cameras. Include details around when the surveillance is in effect and who is in charge of reviewing, storing and disposing of any recordings, to increase worker peace of mind. Make sure to designate who employees should approach with any questions. Your employees may feel anxious or have queries they don’t wish to discuss in front of colleagues. Leaving the door open to discussion will go a long way in reassuring your workforce this will be a change for the better.

Once you’ve communicated the policy and answered any questions, have staff sign off on a consent form to demonstrate they understand the ins and outs of this new policy. This is a crucial step in protecting you and your business in case of any future issues.

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