Employment Law: A Report on Employee Privacy Rights in Canada

This report provides an overview of employee privacy rights within the framework of Canadian employment law. It examines the balance between employee privacy and employer rights, covering various aspects such as the collection, use, and disclosure of personal information. The report delves into relevant legislation, including the Personal Information Protection and Electronic Documents Act (PIPEDA) and provincial laws, highlighting the differences in privacy protection across different provinces. It discusses common workplace privacy issues, including electronic monitoring, video surveillance, and drug testing, and analyzes the rights and obligations of both employers and employees. The report also explores the concept of informed consent, the use of internal policies, and the impact of collective agreements on employee privacy. Finally, it addresses specific scenarios like email and phone call monitoring, and the use of security cameras, providing a comprehensive understanding of employee privacy rights in the Canadian workplace.

Running head: EMPLOYMENT LAW
Employment law
Name of the Student:
Name of the University:
Author Note

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Introduction
Employers in the workplace have some rights related to privacy. They are subjected to
many laws related to privacy in Canada. Some of the statutes that apply to information about
employees in businesses and federal undertakings are the Personal Information Protection Act
and the Electronic Documents Act (laws-lois.justice.gc.ca, 2018) However, several provinces in
Canada have different legislation safeguarding the privacy rights of employees in the workplace.
Employees are expected to have a certain extent of privacy at work even when they work in the
premises provided by the employer or using the equipment provided by the employer for doing
the task assigned to him. However, to contradict the aforementioned statement it can be said that
while working for someone, employees are required to give up some of the rights of privacy
(Geist, 2015). It is expected for employers to demand basic information related to the identity of
employees for the purpose of providing them with pay and benefits and ensuring that the work
assigned to them is being done efficiently. However, how much privacy should be provided to
the employees is the subject matter of assessment.
Discussion
In recent times instances of infringing the privacy rights of employees have occurred
more than ever before. Examples of infringement of privacy rights of employees include:
accessing personal files of employees, video surveillance, accessing web browsing records of
employees keystroke monitoring of employees and genetic testing (www.priv.gc.ca, 2018). The
information required by employers about the employees is limitless however it is the
responsibility of the employer to justify that the information collected by them is used for
appropriate purposes. Employers are required to balance the need to collect information with the

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rights of privacy of the employees in order to ensure that a healthy work environment is
maintained in the workplace.
Workplace privacy can be considered to be an area of employment area which is very
complicated in nature and can arise in many situations which involve the usage collection and
disclosure of personal information. Some of the disputes related to rights of privacy of employee
in the workplace involve unauthorized usage, collection and disclosure of medical records of
employees, personal email of employees and history of the websites visited by such concerned
employee (John, Knyazeva & Knyazeva, 2015). Often clashes arise between the right of privacy
of the employee and the employer’s interest of safeguarding the business from being negatively
impacted by the actions of the employees.
Legislations governing privacy rights of employees in Canada
Different provinces in Canada have different legislations which aim to protect and
regulate the employee’s rights of privacy. However in Ontario no specific legislation exists
which governs the privacy rights of the employees. However, Occupational Health and Safety
Act provides some degree of protection. Where there is no provincial legislation the federal
legislation will be applicable. The federal legislations in Canada relating to the privacy rights of
employees is the Personal Information Protection and Electronic Documents Act (Personal
Information Protection and Electronic Documents Act, 2018). The aforementioned act governs
how information of employees which is personal can be used or collected or disclosed.
The other legislations that govern the rights of privacy of employees are: The personal
information act which is applicable to the employers of Alberta, British Columbia, Civil Code
of Quebec and the Charter of Human Rights Freedoms of Quebec (Légis Québec, 2018).

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Several judgments of court cases have reflected on the provisions of the common law relating to
the rights of privacy of the employees. According to the provisions of common law it is to be
said that employers must develop internal policies about how personal information of employee
is to be obtained. However such policy of the employer must be in compliance with the factors as
enumerated below:
 Such policy of obtaining personal information is consistently applied through out the
workplace
 Employers must inform the employees about the existence and any changes to the
aforementioned policy
 Advice of the employees must be taken at the time of formulating the policy.
 All the employees are required to be served a copy of the policy
 Employees must be encouraged to read the policy
Employee’s Privacy
Every employee must ensure that a proper balance is maintained between the employee’s
right of privacy and the employer’s need of collecting relevant information (Chang, Liu & Lin,
2015). If the employer aims to collect information about employees, it might seem to be an act of
infringement of the privacy rights. Therefore employers must ensure that:
 The reason of collecting the information about the employee is disclosed to him.
 Collection or disclosure of personal information of the employees must be done with the
consent of the employees.
 Only relevant information which is required for providing benefits to the employee or for
increasing the efficiency of the job done by the employee should be collected

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 Personal information of employees collected is used only for the purposes that such
information was collected for. An Employer can keep or disclose the personal
information of employees only if such employees give free consent to do so to the
employers. An employer can also disclose personal information of employees if he feels
that he has a legal obligation to do so.
 Employees have direct access to their personal information and such employees should
be able to challenge the completeness and accuracy of their personal information.
Conflict between Employee’s privacy rights and right of the employers to manage the
information
Employers have legitimate rights for acquiring personal information from employees as they
need to have proper information of those they hire, address the specific performance of the
employees and ensure that safety is maintained in the workplace (Willborn, 2014). Employers
have the right to monitor the operations of the employees by means of electronic monitoring
devices to prevent leaks of confidential information of the organization and to stop harassment in
the workplace.
Employers also have the right to delve into private affairs of the employees if they suspect
that the actions of the concerned employee are likely to adversely affect the workplace. However
treating employees as suspects and therefore getting involved in their personal matters cannot be
justified on the ground that they might to do something harmful to the organization (Weber,
2015). Employers must weigh the benefits of monitoring the employees in the office premises
and in office time against the cost of trust of the employees and their morale (Clément, 2016).
Employers can best prevent workplace harassment by providing training to the workforce about

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the consequences of harassment in the workplace, formulation of effective anti harassment
explicit policy and taking appropriate actions when the instances of harassment are reported to
them rather than depriving all the employees of their right of privacy.
Formulating effective policies and creating expectations
According to Lippert & Walby (2016), employees in the workplace must be told by their
employers what personal information of is to be collected and for what purpose. They should
also be told how their personal information is to be used and disclosed in the future. Employees
must be informed about the policies on telephone, internet and mail use which are adopted by
their employers of for the purpose of monitoring their activities. An employer is obligated to
inform an employee who has been under continuous surveillance and is also obligated to tell
such employee the reason for keeping him under surveillance.
Right of employers to track emails or phone calls of employees
Employees at the workplace generally do not have any privacy in their email accounts.
The basic principle behind this is that the email which is used by the employee at work is
provided by the employer therefore he has access to the same (Bernal, 2014). The employees can
access the emails on the computer provided by the employer, therefore the employer naturally
has the authority to monitor every activity of the employee. Employees also have the right to
track the phone calls of employees for purpose of quality control. However, employers must stop
monitoring the phone calls of employees once they become aware that such phone call is
personal (www.priv.gc.ca, 2018) If there is an existing policy about monitoring the phone calls
of employees, an employer can monitor the call long enough to assess whether such call is

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personal. An employee can face disciplinary action if it is found that he has used the resources of
the employer to make personal phone calls.
Employees who waive of their rights of Privacy
An employer may provide advice to the employees that they do not have any right of
privacy and that they should neither have any expectation of privacy (Lippert & Walby, 2016).
Employers can state that giving up privacy of the employees is an important condition of the
employment. Employees who accept such terms of employment will have no right of privacy and
will be held to have consented to the unlimited collection, usage and disclosure of their personal
information (Pohler & Willness, 2014). However it is questionable whether such consent is
voluntary, well informed and clear. In order to assess whether the employee had freely consented
to waive of his right of privacy, it is important to ask for their consent to explicit and justified
usage, collection and disclosure of personal information. In many workplaces the rights of
privacy of employees are enforceable under the collective agreements.
The right of employers to monitor the actions of employees through security cameras
It is fair and employers have the right to monitor the actions of employees through
security cameras (West & Bowman, 2016). However, the act of monitoring the actions of the
employees cannot be invasive in particular. Installing security cameras in washrooms and
dressing areas are strictly not allowed.

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Rights of employers to drug test employees
Employees might find drug test to be invasive of their rights to privacy especially when
such employees do not involve in abusing illegal drugs (Geist, 2015). Employers still possess the
right to drug test employees. Since the employment of the employee is at will of the employer,
such employer can deny retaining the employee if the employee in consideration refuses to take
the drug test.
Conclusion
Thus in conclusion it can be said that employees have the right of privacy. Such rights of
the employees are protected by federal legislation as well as by provincial legislations. However
rights of privacy of the employees at times can conflict with the rights of the employers to
collect, use and disclose personal information of the employees which are required to be
possessed by the employer for the purpose of creating employment benefit for such employees
and for ensuring that the work assigned to the employee is being carried out efficiently. Thus
employers are required to formulate policies for obtaining, using and disclosing information of
employees.

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Reference List
Bernal, P. (2014). Internet privacy rights: rights to protect autonomy (No. 24). Cambridge
University Press.
Chang, S. E., Liu, A. Y., & Lin, S. (2015). Exploring privacy and trust for employee
monitoring. Industrial Management & Data Systems, 115(1), 88-106.
Clément, D. (2016). Human Rights in Canada: A History. Wilfrid Laurier Univ. Press.
Geist, M. (2015). Law, privacy and surveillance in Canada in the post-Snowden era (p. 350).
University of Ottawa Press/Les Presses de l’Université d’Ottawa.
John, K., Knyazeva, A., & Knyazeva, D. (2015). Employee rights and acquisitions. Journal of
Financial Economics, 118(1), 49-69.
Légis Québec. (2018). Legisquebec.gouv.qc.ca. Retrieved 9 March 2018, from
http://legisquebec.gouv.qc.ca/en/showdoc/cs/C-12
Lippert, R. K., & Walby, K. (2016). Governing through privacy: Authoritarian liberalism, law, and
privacy knowledge. Law, Culture and the Humanities, 12(2), 329-352.
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privacy knowledge. Law, Culture and the Humanities, 12(2), 329-352.
Personal Information Protection and Electronic Documents Act. (2018). Laws-lois.justice.gc.ca.
Retrieved 9 March 2018, from http://laws-lois.justice.gc.ca/eng/acts/P-8.6/
Pohler, D., & Willness, C. (2014). Balancing interests in the search for occupational legitimacy: The
HR professionalization project in Canada. Human Resource Management, 53(3), 467-488.

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Privacy in the Workplace - Office of the Privacy Commissioner of Canada. (2018). Priv.gc.ca.
Retrieved 9 March 2018, from
https://www.priv.gc.ca/en/privacy-topics/privacy-at-work/02_05_d_17/
Weber, R. H. (2015). The digital future–A challenge for privacy?. Computer Law & Security
Review, 31(2), 234-242.
West, J. P., & Bowman, J. S. (2016). Electronic surveillance at work: An ethical
analysis. Administration & Society, 48(5), 628-651.
Willborn, S. L. (2014). Notice, Consent, and Nonconsent: Employee Privacy in the
Restatement. Cornell L. Rev., 100, 1423.