Personal relationship between two employees triggers covert video surveillance by employer and raises consent issues

PIPEDA Case Summary #2007-388

[Subsection 5(3), paragraphs 7(1)(b) and 7(2)(d), Principles 4.3 and 4.5]

Lessons Learned

  • In this case, the surveillance could not achieve its purpose without capturing personal information about an individual who was not the subject of investigation.
  • Organizations should develop policies and practices in keeping with the Act to formalize the steps to be taken when deciding to conduct covert video surveillance.

The complainant worked for a trucking company that had a Conflict of Interest Policy about personal relationships in the workplace. Under the terms of this policy, the company reserved the right to assess potentially conflicting relationships on a case-by-case basis. The company suspected that one of its senior officials, a VP, was romantically involved with the complainant. If true, the senior official would have been in violation of the policy. Therefore, the company decided to hire a private investigator to check into the matter. When the investigation confirmed that a relationship existed between the VP and the complainant, the company confronted the senior official with this information and he chose to resign.

During this period the company was also considering several cost-cutting measures involving its employees, including the complainant. Ultimately, the company eliminated the complainant’s position and terminated her employment. While the company stated these actions were a result of cost-cutting, the complainant maintained that her position was not abolished but simply given a new title in order to enable the company to terminate her employment.

The complainant alleged that her employer needed her consent in order to conduct its investigation into the VP’s relationship with her, and also had no right to use or disclose the resulting information without her consent.

The Assistant Commissioner determined that the company could rely on the exceptions to consent when undertaking its investigation of the VP with respect to the Conflict of Interest Policy. Moreover, she reasoned that the company could not conduct the investigation without also implicating the complainant. Ultimately, she determined that both the collection complaint and the use and disclosure complaint were not well-founded.

The following is an overview of the investigation and the Assistant Commissioner’s findings.

Summary of Investigation

The complainant stated that she began working with the trucking firm in 1997, and eventually became Manager of Human Resources (HR). In 2000, an individual was hired as the trucking company’s Vice-President (VP) of HR, and, as such, he worked in the company’s head office. His duties included responsibility for the enforcement of employer policies throughout the organization.

The VP of HR was the complainant’s immediate supervisor until June 2003 when she was transferred to Operations. Although she reported directly to the President of the company in her new position, her job description required her to work in conjunction with the VP of HR, maintaining a “dotted line” reporting relationship with him.

According to the complainant, in August 2003, she moved into the home of the VP of HR as a roommate, and she brought her daughter with her. The complainant maintained that, at the time she became his roommate, she no longer directly reported to him at work. She contended that their romantic relationship developed after the move, and noted that they eventually married. In addition, she stated that she never informed her employer of her change of address.

The trucking firm had a Conflict of Interest Policy about relationships in the workplace. It specified the following:

Guiding Principles
Experience has proven that from time to time, employees of the [Corporation] have family relations, or will develop relationships, of a nature that may be viewed as conflicting with the best interests of the corporation. For this reason, the Corporation wishes to articulate how it will balance its employees’ desires with the realities of business.

Policy
The Corporation reserves the right to assess potentially conflicting relationships on a case-by-case basis, and to protect its interests in those areas where they are deemed to be jeopardized. This will allow the corporation the flexibility to deal with potentially conflicting situations such as a Supervisor-Subordinate relationship, or a Driver-Dispatcher family tie. It will also allow individuals who have or develop relationships that are not potentially conflicting with the Corporation’s best interests, such as a Clerk-Mechanic relationship, to gain or continue employment with [the Corporation].

The Assistant Commissioner noted that the conflict of interest policy came into force long before the events leading to these complaints occurred. The policy did not prohibit relationships between its employees. Rather, it gave the company the right to assess relationships that developed to determine whether they conflicted with the best interests of the company. The policy provided clear examples of both conflicting and non-conflicting relationships. The company pointed out that, as HR professionals, both the complainant and the VP were well aware of the conflict of interest policy, particularly the VP as he was responsible for its enforcement.

According to the company, rumours about a romantic relationship between the complainant and the VP began circulating at the office in the months following the events of September 11, 2001, when the two individuals were stranded in an American city together. The company became concerned about the rumoured relationship because, if true, the VP would be in violation of the Conflict of Interest Policy for which he was responsible. Therefore, the company needed to know the extent of the relationship.

By 2003, the company was considering restructuring the organization. It claimed to be also contemplating several cost-cutting measures involving not only the complainant, but other employees as well. Accordingly, in the weeks leading to a decision about the company’s possible restructure, management asked the VP several times whether he was involved romantically with the complainant. The company stated that the VP denied this relationship. When the company continued to receive information that such a relationship existed, and the VP persisted in denying it, the company decided to hire a private investigator.

Surveillance Report

According to the company, in late 2003, it instructed a private investigator to conduct surveillance on the VP in order to determine the extent of his alleged relationship with the complainant. The company explained to the private investigator that the surveillance was being requested in the context of a potential conflict-of-interest situation. The company contended that, at all times, the VP was the sole focus of the surveillance, and that it never asked the complainant about the alleged relationship because the VP held the senior position—only the potential breach of his employment contract was at issue.

The company noted that it gave the private investigator the addresses it had on record for the VP and the complainant. Additionally, the company provided photographs from the individuals’ personnel files, as well as details of their respective vehicles and license plate numbers.

Surveillance began when the private investigator followed the VP after he departed the trucking facility. However, instead of heading towards the home address provided, the VP drove in another direction and eventually entered the driveway of a different residence. When the VP opened the garage door, the private investigator observed that the complainant’s truck was parked inside the garage.

The company reported that the private investigator conducted several searches of property records and determined that the house at which he had located the VP and the complainant had been owned by the VP since early 2003. The private investigator also discovered that the addresses the company had provided to him for these two individuals were no longer listed in their names—the properties were owned by other people. The company claimed it was unaware of either the VP’s or the complainant’s change of address before it had ordered the surveillance.

The surveillance report provided further details, including property and tax records used to establish residency. In addition to this report, there was a videotape of approximately 16 minutes in length, having no audio signal. The dates shown on the videotape corresponded with the dates quoted in the surveillance report. The videotape captured the subject, in other words, the VP, entering and exiting the trucking facility and his new residence. It also showed the complainant and her daughter entering and exiting the same residence.

The Assistant Commissioner learned that the trucking company had no formal process in place regarding surveillance. There were no guidelines or procedures for managers to follow nor were employees informed that they could be the subject of video surveillance if circumstances warranted. In this case, it was the President of the company who decided to initiate surveillance.

Resignation of VP of HR

The complainant provided this Office with a letter from her employer that pre-dated her privacy complaints. The letter outlined the company’s version of the events leading to the VP’s resignation and the complainant’s termination of employment. According to her employer, after obtaining the surveillance report, a meeting was scheduled with the President, the complainant’s supervisor at the time, and the VP. The company claimed that, during this meeting, a discussion ensued about the proposed company reorganization and the possible re-assignment of the complainant within the company. The VP was again asked if he was involved in a relationship with the complainant, and again he denied it. The company then advised the VP that it had information indicating that he and the complainant were residing together. A discussion followed about his role as VP of HR and the company’s expectation that he would uphold the highest standards with respect to the maintenance of corporate culture, morale, mission, vision and core values, as well as the organization’s policies. Shortly thereafter, the VP stated that he would resign. The company maintained that it did not show the video to him.

Termination of Complainant’s Employment

According to the company, it was never its intention to terminate the complainant’s employment, but rather to determine whether she could be maintained in the organization following the VP’s resignation. This approach was in keeping with its stated Conflict of Interest Policy. However, the job the complainant occupied at the time of the VP’s resignation, was being eliminated with the impending restructuring. Therefore, the company decided to terminate her employment upon elimination of the position. The complainant disputes the employer’s claim, noting that at all times she indicated that she wished to remain with the company. She also disputed the elimination of the position, claiming that it was not abolished but simply given a new name in order to terminate her employment.

The trucking company cited paragraph 7(1)(b) of the Act in support of its collection of the complainant’s personal information without her consent. Under this paragraph, an organization may collect personal information without the knowledge or consent of the individual only if it is reasonable to expect that the collection with the individual’s knowledge or consent would compromise the availability or the accuracy of the information, and the collection is reasonable for purposes related to investigating a breach of an agreement. The company held the position that the VP was the subject of surveillance, not the complainant, and that the information collected was used for the sole purpose of discussions with him in connection with his violation of the Conflict of Interest Policy. It could not collect this information without also obtaining personal information about the complainant.

The company also cited paragraph 7(2)(d) of the Act in support of its use of the complainant’s personal information without her consent. Under this paragraph, an organization may use personal information without the knowledge or consent of the individual provided the information was collected under paragraph 7(1)(b). According to the company, it used the complainant’s personal information in connection with the VP’s violation of the Conflict of Interest Policy. Furthermore, the company maintained that the complainant’s employment was terminated due to restructuring, as evidenced by its organization chart.

Findings

Issued November 20, 2007

Application: Principle 4.3 states that the knowledge and consent of the individual are required for the collection, use, or disclosure of personal information, except where inappropriate. Principle 4.5 stipulates that personal information shall not be used or disclosed for purposes other than those for which it was collected, except with the consent of the individual or as required by law. Personal information shall be retained only as long as necessary for the fulfilment of those purposes. Subsection 5(3) states that an organization may collect, use or disclose personal information only for purposes that a reasonable person would consider are appropriate in the circumstances. Paragraph 7(1)(b) stipulates that an organization may collect personal information without the knowledge or consent of the individual only if it is reasonable to expect that the collection with the knowledge or consent of the individual would compromise the availability or the accuracy of the information and the collection is reasonable for purposes related to investigating a breach of an agreement or a contravention of the laws of Canada or a province. Paragraph 7(2)(d) states that an organization may, without the knowledge or consent of the individual, use personal information only if it was collected under paragraph 7(1)(b).

In making her determinations, the Assistant Commissioner deliberated as follows:

  • In deciding to use such a privacy-invasive means as covert video surveillance for collecting personal information, this Office has determined that an organization must satisfy the following criteria:
    • It must have substantial evidence to support the suspicion that the relationship of trust has been broken;
    • It must be able to show that it has exhausted all other less privacy-invasive means of obtaining the information that it requires; and,
    • It must limit the collection to the purposes to the greatest extent possible.

Substantial evidence that relationship of trust had been broken

  • The company reported that rumours about a relationship between the VP of HR and the complainant began circulating at the company in the months following September 2001. Two years later the company continued to hear rumours about a relationship between the two individuals. However, when the VP was asked repeatedly about it, he denied it.
  • The VP of HR was well aware of the existence of his employer’s Conflict of Interest Policy as he was responsible for its enforcement. In the Assistant Commissioner’s view, the relationship of trust was broken when the VP continued to deny the existence of his romantic attachment with the complainant, while his employer continued to receive information to the contrary. In view of his possible disregard of employer policy, the company concluded that it had no other option but to initiate surveillance against him. The company contended that the surveillance was not initiated against the complainant; rather, its purpose was to determine the nature of the relationship between the VP and her. The Assistant Commissioner recognized that it was impossible to conduct surveillance on the VP for this purpose without implicating the complainant.

Exhausted all other means of obtaining the information

  • The company thought that, as HR professionals, both the VP and the complainant were well aware of the Conflict of Interest Policy and thus knew they had a duty to report their relationship to the employer. However, neither person advised the company of the relationship or the change of address.
  • The VP’s actions concerned the employer as he was the senior member of the company responsible for employee policies, including the Conflict of Interest Policy. The company believed that to have asked the complainant about her relationship with him would have been an invasion of her privacy since she was not the subject of concern. The employer also believed that if it had questioned the complainant about the relationship, she would have denied it in order to protect the VP from potentially losing his job for breaching his employment contract.
  • Moreover, the Assistant Commissioner noted that the complainant never volunteered any information about her involvement with the VP, although she knew he was being asked about it as early as two years before surveillance was undertaken. In view of the delicate situation that the company faced in trying to determine whether its VP of HR was in violation of the company’s Conflict of Interest Policy, the Assistant Commissioner deemed it reasonable for the company to collect and use the complainant’s personal information.

Limiting collection

  • The company reported that the surveillance lasted only five days, just enough time for the private investigator to collect publicly available property and tax records in an attempt to establish residency, and to verify that the VP was living with the complainant. The surveillance report and video were used by the company only to confirm the existence of the relationship and to substantiate the breach of employment contract by the VP, which ultimately led to his resignation. The Assistant Commissioner was of the view that the information was never used for any other purpose and was seen only by the company’s President and the private investigator.

Collection Complaint

  • According to both the company and the complainant, the company’s only attempts to learn about the VP’s relationship with the complainant were during direct questioning of the VP on many occasions, beginning in September 2001. The company confirmed that it had never asked the complainant about her relationship with the VP as it believed this would have placed her in a compromising position in view of his senior job and his continuing denials. The company strongly believed that, as HR professionals, both individuals should have been held to a higher standard in terms of respecting the employer-employee relationship, including upholding employment policies. Furthermore, there was simply no other way to collect the information about the VP without implicating the complainant since the two were intrinsically linked.
  • As the company, in the Assistant Commissioner’s view, had satisfied the criteria for using a privacy-invasive means such as covert video surveillance to collect personal information, it was reasonable to expect that the collection of information with the complainant’s knowledge and consent would have compromised the availability and/or accuracy of the information in connection with the possible breach of the VP’s employment contract. The Assistant Commissioner was not fully persuaded that the complainant would have been candid about her relationship with the VP had she been asked about it by her employer. Under paragraph 7(1)(b), there is no indication that the individual whose information is being collected and the individual who is being investigated must necessarily be one and the same. In this case, the personal information of both individuals was being collected for the purpose of investigating only the VP. Therefore, the Assistant Commissioner determined that the company could rightfully rely on paragraph 7(1)(b) for the collection of the complainant’s personal information without her consent.

Use and Disclosure Complaint

  • The company said that the surveillance was initiated to determine the extent of a personal relationship between the VP and the complainant. At all times, the VP was the subject of the surveillance, and the information collected was used with respect to his employment contract. The VP resigned in late 2003. Following his resignation, there was some discussion between the company and the complainant about her continued employment. The employer reported that the complainant had indicated that she could not continue working there following the VP’s resignation. However, the complainant disputed this statement, claiming that she had stated she wished to remain with the company. The company’s view was that it terminated the complainant’s employment in late 2003 due to a restructuring of its business. The complainant accepted a four-month severance package for her six years of service and eventually found employment elsewhere.
  • The company supplied the Office with additional details in connection with the complainant’s termination, including organization charts before and after the restructuring. The Assistant Commissioner noted that these charts clearly indicate that the complainant’s position was abolished at the time her employment was terminated.
  • The Assistant Commissioner was of the view that the company provided sufficient evidence to demonstrate that the complainant’s termination was not the result of the information revealed in the surveillance report, but instead was the result of restructuring within the organization. Consequently, she determined that the company complied with Principle 4.5 as it did not use the information collected for purposes other than that for which it was collected, namely, to demonstrate a breach of employment contract by the VP, which led to his subsequent resignation. Moreover, the Assistant Commissioner determined that it could also rely on paragraph 7(2)(d) for the use of the complainant’s personal information without her consent.

The Assistant Commissioner concluded that both the collection complaint and the use and disclosure complaint were not well-founded.

Other

The Assistant Commissioner commented that the company should develop policies and practices to formalize the steps to be taken when deciding to conduct covert video surveillance. She pointed out that such a policy should take into account the following:

  • Video surveillance should only be contemplated if other less privacy invasive measures have been taken first.
  • The decision to undertake video surveillance should be made at the appropriate level of the organization.
  • The escalation process should be defined.
  • A report should be created to document the company’s decision.

Note

Please note that the test used in this case, which was decided in 2007, reads differently from what appears in the new covert video surveillance guidance document.  The guidance document was the result of further reflection by our Office and stakeholder consultation.  It sets out the factors that our Office will take into consideration when investigating complaints about covert video surveillance.  

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