A Preliminary Exploration of Workplace Privacy Issues In Canada
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University of British Columbia
This report explains the importance of workplace privacy, discusses the inadequate legal protections in Canadian and American jurisdictions, reviews specific areas of concern and concludes with five problems that must be addressed to resolve them. It is intended to provide a framework for analysis by employers, employees and policy-makers alike.
The report identifies privacy as an issue of trust and human dignity. Employees generally associate workplace monitoring with enforcement and punishment that can cause anxiety and depression. In turn, employers monitor to reduce employee theft, ensure productivity, protect against workplace litigation, avoid workplace tragedies and prevent electronic attacks and leaks. Employers are increasingly resorting to more thorough pre-employment checks, access controls, surveillance cameras, Internet, e-mail and network monitoring, and tests and searches.
The authors note that workplaces are increasingly extended into homes, public areas and cyberspace, due to company-provided electronic devices which may be used for both business and personal purposes. This has blurred the line between on-duty and off-duty, and increased the prospect of surveillance. Yet some studies find companies that engage in electronic monitoring and drug testing to be more stressful and less productive workplaces than those that do not.
The report identifies several deficiencies in Canadian laws protecting employee privacy. The Privacy Act only applies to federal government institutions, while PIPEDA does not apply to employee personal information for provincially regulated businesses. The federal Privacy Commissioner, who oversees these two Acts, does not have remedial powers and, under PIPEDA, non-compliant institutions are not identified by name. In addition, privacy laws in Alberta and British Columbia have lower standards concerning the collection of employee information as long as notification is given. The majority of collective agreements in Canada provide no additional protection.
In contrast, Quebec’s Civil Code, Charter of Rights and accompanying privacy legislation exceeds the protections found in PIPEDA. The report cites New South Wales, Australia, as a jurisdiction where workplace surveillance is properly regulated, including mandatory prior notification, a listing of prohibited surveillance and restrictions on covert surveillance.
The authors review specific complaint investigations and case law, covering closed circuit TV (CCTV), mail openings, keystroke monitoring, off-duty surveillance and drug testing. The report concludes that the power imbalance between employers and employees means privacy will not be protected by default. Specific recommendations include a need for greater understanding that workplace privacy issues need not be adversarial as both employers and employers benefit from workplaces based on trust and mutual respect; a need for legislation to protect employees in provinces and territories not currently covered by employment privacy legislation, and pro-active legislation to specifically address surveillance.
Recommendations also include empowering the Privacy Commissioner to publicly identify offending companies, better anticipation of the privacy impacts of new technologies, and greater Canadian research to deal with them.
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OPC Funded Project
This project received funding support through the Office of the Privacy Commissioner of Canada’s Contributions Program. The opinions expressed in the summary and report(s) are those of the authors and do not necessarily reflect those of the Office of the Privacy Commissioner of Canada. Summaries have been provided by the project authors. Please note that the projects appear in their language of origin.
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