There are many reasons an employer might want to monitor their employees’ workplace computer activities. Naturally, employers do not want their computers used for unlawful purposes or improper conduct such as information theft or harassment.
But what are your rights, as an employer, to monitor your employees’ workplace computer activities?
If you have a reasonable suspicion that the above behaviours are occurring, or if the business handled on workplace computers is of a sensitive nature, you may be able to monitor your employees’ workplace computer habits.
Employees’ Privacy Rights
In Ontario, employees have a general right to privacy in the workplace – including their workplace computer – unless it is explicitly stated otherwise in their employment contract. Because so much meaningful, private and intimate information about an employee is stored and reflected in their computer use, judges have overwhelmingly ruled that employees have a reasonable expectation of privacy when it comes to their workplace computers.
As demonstrated by the Supreme Court of Canada decision in R. v. Cole, it takes truly extreme circumstances to override this right to privacy.
Therefore, computer monitoring should only be employed as a last resort and with the greatest care.
Monitoring An Employee’s Workplace Computer
While there is no formal legislation governing the monitoring of employees’ workplace computers, privacy commissioners and arbitrators have developed various tests to determine if a certain type of employee monitoring is acceptable. Many of these decisions were initially made to address video surveillance but are now being applied to computer monitoring.
Generally speaking, in order to monitor an employee’s workplace computer use:
- There must be a legitimate concern that an offence is being committed and that computer monitoring will be an effective approach to solving this problem.
- Except for rare circumstances, it is necessary to alert employees to surveillance practices and obtain their consent. Individuals should know who is watching and why.
- Surveillance should be as limited as possible. General surveillance for an indefinite time is rarely acceptable.
- Surveillance should be conducted with a specific purpose and only used for said purpose.
Workplace Computer Surveillance
There are many tools available to employers who wish to monitor their employees’ computer habits. There is software that can monitor and analyze online searches, emails and web browsing. There are tools that can track keystrokes and take time-lapsed desktop screenshots.
But be weary, none of these methods distinguish between an employee’s private and business use of their computer and even accidentally recording employee’s banking transactions or personal emails is going to get you in hot water.
Workplace Policies and Practices For Computer Use
Clear and comprehensive workplace policies should be your first defence against employee misconduct on workplace computers.
Most importantly, your policies must balance your need for information with your employees’ right to privacy. Accordingly, your policies concerning computer use and monitoring should be necessary to meet a legitimate business need.
Overly invasive monitoring policies can be costly. As mentioned before, judges do not take kindly to unnecessarily invasive surveillance. Undue monitoring can quickly amount to constructive dismissal or worse.
Workplace Computer Privacy Conclusions
Workplace computer privacy remains an evolving legal area. Employers should consult with an employment lawyer before monitoring their employees in any way to avoid legal risks.
KCY at LAW will give you the security of mind that your workplace computer privacy policies will support your business interests while protecting you against legal action. To book your consultation, call 905-639-0999 or contact us online.