Privacy in the Workplace
August 21, 2019
Understanding your rights and your employer’s rights when it comes to the expectation of privacy is important.
In the outside world, invasions of our privacy are constant. Internet cookies, security cameras and cell phone videos all infringe on our right to keep our business to ourselves.
Inside the workplace though, these invasions become even more difficult to avoid. In particular, employees may wonder: Does my employer have the right to search my personal property?
Searching Employee Possessions
Reasonable Expectation of Privacy
An employer does have an interest in maintaining control over the operation of the workplace. This control, however, cannot come at the expense of the privacy rights of its workers. When these two interests are in conflict, an Arbitrator will analyze whether the search in question is/was reasonable under the circumstances.
The Arbitrator will look at the employee’s reasonable expectation of privacy, and the employer’s reasonable suspicions of wrongdoing.
For example, in York Region District School Board v Elementary Teachers’ Federation of Ontario, 2018, CanLII 73669, the Arbitrator found that it was a violation of privacy rights when the employer searched through an employee’s laptop. Even though the employer provided the laptop to the worker, employees were permitted to use the computer for personal matters as well. For this reason, the Arbitrator found the employee had a reasonable expectation of privacy. Had the employees not been allowed to use the laptops for personal use, the Arbitrator may have decided differently.
High Risk Workplaces
There are exceptions to an employee’s reasonable right to privacy. For example, some workplaces are particularly vulnerable to certain security issues, like theft. In Teck Cominco Metals Ltd. v. U.S.W.A., Local 480, 127 L.A.C. (4th) 267, the outcome favoured the employer. An Arbitrator determined that the employer had justifiable reasons to conduct vehicle searches even where it did not suspect an individual employee. This was due to the high risk of theft of precious metals in the workplace.
Be Aware of your Privacy Rights
The following are some general guidelines to help with protecting your privacy in the workplace:
- Be cautious about what you access when using an employer-provided computer or device, especially where you are not authorized to use it for personal matters;
- It is best not to bring any item onto the employer’s premises that you would not want them to find. If you must bring an item onto the employer’s premises, know that there are circumstances where your employer may be permitted to search your locker – they are less likely to be permitted to search your car or your person, and;
Keep in mind, the employer will have a greater right to infringe on an employee’s privacy in the following circumstances where:
- Employees regularly have access to items of high value (particularly where employee theft is an issue);
- The workplace contains dangerous machinery, such that employee intoxication could result in serious harm (particularly where this is an established issue in the workplace), and;
- An employer has reasonable grounds for believing that an employee has engaged in theft, is in possession of an illegal/banned substance or has engaged in other misconduct.
Every situation is different.
If you believe your privacy rights have been violated, bring it to the attention of your Union Steward and Union Representative. While employers are allowed to violate privacy rights in some circumstances, they do not have an unlimited right to do so.
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