WORKPLACE PRIVACY: Video Surveillance Cameras and Employee Privacy

Installing surveillance cameras in your workplace might provoke disputes with your employees, including:

• Complaints under privacy laws including the federal Personal Information Protection and Electronic Documents Act (PIPEDA) and its provincial counterparts; and
• Union claims that use of cameras is an unreasonable exercise of management’s rights in violation of the collective agreement.

The validity of these claims depends on factors like the province in which the workplace is located and what that province says about workplace privacy; what the collective agreement says; why the employer wants to use the cameras and what, if any, measures the employer takes to minimize intrusions on employee privacy associated with using the cameras. Here’s what HR directors need to know to make sound legal judgments about whether to install cameras in their own workplace.

Defining Our Scope

The rules used to determine the legality of using surveillance cameras in the workplace differ depending on whether the use is open or surreptitious. Let’s start out by discussing open use of surveillance cameras in the workplace. We’ll analyze the ground rules governing surreptitious use in a future issue.

EMPLOYEE RIGHTS UNDER PRIVACY LAWS

The laws that most affect the legality of using surveillance cameras are personal privacy laws that limit the collection, use and disclosure of individuals’ personal information. For federally-regulated employers, this law is PIPEDA. The federal PIPEDA law also applies to employers in the three territories. If you’re regulated by provincial laws, you must determine if your province has a personal privacy law. Not all provinces do.

Provinces that Have Personal Privacy Laws

There are at least three provinces-AB, BC and QC-that have personal privacy laws. Like PIPEDA, these laws restrict the collection, use and disclosure of “personal information” about an individual. In AB, the protections also apply to “personal employee information and in BC they apply to “employee personal information.” In QC, the definition of “personal information” is so broad that it covers employees’ activities while at work. (ON has a personal privacy law covering medical information.)

Under privacy laws, the use of surveillance cameras to film employees is considered a form of collecting, using and disclosing employees’ personal information. But that doesn’t mean that it’s illegal; it just means that the employer’s use of surveillance cameras in the workplace is subject to restrictions:

Use must be reasonable. In general, employers can collect, use and disclose personal information only for purposes that a reasonable person would consider appropriate under the circumstances. What’s reasonable or appropriate? The Federal Court of Canada in Eastmond v. Canadian Pacific Railway, [2004] F.C.J. No. 1043, June 11, 2004, established a four-part test to answer that question:

1. Is the use of surveillance cameras demonstrably necessary to meet a specific need?
2. Is it likely to be effective in meeting that need?
3. Is the loss of privacy to the people being filmed proportional to the benefit gained?
4. Is there a less privacy-invasive way of achieving the same end?

In general, courts and arbitrators are likely to consider the use of surveillance cameras for safety and security purposes to be reasonable.

Example #1: The Privacy Commissioner of Canada concluded that a locomotive company’s use of surveillance cameras to safeguard employees’ health and safety after a number of safety incidents was reasonable [PIPEDA Case Summary #264, Privacy Commissioner of Canada, Feb. 19, 2004].

Example #2: The AB Information and Privacy Commissioner concluded that an oilfield maintenance service company’s use of surveillance cameras to address concerns about theft and property damage was reasonable [R.J. Hoffman Holdings Ltd., AB Information and Privacy Commissioner, Investigation Report P2005-IR-004, May 13. 2005].

But use of surveillance cameras for safety and security purposes has also been found to be unreasonable. For example, the Privacy Commissioner of Canada ruled that a meat processing plant’s use of surveillance cameras to ensure food safety wasn’t necessary or even effective in monitoring product safety [PIPEDA Case Summary #290, Privacy Commissioner of Canada, Jan. 27, 2005]. Surveillance is more likely to be found reasonable for safety and security purposes if you can show that you had a problem with theft or safety and that you tried unsuccessfully to solve the problem using other methods.

In contrast, the use of surveillance cameras to monitor employee performance or productivity is to be considered unreasonable. For example, in the R.J. Hoffman Holdings Ltd. case cited above, the AB Commissioner ruled that the oilfield maintenance service company’s use of the cameras to manage employee performance was unreasonable. And the Privacy Commissioner of Canada concluded that an internet service provider’s use of surveillance cameras to manage the productivity of its sales, marketing and technical support staff was unreasonable because there were less privacy-invasive ways to do so [PIPEDA Case Summary #279, Privacy Commissioner of Canada, July 26, 2004].

Employers May Need Employees’ Consent

In most cases, employers need consent to collect, use or disclose employees’ personal information. But there are exceptions. So even if your company’s use of surveillance cameras is reasonable, you’ll still need either to get employees consent or be able to show that an exception applies. And because getting employees’ consent is often impractical, you might have to rely on a consent exception. There are two such exceptions that employers have successfully relied on to justify their use of surveillance cameras without employee consent:

• Getting consent would compromise the availability or accuracy of the information collected; and
• The collection of the information is for the purpose of investigating violations of the employment agreement or the law.

Employers Must Notify Employees

The privacy laws also require you to notify employees that surveillance cameras will be used in the workplace. For example, in R.J. Hoffman Holdings Ltd. above, although the AB Commissioner ruled that the use of surveillance cameras was reasonable for security reasons, it also found that the company had failed to adequately notify employees of the use of such cameras. The operations manager claimed that he’d told employees about the cameras, but that notification wasn’t documented. And there had been no formal, written notification.

Provinces That Don’t Have Personal Privacy Laws

In provinces without personal privacy laws, PIPEDA does apply to personal information collected for “commercial activities,” such as personal information about customers but not to personal information about employees. That’s because while the federal government has authority to regulate trade, commerce and inter-provincial activities, the provinces regulate labour and employment matters. So applying PIPEDA to the employer-employee relationship would be an unwarranted intrusion by the federal government on the legal powers of the provinces. The result: PIPEDA doesn’t apply to employee information and thus doesn’t apply to the use of surveillance cameras to record the activities of provincially-regulated employees.

It could be argued that such employees do have a “common law right” to workplace privacy. A common law right is one that’s implied by courts in cases even though it’s not specifically created by a law or a constitution. If workplace privacy was a common law right, employees in provinces not subject to PIPEDA or provincial privacy law could still challenge their employer’s use of surveillance cameras in the workplace. But it’s not clear whether such a right actually exists.

Conclusion

Next week, we’ll talk about whether open use of video surveillance cameras in the workplace is permissible under a collective agreement. And we’ll explain what measures you can take to avoid liability either for a privacy or collective agreement violation.