HRInsider.ca » Can You Secretly Tape Employees You Suspect of Misconduct?

Can You Secretly Tape Employees You Suspect of Misconduct?

You receive a disturbing report that some of your employees are smoking pot on the loading dock. These are serious allegations that need to be checked. You hope they’re not true but, knowing the individuals involved, you suspect they are. So you hire somebody to secretly videotape the employees hoping to catch them in the act. It sounds like a good plan. But be careful. Taping your employees without their knowledge and consent raises big legal issues. You don’t want to go to great pains to create the tape only to find that you can’t even use it as evidence in a lawsuit or arbitration. Nor do you want to end up having to pay damages to the employees for violating their privacy.

This is not to suggest that you can’t conduct secret video surveillance of employees. Under the right circumstances, video surveillance is a legitimate and effective way to catch employees in the act of misconduct. But it can also backfire if you don’t recognize and abide by the legal restrictions. This article will explain what you can and can’t do.

Defining Our Terms

The rules governing video surveillance of employees vary depending on the method and purpose. For example, employers generally have more leeway to install open cameras to maintain workplace security even though the security cameras might also capture the private activities of employees. (For an analysis of open video surveillance of employees, see Insider, Volume 3, Issue 5.) But surreptitious surveillance to catch employees doing something wrong is a completely different animal. This article is about this form of surveillance.

What The Law Says

There are three sets of laws you need to consider when conducting surreptitious surveillance of an employee.

1. The Rules of Evidence

Many legal proceedings involve figuring out the facts of the case. Did the defendant kill the victim? Did the employee fired for theft steal the money? Both sides get to present evidence supporting their side of the story. The Rules of Evidence limit the kinds of evidence that can be “admitted,” i.e., presented to the judge, jury or arbitrator in such cases. The Rules of Evidence are very technical. They also vary depending on the kind of case and tribunal involved. For example, the Rules of Evidence in a criminal trial are much different from the rules in a labour grievance before an arbitrator.

But there’s one fundamental rule of evidence that’s pretty much the same in all situations: Evidence is inadmissible if it was obtained illegally. This rule is something you need to consider when conducting surreptitious surveillance of employees. Your surveillance methods must be completely on the up and up. Many an employer has incurred the frustration of not being able to use tapes of employees to prove misconduct because their surveillance methods were illegal.

Example: An elevator contractor’s construction manager suspected that two employees were smoking pot on the job. He followed them to their truck in a public parking lot and secretly videotaped them getting high. The employees were fired and the union filed a grievance. The Ontario Labour Relations Board ruled that the surveillance was unreasonable and the tape was inadmissible in the hearing [Int’l Union of Elevator Constructors, Local 50 v. ThyssenKrupp Elevator (Canada) Ltd.].

2. Employee’s Privacy Rights

The legal problems that improper surveillance methods create go beyond whether a tape is admissible as evidence. They can also make you liable to the employee. Thus, even if the employee actually does commit misconduct, the fact that you used illegal methods to document it transforms you from victim to villain.

The primary risk of liability stems from the new personal privacy laws that have taken effect across Canada. The federal Personal Information Protection & Electronic Documents Act (PIPEDA) and provincial privacy laws ban the collection, use and disclosure of individuals’ “personal information” without their consent. And if you’re subject to AB, BC, Fed or QC laws, these protections apply to employee information. The privacy laws also explicitly say personal information collected in violation of the law can’t be admitted into evidence.

Making a surveillance tape is considered a form of collecting personal information covered by the privacy laws. And surreptitious taping is, by definition, collection without the employee’s consent. However, it’s not automatically illegal. That’s because there are exceptions to the consent requirement. For example, Section 5(3) of PIPEDA lets organizations collect, use or disclose personal information without consent for “purposes that a reasonable person would consider appropriate” in the circumstances. Section 7(1)(b) spells out that collection without consent is “reasonable for purposes related to investigating a breach of an agreement or a contravention of the laws of Canada or a province.” Provincial privacy laws include similar provisions.

The question thus becomes: When is it “reasonable” for an employer to conduct surreptitious surveillance of an employee? The leading court case on this question is a 2004 ruling by a federal court in which railway employees filed a grievance against their employer for installing surveillance cameras throughout the railyard without their knowledge or consent. The court asked four questions to determine if this was “reasonable”:

Was it demonstrably necessary to meet a specific need?
Was it likely to be effective in meeting that need?
Was the loss of privacy to the people being filmed proportional to the benefit gained?
Was there a way to achieve the same end that would have been less invasive of privacy? [Eastmond v. Canadian Pacific Railway].

Because this is the test that courts and arbitrators would most likely use to evaluate the legality of your own surreptitious surveillance efforts, it’s important to go through each of these questions one by one:

1. Was the Surveillance Demonstrably Necessary to Meet a Specific Need?

Surreptitious surveillance is highly intrusive of privacy rights and it’s only considered demonstrably necessary in limited situations. The general desire to police the workplace isn’t enough. The employer must have some specific indication that wrongdoing is taking place. The suspected wrongdoing must be serious and the suspicion credible. A mere hunch isn’t adequate justification.

Example: Let’s go back to the ThyssenKrupp case where the company secretly videotaped two employees that a construction manager suspected of smoking pot. The construction manager said he had a “feeling” that the employees were up to something because they were acting “oddly.” The arbitrator ruled that this wasn’t a “particularly compelling” reason to tape the employees. A mere feeling isn’t enough to justify secret surveillance, the Board said. Moreover, the employees’ supposedly odd behaviour—wearing their hardhats backwards and failing to wear safety belts and glasses—wasn’t all that odd [Int’l Union of Elevator Constructors, Local 50 v. ThyssenKrupp Elevator (Canada) Ltd.].

2. Was the Surveillance Likely to Meet the Need Effectively?

Even if surreptitious surveillance was a justifiable strategy, courts consider whether the particular methods used were likely to be effective. For example, suspicion of pot smoking on a loading dock might justify planting a hidden camera in the loading dock but not installing them all over the facility, including the employees’ lounge.

3. Was Employee’s Loss of Privacy Proportional to Employer’s Benefit?

The courts essentially weigh the employees’ right to privacy against the employer’s need to know the information, explains Ottawa privacy lawyer Barbara A. McIsaac. Of course, how the scales tip depends on the facts of the particular case. But as a general principle, surreptitious surveillance is generally considered more intrusive than open surveillance, McIsaac explains. So it requires more compelling justification. For example, secret surveillance is generally easier to justify when it targets serious forms of misconduct like violence, theft and workplace safety.

4. Was There a Less Intrusive Alternative?

Secret video surveillance is justifiable only as a last resort when there are no less intrusive alternatives available.

Example: An employee claimed that he needed job accommodations because of a work-related injury. The company suspected that he was faking and hired a private investigator to conduct secret surveillance. The tapes confirmed that the employee was faking. So the company fired him. The employee filed a privacy complaint but the Privacy Commissioner ruled that the surreptitious surveillance didn’t violate PIPEDA. For two years, the company had asked the employee for information about his medical condition. But the employee refused to cooperate. It was only after these less intrusive methods had failed that the company resorted to secret surveillance to get the information it needed [PIPEDA Case Summary #269].

3. The Collective Agreement

You need to be sensitive to the privacy considerations of secret surveillance even if you’re not from a jurisdiction in which personal privacy laws apply to employee information—AB, BC, Fed and QC. One reason for this is that employees might still have privacy rights under common law, that is, law made by judges in court cases as opposed to legislators in statutes and regulations. For example, at least one labour arbitrator has ruled that an employee has “some right to privacy in Ontario” [La-Z-Boy Canada Limited v. Communications Workers of America, Local 80400 IUE].

More significantly, employees may have privacy rights vis-à-vis their employer under their employment contract. This is particularly true when the contract is a collective agreement negotiated by a labour union. Some collective agreements give employees an explicit right to privacy. But even if the contract doesn’t mention privacy, courts and arbitrators may read it in as an implied part of the agreement.

A number of employees have filed grievances against their employers over the conducting of surreptitious surveillance in the workplace. As a result, a body of case law has emerged marking out the boundaries of secret workplace surveillance. Not surprisingly, those boundaries are pretty much the ones established by the federal court in the Eastmond case that we talked about above. However, in the context of labour disputes, the Eastmond factors are applied in a slightly different way:

1. Was There a Compelling Reason for the Surveillance?

This is similar to the first prong of the Eastmond test. Labour arbitrators want to be sure that the employer had a compelling reason for the surveillance. As in the privacy context, the general desire to police the workforce or a hunch that misconduct is taking place isn’t enough.

Example: The ThyssenKrupp case above in which the construction manager’s “feeling” that employees were acting “oddly” wasn’t enough to justify secret surveillance was actually a labour grievance case.

2. Were There Less Intrusive Ways to Get the Information?

This is similar to the fourth prong of Eastmond. Like civil courts and privacy commissioners, arbitrators and labour boards want evidence that surveillance was the last resort.

Example: An employer hired an investigator to secretly tape an employee who claimed he was injured. Sure enough, the video showed the employee moving furniture. So the employer fired him for fraud. The arbitrator ruled that surveillance wasn’t reasonable because the employer had other ways to verify the extent of the employee’s injury [Ross v. Rosedale Transport Ltd.].

3. Was the Invasion of Privacy as Limited as Possible?

This question is similar to the second prong of Eastmond. The scope of the surveillance should be kept to the minimum necessary to accomplish the purpose. The employer should make efforts to ensure that employees not under suspicion and parts of the workplace unaffected by the suspected misconduct aren’t swept up in the surveillance.

Example: An arbitrator ruled that it was “reasonable” for a company to secretly videotape three employees it suspected of smoking pot. The surveillance was “to the point and brief in duration,” the arbitrator explained; it focused only on the suspected misconduct; and taping was done in just one area—outside the back doors of the plant [La-Z-Boy Canada Limited v. Communications Workers of America, Local 80400 IUE].

Insider Says: An employee’s right to privacy—whether express or implied—isn’t the only part of a collective agreement that secret surveillance might violate. Most collective agreements also contain a clause that bars the employer from implementing a new policy or procedure without first discussing it with the union. Courts have ruled that installing surveillance cameras in the workplace without the union’s consent violates this clause. (See, for example, the Ontario case of United Food and Commercial Workers Union, Local 1000A v. Janes Family Foods).

Conclusion

Using cameras to spy on your employees is not automatically illegal. But it’s justifiable only in the narrowest of situations. Your reasons must be compelling, your alternatives non-existent and your taping methods as minimally intrusive as possible. The failure to clear each and every one of these hurdles will make your tape unusable in your own legal case against the employee, and in a twist of cruel irony, render it Exhibit A in the employee’s lawsuit against you.

Insider Source

Barbara A. McIsaac, Q.C., McCarthy Tétrault, 40 Elgin Street, Ottawa, ON K1P 5K6; 613-238-2105; HYPERLINK “mailto:bmcisaac@mccarthy.ca” bmcisaac@mccarthy.ca