October 8, 2014

Advances in technology have created a brave new workplace, blurring the boundary between work and home life and heightening the tension between an employee’s privacy rights and an employer’s legitimate interests in managing the workplace. Employers are increasingly concerned about cyberloafing – the use of company internet for non-work related purposes – yet monitoring employee computer use raises a host of privacy concerns. In this session, Lancaster’s experts will navigate contentious issues related to privacy and the use of technology in the workplace, including:

  • The cyberloafing phenomenon: How widespread is cyberloafing in Canadian workplaces? Is the phenomenon limited to millennial employees? What is the impact of cyberloafing on productivity? Does cyberloafing have any workplace benefits? Is cyberloafing a sign of low employee engagement? Insufficient workload?
  • Privacy rights in the workplace: Do employees have a reasonable expectation of privacy in information contained on employer owned and issued devices (e.g. workplace computers and smartphones)? Will personal information stored on devices that employees take home (e.g. laptops) attract greater protection than information stored on computers that never leave the workplace? Does an employee have a reasonable expectation of privacy in his or her Facebook page? Blog? Twitter account? Personal email? Text messages? Does it matter if the employee restricts access to his or her social media through privacy settings?
  • Computer monitoring and auditing: How far can employers go in conducting surveillance of employees’ use of computers at work? Does an employer require “probable cause” (such as a slip in productivity) before it can monitor or audit an employee’s computer use? Can an employer install specialized software to track internet and computer use? Are there risks that information gathered in this way will be inaccurate or interpreted incorrectly? Is there a difference between blocking access to certain websites and recording all of an employee’s activities on a work computer? Does monitoring an employee’s computer use at work amount to the collection of personal information that may be subject to applicable privacy legislation? Is an employer entitled to access an employee’s social media, such as his or her Facebook page, if it suspects the employee may be misusing sick leave? If employers contemplate relying on evidence gained from an employee’s computer or social media, what considerations should they keep in mind regarding preserving and authenticating that evidence?
  • Discipline and discharge: Under what circumstances, if any, will personal internet use at work constitute “time theft” justifying dismissal? Do decision-makers treat cases of employees engaged in relatively common activities, such as posting on Facebook and web surfing, differently than cases in which employees access inappropriate material, such as pornography at work? Should employers treat these situations differently? Can an employer dismiss an employee for downloading unauthorized software on a company computer? What type of off-duty online conduct will irreparably damage the employment relationship such that dismissal is justified? How do decision-makers assess whether online posts or videos harm an employer’s reputation/damage the employment relationship? Can an employer discipline an employee for negative comments about the employer posted on a blog or social networking site? What if the employee disparages a co-worker online?
  • Workplace policies: Can an employer diminish or remove an employee’s expectation of privacy through a workplace policy on acceptable computer or internet use? Is it permissible for an employer to ban all personal use of employer-issued technology? Is it practical or advisable to do so? If not, how should reasonable and effective limits be set? What are some model workplace policies for acceptable computer, internet and email use?