Cyberslackers and Cybertrackers: Status update on internet use and privacy in the workplace

Technology now allows employers to monitor employees both on and off the job, creating debates about the boundaries of employees’ privacy rights. The recent media furor over employer demands for employees’ Facebook passwords demonstrates how contentious this issue can be. Employees expect to have a sphere of privacy and autonomy into which an employer cannot intrude, while employers are concerned about the impact employees’ online activity can have on employer reputations. Questions also arise about the degree to which employers can use technology to monitor employee activity in the workplace. In this session, Lancaster’s experts will discuss the limits of personal privacy rights in respect of the use of technology, both inside and outside the workplace.

• Privacy Rights vs. Property Rights: What is the status of an employee’s right to privacy? Do employees have a free-standing right to privacy in Canadian law? Does an employee have a reasonable expectation of privacy in information contained on employer owned and issued devices? Will personal information stored on smart phones, laptops or other devices that employees are expected to take home attract greater protection than information stored on computers that do not leave the workplace?
• Computer Surveillance at Work: Are employers permitted to monitor employees’ computer/internet use at work to ensure that employees are being productive and not spending work time on personal activities, such as shopping, booking vacations, posting on Facebook, etc.? Can an employer install specialized software to track internet and computer use? Is there a difference between blocking access to certain websites and recording all an employee’s activities on a work computer? Under what circumstances will personal computer use at work constitute “time theft?” Do decision-makers treat cases of employees engaged in relatively common time wasting activities, such as posting on Facebook, web-surfing, etc., differently from cases of employees accessing inappropriate material, such as pornography at work?
• Social Media: Does an employee have a reasonable expectation of privacy in his or her Facebook page? Blog? Twitter account? Website postings? E-mail? Text messages? Does it matter if the employee restricts access to his or her social media pages through privacy settings or “invitation-only” safeguards? Can an employer run ‘social media checks’ of potential job applicants? Can an employer demand access to an employee or job applicant’s Facebook account? What policies can an employer legally create around the use of social media? What are permissible and impermissible elements of such a policy? Does an employer’s tracking of employees’ social media use amount to the collection of personal information subject to privacy legislation?
• Off-Duty Conduct Online: Are employers obliged to act if an employee is being harassed or maligned by other employees online if the alleged harassment doesn’t involve employer technology and takes place during off-duty hours? What type of off-duty online conduct will irreparably damage the employment relationship such that dismissal is justified? How will decision-makers assess whether online posts or videos harm an employer’s reputation/damage the employment relationship? Do employees have any freedom to criticize employers online during their off-duty hours?