July 21, 2015

We live in an information age. The sheer amount of information available on anything or anyone is increasing, and this information is increasingly easy to access. The ease of collecting personal information has led to significant debates about the boundaries of employees’ privacy rights and employers’ legitimate business interests. 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 their reputations. In this session, experienced lawyers will discuss the shifting boundaries in this conflict.

  • Background checks: Does privacy legislation or the common law right to privacy limit the use of criminal record checks, credit checks, or other background checks? What about a “social media check”? Are there legal limitations on these types of checks? Must a prospective employer obtain explicit consent to perform a background check on a job applicant? If employers intend to base hiring decisions on background checks, do they have an obligation to make sure the information they have obtained is accurate? Should unions play a more active role during the interview/assessment stage of the job competition process? What remedy do employees have when they believe their privacy rights have been violated by a background check?
  • Video surveillance, GPS tracking, and biometric identification: What do the latest cases have to say about employers using video, GPS tracking, or biometric identification technologies to monitor, keep track of, and manage their employees, equipment, and premises? What balance are arbitrators and privacy commissioners striking between an employer’s right to manage and control the workplace and employees’ privacy interests?
  • Personal information on the employer’s devices: Does an employee have a reasonable expectation of privacy in personal information such as e-mail messages, text messages, and personal files stored on employer-owned computers or phones? 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? In what circumstances will employers be liable when an employee improperly accesses co-worker, customer/client, or patient information in the possession or control of the employer?
  • Medical information: How do recent developments in privacy and arbitral law affect an employer’s ability to access employees’ medical information? What restrictions are imposed on employer rules requiring medical information for the administration of sick leave, attendance management, or short-term or long-term disability programs? What recourse does an employee have if he or she believes the employer’s demand for medical information is excessive or otherwise inappropriate? What remedies can an employee seek if the employer improperly discloses his or her medical information to people who do not genuinely need access to it?