New Rules for Employee Use of Workplace Computers: Implications of the Supreme Court’s decision in R. v. Cole

On October 19, the Supreme Court of Canada issued its ruling in R. v. Cole, a decision making major changes to the law of workplace privacy in Canada, particularly as it affects employee use of workplace computers. In a special audio session on November 20, Lancaster’s panel of legal experts will discuss the implications of the Court’s ruling for employers and employees. Questions to be addressed will include the following:

• • The “Reasonable Expectation of Privacy:” What did the Supreme Court say about an employee’s “reasonable expectation of privacy” in relation to use of an employer’s computer and computer networks? To what types of information and in what circumstances does it apply? What circumstances or contexts may limit the employee’s expectation of privacy? What factors will be considered?

• • The Employer’s Right to Access Information: How can employers ensure that they will continue to have the right to access information and monitor computer and internet use for legitimate business purposes? What role will employer policies and practices play in defining the rights of employees? What role do “operational realities” or workplace customs play? What information should employers give to employees in order to make it clear that the employer retains a right to access its computer systems for legitimate purposes?

• • The Use of Personal Information: Will the Supreme Court’s decision affect how employers can use personal information collected from workplace computers? Do the purposes for which information will be used have to be communicated to employees in advance? Are some uses permissible while others are not? How can employers/employees know in advance which uses will likely be seen as legitimate?

• • Public vs. Private Sector Employees: How will the Court’s decision affect employers and employees in the public vs. private sectors? What differences exist between the two? What will be the likely impact of the decision for employees/employers in the private sector? Does this depend upon the relevant/applicable privacy legislation in place?

• • Computer Surveillance and Monitoring at Work: How, if at all, has the decision in Cole changed employers’ rights to conduct computer surveillance and monitoring in the workplace? Are employers still permitted to monitor employees’ computer/internet use at work, and if so for what purposes? To carry out routine maintenance and protect the integrity of their systems? To detect fraud, misconduct, or other misuse by employees? To ensure that employees are being productive and not spending work time on personal activities, such as shopping, booking vacations, posting on Facebook, etc.?

• • Privacy and 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? How will the Court’s decision affect the law in this area? Are employers entitled to create policies in these areas, and if so will they be effective? What impact will the ruling in Cole have on the privacy rights of employees using the internet or accessing social media, when they are not at work? Will the Supreme Court of Canada’s pronouncements strengthen employee privacy rights in these areas?

• • Broader Implications for Workplace Privacy Law: What is the current status of an employee’s right to privacy? Do employees now have a free-standing right to privacy in Canadian law? Will this affect how arbitrators and courts view employee privacy rights in other contexts, such as video surveillance at work, access to employee phone records, biometric data? Will Cole affect the ability of employers to conduct background checks, criminal record checks, drug and alcohol testing?

• • Adjudication of Privacy Disputes: How will the Supreme Court’s decision affect the approach taken by arbitrators and other adjudicators to workplace privacy rights generally? Will it have an impact? Will arbitrators engage in a balancing of employee privacy interests against the legitimate interests of management where the two are in conflict? How might the law in this area be expected to change? Is the existence of an employee’s right to privacy now to be assumed by adjudicators? What types of remedies are arbitrators likely to award for violations of employee privacy rights? What approach will be taken to the issue of damages?