Tech Talk: Ensuring legal and ethical use of technology by employers and employees

Newspapers and legal decisions abound with allegations of employees committing “time theft” by using technology for personal pursuits during work hours and co-workers harassing each other online. Using workplace technology for unlawful or unethical purposes is not, however, the exclusive domain of employees. Technological advances enable employers not only to maintain near constant surveillance of employees both inside and outside the workplace but also to construct intensely personal profiles of employees, raising serious concerns about the potential for infringement of privacy rights and new types of systemic discrimination. In this session, Dr. Ann Cavoukian, one of the world’s leading privacy experts, will join experienced union and employer counsel to discuss the legal implications of employer and employee use of technology.

• The legal landscape: What is the status of an employee’s right to privacy in the workplace? Following the Supreme Court of Canada’s ruling in Irving Pulp and Paper, is a balancing of interests approach now mandated in all cases where employer practices or policies impact on employee privacy rights? Does privacy legislation restrict an employer’s ability to monitor employee computer activity on-duty? Does an employer’s tracking of employees’ off-duty internet activity amount to the collection of personal information subject to privacy legislation? How do the approaches taken by arbitrators compare with those of privacy commissioners considering these issues? Are the privacy rights of employees in jurisdictions without privacy legislation applicable to the private sector adequately protected by the common law through decisions like R. v. Cole and Jones v. Tsige?
• Employee use of technology: How do the latest decisions treat employees’ personal internet use on-duty? Can employers ban all personal internet use? Do arbitrators treat personal internet use as tantamount to theft? What restrictions can be placed on employee use of employer-owned technology that employees are permitted to take home (e.g. laptops, smartphones)? When will off-duty harassment via email, texts or social media have sufficient connection to the workplace to trigger an employer’s duty to investigate and respond to the harassment? How far do the constitutional principles of freedom of expression and freedom of association extend in protecting online communications by union members voicing grievances or otherwise addressing workplace issues?
• Employer use of technology: What are “people analytics”? What privacy and human rights issues are raised by increased employer use of analytics? Is there a way to reap the proposed benefits of analytics, such as more objective human resources decisions and increased responsiveness to employee demands, while protecting privacy and mitigating the potential for systemic discrimination? Can employers legally make use of new technologies that permit them to collect biometric information, such as heart-rate activity level, to identify how employees respond to stress or to offer insurance premiums discounts? What rules apply to employer use of technologies that monitor employee movement (or movement of equipment) to track productivity?