Who’s Running the Shop? Balancing employer rules against employee privacy

Recent developments in privacy law have resulted in a greater recognition, as well as an increasing expansion, of employee privacy rights in the arbitral jurisprudence. Further, as a result of the Supreme Court of Canada’s ruling in the Irving Pulp and Paper case, it is now clear that arbitrators must engage in a balancing of interests approach, weighing the employer’s interest in making operational rules against the impact on employee privacy rights. In this session, Lancaster’s panel of experts will review the latest caselaw on the exercise of management rights, and discuss the implications of these recent decisions for employer rules which limit employee privacy. Topics to be addressed include:

• Clarifying the scope of management rights: How has the Supreme Court of Canada’s ruling in Irving Pulp and Paper affected the scope of, and arbitral approach to, management rights? Are all attempts to exercise management rights and make rules to govern the workplace now subject to the test of reasonableness? Is a balancing of interests approach now mandated in all cases where employer rules impact on employee privacy rights?
• Monitoring employees through surveillance, biometric scanning, and GPS tracking: What are the latest cases on an employer’s ability to use technology to monitor, keep track of and manage its employees, equipment, and premises? What approaches are arbitrators taking to determining the validity of unilaterally imposed rules and employer actions in these areas? Is/are the test(s) being applied more restrictive of management rights than in the past? What balance is being struck between an employer’s right to manage and control the workplace and employees’ privacy interests? How do the approaches taken by arbitrators compare with those of privacy commissioners considering these issues?
• Accessing medical information: How do recent developments in privacy and arbitral law impact an employer’s ability to access employees’ medical information? Are restrictions being imposed on employer rules requiring medical information for the administration of sick leave, attendance management, or short-term or long-term disability programs?
• Instituting personal appearance rules and dress codes: How will recent developments affect employer rules about employee appearance or dress? Is there likely to be a change in the way arbitrators balance the privacy rights of employees against the legitimate business interests of employers? Will the balance be struck differently if the rule will affect the employee’s appearance off duty, or if the reason for the rule relates to employee, customer, or public safety?
• Establishing immunization, infection-control, and other safety rules: What kinds of health and safety concerns justify employer rules infringing or curtailing employee privacy rights? How is the balance of interests being struck in cases where employers have attempted to mandate flu shots, or other infection-control measures that impact on employee privacy? Is the threshold for justifying such employer rules higher than in the past? Will greater evidence of harm or risk to safety be required in order to justify such employer rules? Is there a requirement to demonstrate that the least privacy-restrictive means of achieving the employer’s safety-related objective has been adopted?