October 3 , 2019

In recent years, rapid technological developments and the prevalence of social media have blurred the boundary between public and private data and communications. As technology continues to evolve, workplace parties are regularly encountering new challenges in maintaining the delicate balance between employers’ legitimate management rights and employees’ reasonable expectation of privacy regarding their electronic communications and personal information. In this session, experts will discuss issues related to privacy and the use of technology in the workplace, including the following:

  • The right to privacy: To what extent do employees have a right to privacy in the workplace? Is a balancing of interests required in all cases in which employer practices or policies affect employee privacy rights? Do employees have a reasonable expectation of privacy with respect to personal data stored on workplace electronic devices? Will personal information stored on smartphones, 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? How might the Supreme Court of Canada’s ruling in R. v. Jarvis affect employees’ reasonable expectation of privacy in the workplace?
  • Surveillance and monitoring: What do the latest cases say about employers’ use of video surveillance and other technologies to monitor and manage their employees and premises? What balance do arbitrators and privacy commissioners strike between an employer’s right to manage and control the workplace and employees’ privacy interests? Are employers entitled to monitor an employee’s computer and Internet use in the workplace? Does an employer require “probable cause” (such as a decline in productivity) before it can monitor or audit an employee’s computer use?
  • Social media and personal electronic communications: Do employees have a right to privacy with respect to the content of their personal Facebook pages, Twitter accounts, web pages, blogs, e-mails, or text messages? Can an employer monitor employees’ social media accounts to ensure they are not making statements or engaging in activities that would harm the employer’s reputation? Does an employer’s tracking of employees’ social media use amount to the collection of personal information protected by privacy legislation?
  • Workplace policies: Can an employer diminish or erase an employee’s expectation of privacy through a workplace policy on acceptable computer or Internet use? Is it permissible for an employer to ban all personal use of employer-issued technology? What are examples of workplace policies for acceptable computer, Internet, and e-mail use? Can workplace policies assist employers in safeguarding against privacy breaches?
  • Current trends: What privacy and human rights issues are raised by increased employer use of analytics? Can employers legally use technology to collect biometric information, such as heart rate, to identify how employees respond to stress or to offer discounted insurance premiums? What rules apply to employer use of global positioning systems (GPSs), radio-frequency identification (RFID), and other technologies that monitor employee movement (or movement of equipment) to track productivity? Can employers access data generated by wearable fitness devices that they distribute to employees as part of high-tech wellness programs?