Employee Surveillance

“If you want to keep a secret, you must also hide it from yourself.”

George Orwell wrote that in 1984, a novel which defined the surveillance state. In the world of 1984, citizens were continuously supervised by Big Brother under the rationale that security trumped freedom.

Today’s surveillance options far surpass the technologies Orwell imagined. Unsurprisingly, this has created conflicts with longstanding social rules. One of the flash points has been supervision of employees. It is a perfect example of legitimate business interests differing with individual privacy.

Like many jurisdictions, Saskatchewan’s law gives little guidance on how far employers can go when monitoring workers. This creates risk if a business owner wants to use data gathered by technological tools.

Let’s use global positioning systems, or GPS, as an example. It is trivial to attach a tiny box to a car that will provide round the clock information on the vehicle’s operation. Things like location and operating speed can be monitored in real time or recorded for later.

These vehicles are (for now) almost always operated by human beings. Vehicles do not have privacy rights; people do. While an employer might argue that they are only monitoring the machine, that can collide with the right to privacy of employees who operate it.

This issue has already arisen in courts. For the most part, judges have held that personal information is being gathered. That does not make it illegal. It just eliminates one possible argument that would give employers free rein to gather data.

As an aside, GPS devices are everywhere, including in every smartphone sold today. If a company provides a phone to an employee, the employer can easily monitor its location. Sure, it is the phone which is being tracked, but phones do not move around without following, and tracking, their users.

There are different regimes in Canadian provinces concerning the protection of employee information. Even provinces which offer privacy protections, such as British Columbia, have permitted monitoring in some circumstances. Saskatchewan does not yet have those protections (apart from federally regulated industries like airlines). If that is the case, it should be obvious that employers can monitor employees in Saskatchewan, right?

Not necessarily. In addition to statutory protections there are case-made rules developing around privacy. Saskatchewan’s Privacy Act specifically creates a civil cause of action for breaches, with room to develop and expand the scope as time goes on.

In short, if an employer gathered and acted on GPS data respecting employees without any controls or specific reasons, they would at least be inviting scrutiny. At worst, they could face legal repercussions for breach of privacy.

That does not mean they can never do it. It may require some restrictions or controls. For example, the monitoring and collection of data must be for a legitimate business purpose. Doing it just because it is neat, or for idle entertainment of the supervisor, is clearly offside.

The meaning of a legitimate business purpose is still being developed by courts. A few instances are easy. If, say, there was a government contract which required strict security and oversight of employees for national security purposes, that would obviously be allowed. Even monitoring the speed of trucks and vehicles to ensure compliance with traffic laws is arguably OK if it is to protect the public, customers or the company’s reputation.

Other situations are harder. You might want to monitor an employee to explore when/where they are taking breaks, and for how long. You might think this is a legitimate employer supervisory right but it may not be acceptable except in specialized situations. Employees do have rights against unreasonable surveillance.

At the least, you need to be transparent beforehand. Advise employees they will be monitored, the purpose for it, and how it will be done. Most employers do not like to do this, usually because they are embarrassed. That begs the question – if it is embarrassing to admit to this, does that suggest that you are approaching some kind of line that demands caution?

If there are reasonable alternatives to broad electronic surveillance those options may need to be approached first. The convenience of the employer will not override this.

GPS information is only the start of the uncertainty while the law develops. For example, some employers are now using RFID and similar technologies to monitor the use of tools and equipment. This can provide information on workers using them, for how long, and other details attaching to an employee. While an employer might be tempted to use that information as a productivity aid (or bludgeon) against an individual employee, the discussion above should be a clue there are serious risks in doing so. Again, taking advantage of the information without at least having the discussion with employees beforehand is risky. And we have not even delved into the rules if a union environment governed by a collective agreement is involved.

Technology increases business efficiency and can lead to superior new practices. But cultural and workplace realities can conflict. The introduction of monitoring technology in the workplace needs to be part of a well-considered plan.