The rise of technology in our society has engendered a consequent increase in the use of personal electronics in our daily lives. This includes our working lives, wherein many Canadian employees rely upon computers, computerized systems and intricate phone and network communication to complete their daily employment tasks. As such, it has become commonplace for employers to furnish employees with the tools required to work, which often includes cellular telephones and laptops.

As employers have increasingly begun to use technology in their workplace environments, so have they increased implementation of surveillance technology to monitor employee usage of the employer’s tools, such as laptops and cell phones. This, in turn, has given rise to many legal questions surrounding the legality of employer surveillance of employee communication. In a unionized environment, implementing such policies may run afoul of applicable collective agreements and thus cause compensable injury to employees. As such, it is imperative that any employer of unionized employees carefully craft any workplace electronic surveillance policy to ensure that it is legal, valid and applicable within the confines of all applicable laws and agreements.

Union Grieves Implementation of Workplace Electronic Surveillance Policy

The recent case of Ontario Public Service Employees Union v. Rideauwood Addiction and Family Services illustrates what may happen when an employer attempts to introduce an electronic surveillance policy into a unionized environment.

The case involved a grievance by the union regarding the employer’s Electronic Monitoring Policy, which became effective in December 2022. The policy purported to allow the employer to collect personal and electronic information through electronic monitoring to ensure network and facility security, protect client data, promote productivity, and ensure appropriate use of technology by employees. The policy indicated that the employer monitors emails, internet use, cell phone use, downloaded documents and websites accessed. With respect to email, the policy notes that the employer monitors all emails sent on computers owned by the employer, regardless of whether a corporate or personal email account is accessed.

The union claimed that the policy violated the collective agreement in that it unreasonably violated employee rights concerning health and safety, protection from unreasonable surveillance, and hours/duties of work. The union further contended that the Electronic Monitoring Policy was unreasonable. As such, it grieved its implementation.

The Legality of Workplace Surveillance

The Working for Workers Act, 2022, was enacted in Ontario in April 2022. This legislation dictates that any employer who has 25 or more employees must create a written policy respecting the electronic monitoring of employees and that such policy must contain the following information:

• Whether the employer engages in electronic surveillance of employees and if so, include details regarding how and in what circumstances such surveillance is permitted and the purpose for which the information collected through such surveillance may be used;
• The date on which the policy was prepared, as well as the date(s) upon which any amendments were undertaken; and
• Other prescribed information.

In a unionized environment, the imposition of an electronic monitoring policy such as the one enacted in this case is subject to review on the basis of reasonableness and the applicability of any relevant privacy legislation. Analysis of reasonableness requires that the arbitrator balance the employees’ objectively reasonable right to privacy against the employer’s legitimate interests.

Electronic Monitoring Policy Ruled Both Reasonable and Unreasonable

The arbitrator began her analysis by acknowledging that although employers’ ability to monitor their employees’ online activity has certainly grown in recent years, such monitoring may and often does clash with employee rights to privacy. Notably, the arbitrator also noted that although the Working for Workers Act demands that employers advise their employees of any electronic surveillance in the workplace, the legislation does nothing to prohibit or limit an employer’s abilities in this respect and does not create any privacy rights for employees.

In this case, the union asserted that the imposition of the policy itself represented an unreasonable exercise of management rights. On that basis, they challenged the legitimacy of the policy. In particular, the union argued the employer’s monitoring of private employee emails and phone calls violated employee rights to privacy in that the policy allowed the employer to collect and store items such as personal web search history and app and social media use, which serve no legitimate business purpose and thus should not be collected by the employer.

Following an extensive and careful review of the policy in question, the arbitrator was satisfied that some parts of the employer’s electronic surveillance policy were unreasonable and others were reasonable.

Cell Phone Usage Surveillance

Concerning cell phone usage, the arbitrator noted that the employer has a legitimate interest in monitoring employee cell phone usage to assess compliance with workplace policies and ensure client data and information are protected. Given that employees had been advised in the workplace cell phone usage policy of the proper use to be made of their employer-provided cell phones and had also been informed that such devices were subject to overt surveillance, the arbitrator was satisfied that employee expectations about privacy related to use of such cell phones were low.

Furthermore, employees retained the option of using their personal cell phone if they truly intended to keep their communication private; as such, they had an option that did not involve the employer, should they choose to use it. In these circumstances, the arbitrator was satisfied that the employer’s Electronic Monitoring Policy was reasonable concerning cell phone usage with one caveat: that the information collected by the employer did not include the actual content of the phone calls. If the employer did intend to record and collect the actual content of conversations, then the arbitrator was satisfied that the balance would swing in favour of unreasonableness. As such, the arbitrator ruled the policy concerning cell phone usage reasonable, subject to the provision of confirmation and clarification by the employer of what information it collected in respect of such phone calls and when.

Email Surveillance

Similarly to cell phone usage, the arbitrator was satisfied the employer had a legitimate business interest in monitoring work-related emails that were exchanged under the employer’s authority (i.e., using the employer-designated email address). As such, employees have a low expectation of privacy regarding such emails. However, emails sent from a personal email address on the employer’s network were not subject to such restriction and should be considered confidential so that the employees retained their right to privacy over such communications.

The arbitrator noted that, as with cell phones, employees could use their electronic devices to access their personal email during working hours, which would avoid allowing the employer access to such information. In these circumstances, the arbitrator was satisfied the email monitoring policy was reasonable, subject to an order that the employer holds an information session with employees to advise of what, precisely, the employer was collecting and to clarify the circumstances in which the employer intended to monitor personal email usage.

Internet and Network Use, Including Downloaded Documents and Accessed Websites

The Electronic Monitoring Policy purported to allow the employer to monitor all network and internet usage related to employer-provided electronics such as laptops. However, the arbitrator acknowledged employees typically used such laptops for significant personal use outside of working hours, which was permitted under the employer’s electronics usage policy. While the employer monitoring of workplace communications was acceptable and allowable for work-related usage, the same could not be said of personal usage. As such, the policy was deemed unreasonable because the employer did not prohibit employees from using employer-provided electronics for personal use.

In these circumstances, the arbitrator ruled that the policy respecting internet usage, including personal and work-related usage, was unreasonable in its present iteration. However, it was further ordered that the parties work together to find a way to modify the policy to enable employer monitoring of work-related usage but limit monitoring of personal usage such that neither employee privacy rights nor employer legitimate business concerns were offended.

Contact Grosman Gale Fletcher Hopkins LLP for Trusted Advice on Electronic Monitoring Policies in Toronto

Grosman Gale Fletcher Hopkins LLP provides employers with comprehensive advice on their rights and obligations under the various iterations of the Working for Workers Act enacted within the past few years. Our team of skilled labour lawyers helps employers create robust, effective electronic monitoring policies that protect their rights and business interests while mitigating the risk of employee grievances.

Conveniently located in the heart of downtown Toronto at the corner of Bay Street and Richmond Street, Grosman Gale Fletcher Hopkins LLP has been a touchstone of Ontario’s employment and labour law landscape for over 30 years. To discuss your matter with our team, please call 416-364-9599 or reach out online.