Page 22 - CCCA Magazine Spring 2014

{ COVER } “WE TAKE THE MOST STRINGENT PROVISION AND MAKE IT THE STANDARD PROVISION AND MAKE IT THE STANDARD FOR ALL EMPLOYEES IN CANADA.” D Daniel Bourque, senior corporate counsel and CPO, Xerox Canada Ltd.aniel Bourque, senior corporate counsel and CPO, Xerox Canada Ltd. sion in Alberta v. United Food and Commercial Workers, Local 401, this is a legal requirement for doing background checks. “The in which it stated that even though Alberta’s PIPA plays an im- bottom line, though, is that the information has to be relevant portant role in protecting privacy, it infringes the constitutional for the job. So, let’s say it’s a criminal background check. If the right to freedom of expression under the Canadian Charter of employee will work in a sensitive capacity, with the elderly or Rights and Freedoms and, as a result, it must be struck down. The children, or managing funds, this is justif ed. But if the employee court has given Alberta’s government a year to amend the legis- is just stocking shelves in a warehouse, this is not relevant.” lation. (It’s likely that changes to the other provincial acts and In addition, Wasser points out that if you’re collecting more PIPEDA will also be made because of this decision.) information than you need — even with consent — you could Another notable case is the Ontario Court of Appeal over- violate the privacy laws, whether it’s a background check or the turning a lower court’s decision in Jones v. Tsige in 2012. information a company is collecting on the application forms. “[This] established the new common law tort of intrusion As an example, she says some companies get applicants to put upon seclusion, which is very important because until this their social insurance numbers (SINs) on the application forms, case, there was no recognized tort of invasion of privacy in “but you don’t need the SIN of every applicant; you only need Ontario — and this tort can f ll a lot of the gaps that exist in the SINs of people that you hire.” the statutory framework,” says Lyndsay Wasser, a partner with Once employees are hired, the two other most common is- McMillan LLP in Toronto who focuses on employment and sues that Wasser cites come into play. In today’s globalized so- privacy law, and co-authored the recently released guide, Pri- ciety, f rms may need to transfer private employee information vacy in the Workplace, 3 Edition, with fellow McMillan part- to another jurisdiction. This may be to head off ce, an aff liate rd ner Éloïse Gratton in Montreal. or an employee benef ts provider, which could be located in the U.S. or overseas. “There are — again, depending on which ju- COLLECTING AND PROTECTING INFORMATION risdiction you’re in — specif c rules around that, the most re- Weighing against all this is that companies are using advances strictive of which, in the private sector, is Quebec. But there are in technology to gain greater knowledge on both employees and some notice requirements in Alberta and there’s some case law prospective employees, and to manage data across various juris- under PIPEDA about things you have to do when moving in- dictions. Ensuring that your company stays on the right side of formation across borders,” she explains. the law is critical when engaging in such activities. “The most There are guidelines from the federal Off ce of the Privacy common issues that tend to come up over and over again re- Commissioner that recommend certain measures be taken to garding privacy and employee information,” says Wasser, “relate protect the information when it crosses the border. “[But] in to background checks and several matters relating to the hiring Quebec, you need to let the service provider know what type of process, as well as transferring of employee information across security measures they need to adopt [to meet Quebec’s laws] borders, and the monitoring of employees.” and you need to have a contract. It’s a legal requirement to do In terms of background checks and the hiring process, most so,” Gratton says. “Another thing that needs to be taken into ac- companies want to know how far they can go in getting informa- count: let’s say the human resources department is outsourcing tion about prospective employees. For instance, many f rms now the payroll services to a U.S. company, which happens all the want to do a check on a person’s medical history, driving record time, it needs to provide the service provider with only the nec- or credit history. “More and more, we’re seeing on employment essary information for the outsourcing activity. So all they need forms prospective employees agreeing to have their information to know is the employees’ banking information. They don’t disclosed to a prospective employer,” says Gratton, noting that need the complete prof le, and that’s a mistake many make.” 22 CCCA MAGAZINE | SPRING 2014 PRINTEMPS