Page 23 - CCCA Magazine Spring 2014

{ COVER } “MORE AND MORE, WE’RE SEEING PROSPECTIVE EMPLOYEES MONITORING EMPLOYEES EMPLOYEES As for the monitoring of employees, “this is becoming more AGREEING TO HAVE and more of an issue because of the various ways that employ- AGREEING TO HAVE ers want to monitor their employees,” Wasser says. In the past, THEIR INFORMATION she notes, this was mostly limited to installing surveillance THEIR INFORMATION cameras for security purposes or to prevent theft, “but these days, you have a lot of computer monitoring, such as watching DISCLOSED.” DISCLOSED.” what people are doing on the Internet, accessing employees’ emails. And companies are also adopting new technologies, Éloïse Gratton, partner, loïse Gratton, partner, É such as GPS tracking, or f ngerprint or retina scanning for se- McMillan LLP curity purposes, so the ways employees are being monitored is increasing.” The challenge, she adds, is that the privacy commissioners in each jurisdiction have adopted slightly different tests to de- termine when monitoring will be acceptable — “but the one common theme that comes up is that the purpose of the mon- itoring is very important.” So, if security is the purpose of the workplaces is that you’re now relying on software to do the job monitoring, there’s generally less scrutiny than if it is trying to for you. The introduction of technology must be proportional. track an employee’s prof ciency, productivity and performance. You can’t just violate an employee’s privacy for a purpose that’s This latter point is very concerning to Dr. Avner Levin, chair not worth the violation,” he says. of the law and business department, and director of the Pri- vacy and Cybercrime Institute at Ryerson University in Toronto. STAYING CURRENT With employers now using technology to make the workplace It’s no surprise then that as a result of all this, corporate counsel — more productive, “the big risk is that technology is replacing many of whom have also been designated with the CPO title — have human beings in terms of discretion and evaluation and deci- to take privacy matters very seriously. Given the constant changes sions in which to take action. So when you automate the pro- taking place in this area, it’s important to have a good network cess, the risk is that you lose sight of the human being who’s of external counsel upon which to rely, says Osborne, but that’s working for you,” he explains. only the f rst step. “It’s a changing area of law and it’s critical that In particular, Levin cited several cases in which an employ- someone in the in-house group is familiar with the law,” he ex- ee’s privacy was violated when companies used technology to plains. “It’s important not to rely exclusively on external counsel. monitor an employee’s lack of productivity where a conversa- You need somebody internally who knows the business and who tion with the employee would have suff ced. “The concern for understands where the risks are in an organization.” “ “THE NEW COMMON LAW TORT OF INTRUSION… THE NEW COMMON LAW TORT OF INTRUSION… CAN FILL A LOT OF THE GAPS THAT EXIST CAN FILL A LOT OF THE GAPS THAT EXIST IN THE STATUTORY FRAMEWORK.” IN THE STATUTORY FRAMEWORK.” Lyndsay Wasser, partner, McMillan LLP CANADIAN CORPORATE COUNSEL ASSOCIATION | CCCA-ACCJE.ORG 23