Is your employer watching? Are they monitoring the time you spend on the internet? But more importantly, can they use what they find out as evidence to fire you? In a recent decision, the answer to all of the above was YES.
A nearly 10-year employee was terminated for excessive internet usage – basically for not working while on duty. The union grieved the termination and made an application in advance of the arbitration that the internet investigative report is excluded as inadmissible because it infringed the employee’s privacy and was in violation of the B.C. Freedom of Information and Protection of Privacy Act (“FIPPA”). In the decision, Fraser Health Authority v. H.S.A.B.C., 2011 CarswellBC 1174 (B.C.A.B.), Arbitrator Glass held that there was no privacy violation and the report was admissible
One of the key facts in the decision was that the employer had a clear policy that the computers and the data on them were the property of the employer and that they would be monitored. The policy also stated that personal use of the computers was to be done while on breaks and was not to interfere with the employer’s operations.
The internet investigative report was generated based on data pulled from the employer’s proxy server, which included log records of the URL visited, web category, date and time, IP address of the source computer and the user account when the internet was accessed through the proxy server. The internet report was only requested after the employer had several pieces of evidence from other employees about the individual’s excessive use of the internet.
The employer, in this case, was a public body and therefore under FIPPA including the following:
(a) the collection of that information is expressly authorized under an Act, or
(b) that information relates directly to and is necessary for an operating program or activity of the public body.
The Arbitrator found that the internet investigative report fell within the exception of s. 26(c) and was not in violation of FIPPA. The Arbitrator found that the purpose of the audit was “legitimate and necessary” and the basis for looking into it was “reasonable”. I would suggest that a key factor was that the Arbitrator held that the scope of the internet investigative report was reasonably limited. It was not simply a copy of all the personal data of that employee, it was basically a list of websites visited and the time spent browsing.
Many employers are under the impression that they can access, copy and use any information stored on computers provided to employees in the workplace. One might especially believe that to be the case where there was suspicion of possession of child pornography on a teacher’s work laptop. The Ontario Court of Appeal recently held in a criminal case that an employee’s privacy rights under s. 8 of the Charter were breached when the police used a copy of the temporary internet files on the employee’s laptop provided by the employer.
The decision in R. v. Cole, 2011 ONCA 218 provides new guidance to employers about what is within the reasonable expectation of privacy of an employee. This decision has been widely written about (see “Computer Ruling seen as landmark workplace decision”, Globe & Mail, March 25, 2011).
The Court of Appeal drew a distinction between the initial search by a school technician and the resulting disc which had copies of specific nude photographs and the complete search of the teacher’s computer and the resulting disc containing all temporary Internet files, the laptop computer itself and the mirror copy of the laptop computer. It was only the later broader search including all temporary Internet files that were found to infringe the teacher’s privacy.
While this decision is more directly about police conducting warrant-less searches, the finding that the search was overly broad in scope and therefore a violation of the teacher’s privacy rights is directly applicable to employment law. There is now an appellate court decision stating that this employee had a reasonable expectation of privacy in a workplace computer. The court found that the laptop was also used for personal use and thus the court drew a parallel with the prior decision of the Supreme Court of Canada in R. v. Morelli, 2010 SCC 8, where the court held.
These line of cases make it very clear that employers should have policies about the ability to monitor use and restrict personal use of computers at work. Even where it is a workplace device, based on this decision an employee may very well have a reasonable expectation of privacy.
Why should any company ever hire a lawyer, unless of course, something happens to the company, or within it and the company needs one? Well, that is the answer to the question, “Why should I hire employment law consultants?” We have all heard the old cliché about “failing to prepare is preparing to fail.” It just so happens that this is the single most identifiable reason for small business failure. The unexpected happens and in accordance with Murphy’s Law, the day before you were planning to address the need to prepare for.
Studies have shown that small businesses that experience data loss for greater than a fortnight are 80% likely to fail within one year. Imagine the impact of a fundamental change in employment law on a small business that affects half of the employees. Now imagine that it is your business and you did not catch the story. This is why the responsible and success oriented business entrepreneurs engage an Employment Law Consultant. The first key to success is the US boy scouts motto “Be prepared” But it is not all about risk anticipation and mitigation.
Recently, in the US the government announced a new program that pays up to $5000 in benefits to certain businesses that hire new employees under certain instances. If those US businesses had retained Employment Law Consulting, they would have known about the new law long before it passed and would have been ready to maximize their benefit straight away. That is the second key to success, keep looking forward. You see, the smallest business fail to consider the future as “today’s problems are enough.” This means that they will forever be behind the curve and their fellows will be forever ahead. This is one of the “ABC’s of business, Always Be Considering.
So what are some of the services you should look for in an Employment Law Consultant? Well first off, they should ensure that they would continuously monitor employment law to ensure that you are not only compliant but also well positioned to derive maximum advantage from potential changes. They should certainly provide ongoing management of all current and future employment contracts. Gone are the days of the simple employment, what with teleworkers and contract employees and temporary workers. What about disciplinary and grievance procedures? Have they ever been reviewed? Are you at risk? They should also answer the telephone or email when you have a question. For a general package of services the charges should be fair, within the range of 125 to 150 per month for the above and related services should do nicely.
This is the 21st century, yes? Small businesses have taken to hiring other companies rather than employees to ensure the proper handling of their affairs, Payroll and taxation are regularly outsourced. Human Resources are the next big thing. Well, this is the one you really need. With outsourcing, you are guaranteed quality of services and work product and some tasks are just too important to allow anything less. Employment Law Consulting will be in the successful business’s toolkit along with the accountancy, payroll services, and technology consulting. The issue is whether it belongs in your toolkit. For a hundred or two per month you will ensure that your vital operation are taken care of by a team of experts rather than trying to remember to keep up with the news.