An Overview of Canadian Workplace Privacy Laws on Electronic Monitoring

The General Counsel of U.S. National Labor Relations Board (NLRB) released a memo urging a new “framework” for protecting employees from “intrusive or abusive” forms of electronic monitoring that interfere with employee rights under Section 7 of the National Labor Relations Act. Considering the new development, Norton Rose Fulbright provides a brief review of current Canadian workplace privacy laws, similar to the proposed NLRB framework, to help global employers formulate a unified, organization-wide approach to Canadian monitoring practices.  

The proposed U.S. NLRB framework may require employers to:

• Narrow monitoring practices to those which are reasonably necessary to meet reasonable business objectives;
• Balance employee privacy interests against business interests; and
• Disclose monitoring practices to employees unless covert monitoring can be justified.
• Examples of electronic monitoring include use of security cameras or GPS devices to track employees, recording employee use of computers or recording employee phone calls or workplace conversations.

Canadian laws relating to the monitoring of employees are a patchwork that are generally more permissive of employee monitoring than the new approach espoused at the NLRB. Applicable laws depend on whether Canadian operations are federally or provincially regulated, where those operations are in Canada, and whether the workplace is unionized. 

However, where workplace privacy laws exist in Canada they are, in their broad strokes, similar to the proposed NLRB framework. A brief review of Canadian workplace privacy laws may assist in formulating a unified, organization-wide approach to Canadian monitoring practices.

Federal

In federally-regulated private sector industries (such as air travel, interprovincial or international trucking, marine shipping and banking) employers must comply with the requirements of the Personal Information Protection and Electronic Documents Act (PIPEDA). PIPEDA requires businesses to comply with a series of “fair information principles”. While PIPEDA itself does not explicitly address electronic monitoring, application of the fair information principles generally entails the following:

• Monitoring should be conducted pursuant to a clear policy that is accessible to employees;
• Employers should only collect the information that is reasonably necessary in the circumstances;
• Monitoring should be the least intrusive means possible of achieving the employer’s reasonable objective; and
• Employee data should be destroyed when it is no longer needed.

Alberta  and British Columbia

These two provinces have enacted privacy legislation modeled on the PIPEDA principles. Electronic monitoring of employees in these provinces should adhere to the same practical considerations set out above.

Quebec

Quebec has also enacted a provincial privacy legislation. However, a more onerous framework for employer privacy obligations arises from Quebec’s Charter of Human Rights and Freedoms, which has been interpreted as establishing a right to employee privacy. 

As this right is not explicitly set out in legislation, it must be asserted through complaint-driven litigation. Ultimately, if an employee or union challenges an electronic monitoring practice the employer must:

• Prove that it has a real, reasonable, and serious basis to engage in employee monitoring; and 
• Demonstrate that its monitoring is as minimally intrusive as possible. 

Ontario

As of November 1, 2022, Ontario employers with 25 or more employees must disseminate a workplace “electronic monitoring policy”. This policy must inform employees of how, when and why they are monitored electronically. 

An important distinction between Ontario and the jurisdictions described above is that this new policy requirement does not place any substantive limits on an employer’s right to electronically monitor employees. There is no “reasonableness” requirement under this legislation. It simply requires disclosure of monitoring in place.

The rest of Canada

Outside of the jurisdictions above, there is no private-sector workplace privacy legislation that limits electronic monitoring of employees. However, that does not mean there is a privacy free-for-all in the remaining provinces and territories, as there are additional Canada-wide doctrines that apply to workplace monitoring, including the collective bargaining regime of unionized workplaces and the doctrine of constructive dismissal.

Unionized employees

In all jurisdictions in Canada employee privacy is protected by collective agreements. Labour arbitrators have generally held unionized employees have a privacy “interest”, and hold employers to a high standard regarding intruding on that interest. If a monitoring practice is challenged by a union, the employer must prove that the practice is reasonable and consistent with the collective agreement.

The reasonableness assessment involves a “balancing of interests” test, weighing business objectives against employee privacy interests. If the privacy impact outweighs the business objective, the practice will likely be struck down.

Constructive dismissal

In non-unionized workplaces where there are no private-sector privacy laws an employee might argue that aggressive electronic monitoring creates an “intolerable” workplace, effectively terminating their employment. If an employee makes a wrongful dismissal claim and succeeds on this argument, they may be entitled to significant wrongful dismissal damages.

A unified approach to electronic monitoring

Despite the diversity of Canadian approaches to workplace privacy there are common themes that should be considered in developing electronic monitoring practices, namely, recognizing employee privacy interests, narrowing monitoring to that which is reasonably required to achieve clear business goals, and disclosing monitoring where reasonable. 

Workplace privacy laws continue to evolve, particularly in relation to electronic monitoring. Employers with operations in Canada should consider whether they are better served by developing electronic monitoring practices to minimally comply with local requirements, or by adopting organization-wide practices that satisfy the most rigorous standards in each country.