By Howard Levitt and Peter Carey
Anything that is on your work computer is and will be viewed by your employer
One of the issues that constantly arises in our practice is that of employees and employers conflating the use of personal and professional electronic devices such as computers and smartphones. Regular readers will be aware of our position on this, which is that work computers and other work devices should only be used for work-related information and communication and personal devices should only be used for personal communication. Whenever this rule is breached, bad things can happen.
Late last year there was some media hype concerning section 41.1.1 of the Employment Standards Act. That newly introduced section requires employers to have a written policy in place to advise employees if they are being electronically monitored and, if so, how. This does not prevent an employer from monitoring employees in any way shape or form. It just says that if the employer is monitoring you, they have to tell you so.
This leads to the interesting question of what kind of privacy an employee can then expect. The law is far from clear. The Supreme Court of Canada in R. vs. Cole has determined that there is some kind of limited right of privacy but that was in a criminal case where the employer (a school board) had a policy that allowed some restricted personal use of work computers. Other than that, there is not a lot of appeal court guidance to assist employers, employees or the lawyers that have to advise them.
However, we can advise what is happening, in practice, in the real world of employers versus employees and vice versa because our firm regularly acts for both sides.
It is common in employment disputes for employees’ computers to be ordered to be either turned over to the employer or to a third-party expert for examination. So, if you have treasured personal pictures of your honeymoon on that computer, kiss them goodbye for several months, years, or possibly forever.
The situation can be even worse if the employee has used their personal telephone for company business and there is now a dispute. It is bad enough being deprived of your laptop but being deprived of your telephone is much worse.
Employers should also have a written policy stating that no company business can be done via text messaging or similar software. It is a frequent ploy of fraudsters to engage in monkey business using their private emails or texts on the assumption that these communications will not be found out. Sometimes they are right about this but sometimes they are wrong. Nothing raises a court’s suspicions like an employee who uses private emails or texts to conduct company business. This will frequently lead to the seizing of the device in question.
Don’t kid yourself. In the context of a lawsuit any communication you make or have made is fair game. Your telephone records may be examined, your computer may be examined and your telephone may be examined. If you want your private personal communications to remain private, do not intermingle them on a company device and, unless you want immediate suspicion cast upon you, do not use your personal devices to conduct company business. This makes good sense for both the employee and the employer.
If you don’t follow the above advice, then some day you may be in the unfortunate position of making new law. We haven’t met a client yet that wants to be in that position.