Recordings In The Workplace

Both employees and employers often inquire about their ability to record in the workplace during their meetings, conversations, and other interactions in the workplace. Some may use this as diligent record-keeping, others as collecting evidence for investigations or civil actions. Both sides must understand their rights and responsibilities when it comes to recording others at work.

Recordings by Employees:

Employees are technically able to record a conversation at work in certain circumstances, such as when they are part of, or intend to be part of the conversion, and the employee is not management.

However, an improper recording can lead to consequences that the employee did not foresee. For example, recording someone without their consent or recording confidential, sensitive, or proprietary information may be against the company’s policies, and as a result, may lead to disciplinary action.

Employees should also ensure they are not capturing conversations where they are not party. Intercepting the private communications of others may lead to violations of the Criminal Code.

In a civil claim, employers may be liable to employees for the tort of intrusion upon seclusion. This tort was confirmed in Ontario by the Court of Appeal in its decision of Jones v Tsige, 2012 ONCA 32, and it applies to actions which are intentional or reckless breaches of privacy of another person in a manner which a reasonable person would find highly offensive.

Recordings by Employers

Employers may also be tempted to secretly record their interactions with their employees for the purpose of maintaining a record of conversations, gathering evidence for future disciplinary actions, and carrying out investigations of workplace misconduct. Recordings in the workplace may even take the form of collecting data about their employees for the same purposes.

When members of management make recordings of interactions with employees, there is a risk that their actions are interpreted as unreasonable surveillance of the employee. This could create liability for the employer.

Federal employers and other organizations are subject to the Personal Information and Electronic Documents Act (PIPEDA) and therefore, if they do collect the personal data of their employees, they must disclose the identity of the person accountable for the organization’s data policies, as well as how the employee can access that information and policies concerning the private information. This does not necessarily apply to provincially-regulated employers.

Violations of PIPEDA may lead to investigations by the privacy commissioner. Whether PIPEDA applies to particular types of data collection will depend on the circumstances of collection and the type of information collected.

The security and business needs of an employer may encourage the recording and monitoring of employee activity on employer-owned devices. Employers will be permitted to do this where:

  • The device is used for business purposes;
  • The monitoring is reasonable; and
  • The employer provides advanced notice of the monitoring.

When considering security camera monitoring in the workplace, employers are subject to similar requirements regarding reasonableness of the surveillance and provision of notice to the affected employees.

Failure to implement reasonable monitoring or provide notice could lead to a complaint with the privacy commissioner and a requirement to implement changes that protect the privacy of employees. Employees who feel their privacy was violated may initiate a civil suit for intrusion upon seclusion.

Conclusion

Employers and employees should consult with competent legal advisors to determine what monitoring measures may be appropriate for their workplace. For special cases of monitoring, employers should be reasonable in the type and amount of information recorded and obtain the permission of affected employees. Transparency and consent are important factors in determining the appropriateness of the monitoring.

Contact Us:

Whether you are an employer or an employee looking for assistance with your disputes or employment relationships, our team of experienced employment lawyers at Achkar Law can help. Contact us by phone at 1 (800) 771-7882, or email at [email protected], and we would be happy to assist.

If you are a small or medium-sized company looking for full-service support, visit our CLO program page for our strategic solutions.

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Disclaimer: This blog is not intended to serve as, or should be construed as legal advice, and is only to provide general information. It is in no way particular to your case and should not be relied on in any way. No portion or use of this blog will establish a lawyer-client relationship with the author or any related party. Should you require legal advice for your particular situation, fill out the contact form, call 1-(800)771-7882, or email [email protected].