December 6, 2023
Privacy laws apply to federally regulated and provincially regulated employers in British Columbia, both union and non-union. Whichever privacy statute applies to your organization, each Act contains similar general principles (with a few minor variations) about collecting personal information.
The collection of any personal information, including video surveillance, is subject to reasonableness standards. Privacy commissioners and labour arbitrators use the following tests to determine whether video surveillance has been done properly:
- Are there reasonable grounds for the surveillance?
- Is the surveillance carried out in a reasonable and non-discriminatory manner?
- Are any less intrusive alternatives open to the employer to protect its legitimate business interests?
The answers to these questions always depend on the circumstances of each case.
Privacy Commissioners have taken the view that general surveillance to monitor employee productivity is not reasonable. In some circumstances, video surveillance may be permitted with notice to address identified safety or security issues. Limited surreptitious surveillance without notice may also be justified in the investigation of employee misconduct, such as an investigation into theft or vandalism. In any case, the employer must meet the tests to justify video surveillance.
Employers considering video surveillance should remember the following:
- The purpose for the surveillance must be reasonable. Video surveillance is a balancing act between the business purposes of the employer and the privacy rights of the employees. Is there a less intrusive way to achieve the purpose? Can your organization show that it has taken steps to consider and explore alternatives? Will video surveillance be effective in meeting the purpose? Is the loss of individual privacy proportional to the legitimate requirements of the employer?
- Employees should have notice. Except in cases where the video is being used as part of an investigation into employee misconduct, employees should be advised of video monitoring in advance and told the locations of the cameras. Employers should post signs in the workplace stating that cameras are in operation. Surveillance should be limited as much as possible to ensure that level of surveillance does not go beyond what is required to meet the legitimate business interests of the employer.
- Employers must comply with other privacy law requirements with respect to the collection, use, disclosure, access, security, and retention of the video images. A video monitoring policy dealing with these issues would be valuable.
Of course, quite apart from the privacy issues, employers will want to consider other issues, including workplace morale. Consultation with the union about the employer’s use of video surveillance and the reasons for the video surveillance would also be appropriate.
The Office of the Information & Privacy Commissioner (OIPC) for British Columbia has developed a set of helpful guidelines for employers in both the public and private sectors to consider when implementing video surveillance systems. The guidelines provide information on various issues such as the factors to be weighed when deciding whether or not to use surveillance, the creation of policies on the use of surveillance systems, the layout of surveillance equipment, the management of surveillance records, and audit procedures. The guidelines also provide information on issues related to overt video surveillance and how to ensure that its impact on privacy is minimized. To access these guidelines, visit the OIPC’s Guidance Documents page.
Article written by Larry Page, partner and group leader of Bull, Housser & Tupper LLP’s Labour & Employment group. Bull, Housser & Tupper LLP is a leading law firm with expertise in key industries within British Columbia, serving both Canadian and international clients. This article is reprinted with permission from Larry Page.
Additional information provided by Ryan Anderson, an employment lawyer with Mathews Dinsdale & Clark LLP. The information provided in this article is necessarily of a general nature and must not be regarded as legal advice. For more information about Mathews Dinsdale & Clark LLP, please visit mathewsdinsdale.com.
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