Williams HR Law LLP

WHAT’S MINE IS YOURS: THE EXPANDING EXPECTATION OF EMPLOYEE PRIVACY

March 27, 2011

[vc_row][vc_column width=”1/3″][vc_single_image image=”2358″ img_size=”full”][/vc_column][vc_column width=”2/3″][vc_column_text]Jaime from finance has taken her company issued laptop with her on her vacation to Jamaica. Brandon from sales stores personal appointments and banking information on his employer owned Blackberry. Chances are your employees use their employer-issued electronic devices for more than just crunching quarterly numbers and setting lunch appointments with potential clients. According to the recently issued decision of the Ontario Court of Appeal in the case of R. v. Cole [2011] O.J. No 1213, your employees may have every right to expect some privacy in the personal use of those devices.


Cole was a high-school teacher in Sudbury who was issued a laptop by the school board which he used to teach a communications technology course and to supervise and monitor a laptop program for students. A computer technician employed by the board noticed that there was a large amount of activity between Cole’s laptop and the school server.  In an attempt to identify the issue the technician discovered nude, sexually explicit images of an underage student that Cole had copied to his computer from an email account of another student.

School administration was notified and they promptly seized and searched Cole’s laptop. The school board provided the police with the computer along with copies of the images and the teacher’s internet browsing history. The police conducted an additional search of the laptop without a warrant on the basis that they had received consent from the board to search its contents.

Although the laptop was the property of the school board, and traditionally the view has been that ownership means control of privacy, the court held that Cole had a limited reasonable expectation of privacy under the circumstances. According to the court, this expectation was derived from a number of factors. These include the fact that teachers at the school were provided with exclusive possession of the laptops and were allowed to take the laptops home on evenings, weekends and vacations; that teachers set passwords on their computers and stored information on the hard drive; and that there was no clear policy governing the use of the laptops or the right of the school board to search or monitor the computers.

In this particular case, this expectation of privacy was limited only to the extent that Mr. Cole knew, or ought to have known, that the computer technician was implicitly authorized to access the laptops for the purpose of maintaining the technical integrity of the schools network.  The Court held that there was no breach of Cole’s section 8 rights against unlawful search and seizure under the Canadian Charter of Rights and Freedoms because the technician stumbled upon the images while accessing the laptop for these implicitly authorized purposes. However, a violation of Cole’s section 8 rights was found to have occurred when the images and data were provided to the police and when the police conducted the warrantless search of the laptop.

While most employers will not be subject to a Charter analysis regarding the search of company issued equipment (the Charter only applies to governmental authorities, public sector employees and the police), this is an important result for employers as this decision can be expected to have broader implications on the evolving issue of privacy in the modern workplace and the growing recognition of employee privacy.

Employers should take heed of this decision and take the appropriate steps to limit the expectation of privacy that employees may have in relation to any electronic devices provided for work-related purposes. This is particularly important for employers who engage in any kind of monitoring of employee computers

The implementation of a clear and unambiguous policy regarding the use of any employer computers and/or issued electronic devices is the best course for employers in establishing parameters on employee privacy. Such a policy should include statements regarding employer ownership; proper and improper uses; employer’s right and intention to monitor use; and the fact that no policy of information stored on the equipment should be expected.

 

This blog is provided as information and a summary of workplace legal issues.

This information is not intended as legal advice.

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