Surreptitious Surveillance in the Workplace

In an era where technology is more accessible then ever, most people have video and audio recording devices within an arm's reach at all times. The prevalence of phones, tablets and webcams make it easier than ever to capture and record everyday life. But what about work life? When is it okay to record your co-workers or boss? What about the employees you supervise or manage? What if they don't know they're being recorded?

The starting point is that it is not a criminal offence to record a conversation if one of the parties involved consents to the recording. Meaning if you're a party to the conversation, it is not illegal to record it. Alternatively, even if you're not a party to the conversation, if one of the participants is aware of and consents to the recording, it is not a criminal offence.

But that does not necessarily mean there are no repercussions for secretly recording conversations or interactions at the workplace. There are risks and considerations which both employees and employers should be alert to.

For Employees:

While it may not be a criminal offence for an employee to secretly record a conversation with their boss or coworkers, it could potentially result in severe consequences including the termination of their employment for cause.

In a recent decision by the Supreme Court of British Columbia, Shalagin v. Mercer Celgar Limited Partnership, 2022 BCSC 112 ("Shalagin"), the Court upheld the for cause termination of an employee on the basis he surreptitiously recorded his co-workers over the course of his employment. In finding the allegation of cause was justified, the Court emphasized a number of factors, including that the employee knew his co-workers would be uncomfortable with it, the recordings were solely for the benefit of the employee, he recorded conversations that involved personal information on other employees, and there was no legitimate basis to make the recordings, among other reasons.

In Shalagin, the Court also cited a number of other Canadian cases in which the courts have found that secretly recording meetings and conversations in the workplace is inappropriate and can erode the trust between the employer and employee.

It is important to note that the decision in Shalagin does not mean an employer has carte blanche to terminate any employee for cause if caught making a secret recording. Each case will depend on its own unique facts, including the extent of the recordings, the content recorded, and the degree to which it eroded the trust between the employer and employee. However, even if an employer may not have grounds to terminate for cause, they could still take other disciplinary actions against the employee, such as issuing a formal warning, suspension, or termination on a without cause basis.

With that in mind, employees should think twice before secretly recording their workplace conversations. Where a recording may be needed for work-related purposes, employees would do well to advise the other participants of their intention to record the conversation before hitting the "on" button.

For Employers:

It is accepted that employers may have bona fide reasons for wanting workplace surveillance. For example, businesses may have cameras in place for security purposes, such as to protect expensive equipment, information, or merchandise. Other employers may record conversations between employees and customers for quality and assurance purposes. However, there are limits. Unreasonable violations of employees' privacy interests without their consent may have consequences.

Currently, there is no legislation which specifically governs provincially regulated employees' privacy rights in Ontario. However, the Ontario government just recently introduced a new bill, Bill 88 - the Working for Workers Act, 2022, which, if passed, would require employers of 25 or more employees to prepare written policies on electronic monitoring. As drafted, Bill 88 would not limit the employer's ability to electronically monitor its employees, but it would require employers to disclose to employees the extent of the monitoring and how the information may be used. For more information on Bill 88 and the requirement to prepare a written policy on electronic monitoring, check out our previous blog post, More Changes Ahead for Ontario Employment Law.

All employers, however, should carefully consider how, where, and why they monitor employees. While our Courts have recognized that employees have a reduced expectation of privacy in the workplace, they may nevertheless have an expectation of some privacy. Employers should strongly consider disclosing to employees the extent of any monitoring measures and clearly outlining what expectations employees should have with respect to their privacy in the workplace or when using company owned equipment/technology.

Employers would also do well to think carefully before implementing surveillance in private places, such as bathrooms, changerooms or private offices without consent. In the case of Colwell v. Cornerstone Properties Inc., 2008 CanLII 66139, the Court found the secret installation of video surveillance in a manager's private office amounted to a constructive dismissal of her employment. In reaching this conclusion, the Court held that the installation of the camera in the manager's office without her knowledge and without sufficient justification was a violation of the employer's obligation to treat the employee in good faith and fairly.

Takeaways:

Employers and employees alike should think carefully before making secret recordings in the workplace. Even in circumstances where it is not illegal, secretly recording workplace interactions could have consequences, including an erosion of the trust necessary for the employment relationship to continue. While some employers may soon be obliged to disclose their electronic monitoring practices, both employers and employees should consider the purpose, and possible implications, of workplace recordings and monitoring.

In all cases, employers and employees alike are encouraged to seek experienced legal assistance with respect to their workplace privacy rights and obligations. Lee Workplace Law would be happy to answer any questions you may have.