Level of privacy employees can expect on work computers still unsure
By Jeffrey R Smith
It’s pretty common for employees to spend some amount of time at work on personal activities. Whether it’s dealing with a personal matter on the phone, talking with colleagues about their plans for the weekend or leaving early for an appointment, it’s not likely an employee is going to spend every minute from when she arrives at work until she leaves doing just work. With computers now a regular part of most workplaces, this has extended to things like personal email and surfing the world wide web.
But this raises the question for many: How much right does the employer have to monitor personal activities of employees during the workday and on company equipment? Should it be limited to simply whether it’s work-related or not, rather than the details?
A couple of years ago, the Alberta Court of Appeal in Poliquin v. Devon Canada Corp. upheld an employer’s right to monitor an employee’s email and computer use. The employee was fired for forwarding pornographic, derogatory and racist emails.
“The workplace is not an employee’s home; employees have no reasonable expectation of privacy in their workplace computers,” said the court.
However, just over a month ago, the Ontario Court of Appeal put some more restriction on an employer’s right to check on employees’ computer activities. The Ontario court found materials police found related to nude photos of a student that a teacher had downloaded onto his work-issued laptop were not admissible. This was because the employer had searched the computer, including the teacher’s private emails and files, then turned it over to police.
Material found during a normal maintenance check was admissible because it was within a reasonable expectation it would be found. However, the results from the more extensive searches “could have exposed intimate details of a personal nature” which were protected under the teacher’s reasonable expectation of privacy, said the court.
I admit that I, like numerous people, have a few personal files on my work computer. But I don’t expect my employer will never look at them. Truly personal files that I wouldn’t want someone snooping in remain on my personal computer, not my work one. Shouldn’t everyone take those precautions?
Should employees have an expectation of privacy for personal files and activities on a work computer, or should the fact it’s company property eliminate any reasonable expectation or right to privacy? Should an employer be allowed to look at anything that’s on one of its own computers?
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.
