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For The Sake Of Productivity...
By: Sara Azargive


September 27, 2005

Good value in terms of productivity, service and the protection of an employer’s interests seem to be the pervasive rationale behind workplace surveillance. A poll conducted by Accountemps, a temporary staffing service, reported that 70 percent of large Canadian companies monitor employee computer activity (Globe and Mail, August 19, 2005). It is estimated that most employees spend an average of 40 minutes a day on non-work related email, instant messaging and Internet use. A majority of the companies polled indicated that they monitor Internet use, with 27 per cent saying that they observe activity very closely, 43 per cent saying somewhat closely and 19 percent saying not very closely. Only 9 percent said that computer use was not monitored and the remaining 2 percent said they did not know.

In a decision released this summer by Commissioner Frank Work, the issue of workplace privacy was revisited. Commissioner Work ruled that a library in Alberta that electronically monitored an employee’s computer use collected the personal information in contravention of the Freedom of Information and Protection of Privacy Act. The library had installed keystroke logging software on the employee’s computer, concluding that this was the only way the productivity of their employee, a computer technician, could be measured. They relied on a provision of the Freedom of Information and Protection of Privacy Act (section 33(c)) which permits collection of information that relates directly to and is necessary for an operating program or activity of a public body. The Commissioner’s office concluded that a less intrusive means to get the required information was available to manage the employee.

The information that was collected through the use of the keystroke logging software was found to have a personal aspect, since it was used to determine how much work the employee did, the style or manner of doing it and/or the choices that were made when prioritizing the work. The public body had argued that they used the software to ensure that its resources were being used for the purposes of the public body and that the personal use of the computers were limited. The public body felt that by doing this they were protecting the public interest.

In Eastmond v Canadian Pacific Railway, 2004 FC 852, the Federal Court of Canada considered an application brought by a Canadian Pacific Railway (CP) employee for an order requiring CP to comply with the Federal Privacy Commissioner's report which recommended the removal of video cameras from the mechanical facility area of CP’s Toronto Yard. The Federal Court dismissed the application. CP had installed six digital video recording surveillance cameras for security purposes. An employee filed a complaint with the Federal Privacy Commissioner’s office alleging that the cameras were violating employees' rights to privacy. The Federal Privacy Commissioner issued a report holding the complaint was well founded and recommended the removal of the cameras.

The court used the same four factors used by the Federal Privacy Commissioner to determine whether CP's purposes for collecting personal information are those a reasonable person would consider appropriate:

• Is camera surveillance and recording necessary to meet a specific CP need;
• Is camera surveillance and recording likely to be effective in meeting that need;
• Is the loss of privacy proportional to the benefit gained;
• Is there a less privacy-invasive way of achieving the same end?

The Federal Court of Canada held that CP had identified a number of past incidents which justified the need to have surveillance cameras. In addition it also held that video surveillance was useful to deter theft, vandalism and trespassers, and to enhance the security of its employees. The collection of personal information was not surreptitious or continuous nor was it intended to measure an employee's work performance. The court concluded that there was no less privacy-invasive way of achieving the same end in a cost effective manner that did not unduly disrupt CP’s operation.

The court further ruled that the collection of the information without knowledge and consent of those under surveillance was permissible pursuant to section 7(1)(b) of the Personal Information Protection and Electronic Documents Act which permits an organization to collect personal information without knowledge or consent of the individual if it is reasonable to expect that the collection with the knowledge or consent of the individual would comprise the availability or accuracy of the information and the collection is reasonable for purposes related to investigating a breach of an agreement or a contravention of the laws of Canada or a province.

For the purposes of deterring theft and vandalism and enhancing the security of employees, video surveillance was found to be reasonable and also useful as a tool for investigation. The Eastmond decision offers support to employers in determining how video surveillance can be used in compliance with privacy legislation.

CP’s purposes for collection: deterrence of theft; vandalism; and security of employees and investigation of reported incidents were found to be appropriate. How would the Federal Court’s decision have been different if the collection of personal information was used to measure productivity and an employee’s work performance? The court did state that CP could not have used the video images to measure an employee's productivity since such a use of the information would be a use for a purpose other than that which prompted its collection as a security measure. Unfortunately, no further direction was given from the court on workplace surveillance in the context of productivity and work performance. However, the distinction made by the court between surreptitious and open surveillance methods illustrates a need for the implementation of best practices in relation to the least privacy invasive tool to be used by employers when managing employees.

 
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