The Assistant Privacy Commissioner of Canada recently found that an employer’s use of web cameras in the workplace contravened the Personal Information Protection Electronic Documents Act (“PIPEDA”).
The employer, an internet service provider, installed two web cameras in one of its offices. The cameras were in plain view and had notices posted on them advising employees that that area may be monitored over the internet and that images may be viewed by managers. The cameras transmitted images, but did not record them. Managers accessed the images only during hours when they were not present at the work site.
A former employee complained to the Privacy Commissioner that the cameras violated employee privacy in contravention of Section 5(3) of the PIPEDA. Section 5(3) establishes that an organization may collect, use or disclose personal information only for purposes that a reasonable person would consider appropriate in the circumstances.
The employer argued the cameras were justified for two reasons: first, to ensure workplace security and second, to manage employee productivity. With respect to security, the employer argued that the cameras enabled it to monitor the presence of unauthorized persons, false security alarms and occasional allegations of theft or harassment in the workplace. The employer alleged that productivity declined once managers left the site. It said that less intrusive measures had proven ineffective to address productivity concerns, and that for cost reasons it was not prepared to hire additional supervisors.
The Assistant Commissioner rejected the employer’s arguments and held that the installation of the web cameras contravened Section 5(3). On the security issue, she held that monitoring for unauthorized entry could have been addressed by installing security cameras at entry and exit points. Second, the employer failed to provide evidence that theft, harassment, or false security alarms were sufficiently prevalent as to justify the use of surveillance.
The Assistant Commissioner also concluded that it was unlikely that a reasonable person would consider that employee productivity concerns justified camera installation. She noted that the employer had other productivity measures in place. Further, the employer did not properly assess the feasibility of hiring additional managers or re-arranging shift schedules of existing managers. For these reasons, she found that the employer’s objectives could have been achieved in a less intrusive manner. She recommended that the employer remove the cameras and provide written confirmation within 45 days.
These findings are generally consistent with arbitral requirements that an employer must provide sufficient, reasonable justification for measures that are as potentially intrusive upon employee privacy as camera surveillance.