According to a 2007 Statistics Canada study entitled “Time spent with family during a typical work day, 1986 – 2005”, workers in Canada spent an average of 45 minutes longer at work in 2005 than they did twenty years earlier.
During the same period, there was an exponential increase in the amount of time that employees spent in front of a computer screen at work. Many employers also expect employees to be available 24/7 via personal assistive devices (Blackberrys, iPhones, etc.).
It’s clear that people are spending more time, both at work and in non-working hours, on employer-owned electronic devices. One question arising out of this is “is an employer entitled to know what an employee does on an employer-owned electronic device?”. Perhaps more importantly, “can an employer control what an employee does on it?”
From a purely statutory perspective, pursuant to the Personal Information and Protection of Electronic Documents Act, a provincially-regulated employee in the province of Ontario has no right to privacy in the workplace. As a result, an employer can review whatever an employee does on a work computer. However, in today’s society, many employees believe they have a right to privacy in the workplace, including on their electronic devices.
The Ontario Court of Appeal confirmed this belief in a recent groundbreaking decision (R. v. Cole [2011] O.J. No. 1213 (QL)). The case involved a police search of an employer-owned laptop computer used by a high school teacher which turned out to contain pornographic images. The Court of Appeal held that employees have Charter-based privacy rights over personal information stored on work computers. In this precedent-setting decision, the Court held that, absent a clearly worded employer policy: “the [employee] had a reasonable expectation of privacy in the personal use of his work laptop… Access to that information on the hard drive potentially exposed intimate details of the appellant’s personal choices and could have exposed intimate details of a personal nature.” As a result, the Court held that a police search of the employee’s computer was not reasonable as it violated the employee’s Charter rights.
As time spent at work increases, and as employees are expected to become more and more connected via computers and electronic devices, it should be no surprise to employers that employees use work devices for personal purposes. This only becomes a potential problem when employers want to keep tabs on this type of use.
The long-term effect of this decision on workplaces generally remains to be seen. However, prudent employers will review and consider revising (implementing, if necessary!) Computer Usage Policies to clearly set out the company’s expectations for personal use of its computers and other electronic devices.