A one hour presentation to privacy lawyers on workplace privacy issues, including content on an employer's right of access to work system information and off-duty conduct issues.

1. Employee issues and privacy
CBA-NS Privacy & Access Law Section
November 5, 2014

2. Outline
• System access issues
• Off duty conduct
Employee issues and privacy

3. System access issues
• Management lawyer poetry?
Employee issues and privacy

4. System access issues
• The finding in R v Cole
• EEs have a reasonable expectation of privacy
• It arises out of permitted or tolerated personal use
• ERs can't contract out of it
• It is very limited – "not entirely eliminated"
Employee issues and privacy

5. System access issues
• The obiter in R v Cole
• ER had an implied power to search for the purpose
of maintaining a safe school environment
• Refers to M.M.R., in which the Court endorsed a
relaxed standard for an "orderly environment"
• "Reasonable and appropriate in light of the
circumstances presented and the nature of the
suspected breach of school regulations"
Employee issues and privacy

6. System access issues
• The situation for employers
• No unfavorable decisions about investigations by
arbitrators before or after Cole
• A couple decisions under privacy legislation that
deem "endpoint monitoring" to be unreasonable
• UBC spyware case
• Parkland Regional Library keystroke monitoring case
• A new basis for a privacy claim that rests on a very
limited expectation
Employee issues and privacy

7. System access issues
• The kind of problem arising
• Data compromise.
• Employee admits it happened. Claims negligence.
Provides e-mails.
• Employer faces potential multi-million dollar lawsuit.
Needs to rule out purposeful action and conspiracy.
• Wants to do a complete review of employee's e-mails.
Employee issues and privacy

8. System access issues
• Why employers should win
Employee issues and privacy

9. System access issues
• ERs should state their interests in AUPs
• Technical maintenance, repair and management
• Meet a legal requirement to produce
• Ensure continuity of work processes
• Improve business processes and manage
productivity
• Investigating and auditing for misconduct and non-compliance
with the law
Employee issues and privacy

10. System access issues
• ERs should highlight convenience
• Personal use is a convenience. If you want to
communicate or use the internet in private please
use a personal device unconnected to our network.
Employee issues and privacy

11. System access issues
• ERs should control audits and investigations
Employee issues and privacy

12. System access issues
• BYOD is different
• BYOD enrollment supports data security
• The reasonable expectation of privacy is quite high
• ERs contract for access despite the expectation
• If too aggressive, employees won't enrol
• "ER will exercise its right of access, if reasonably
possible, by working in cooperation with authorized
users. Authorize users agree to cooperate…"
Employee issues and privacy

13. Off duty conduct
• Is there an impact on a legitimate interest?
• Reputation
• Ability to do job
• Health and safety in the workplace
Employee issues and privacy

14. Off duty conduct
• Should the employee or public interest outweigh
the employer's interests?
• e.g. true love
• e.g. mildly communicated expression on matters of
public interest
• e.g. union expression
The balance is highly protective of employer interests, though there is a zone of privacy
in which employee and employer interests may be permitted to conflict.
See Fraser v PSSRB (SCC)
Employee issues and privacy

15. Off duty conduct
• True love
• Cape Breton-Victoria Regional School Board, 2011
NSCA 9
• Janitor (and not a teacher)
• "Consensual" relationship with 15 year old
• Developed outside the school environment
Employee issues and privacy

16. Off duty conduct
• Mildly communicated expression matters of public
interest
Employee issues and privacy

17. Off duty conduct
• Union expression
• Taylor-Baptiste (Ontario HRT)
• Sexist disparagement of manager by union leaders
• Interpret the scope-limiting provisions of Code in
light of section 2(b) and 2(d) of the Charter
• As such, conduct was not "in the workplace" and
was not "discrimination with respect to employment"
Employee issues and privacy

18. Employee issues and privacy
CBA-NS Privacy & Access Law Section
November 5, 2014