29 April 2004 Workplace Privacy Gets Day in Court Every time Erwin Eastmond goes to work, he is being watched.   Cameras set up around Canadian Pacific Railway Ltd.'s maintenance shop in Scarborough, Ont., make it impossible for the 200 workers in the facility to avoid having their movements tracked by an array of security cameras. And that, Mr. Eastmond says, "makes us very uneasy."   So uneasy that Mr. Eastmond, a diesel engine electrician, lodged a complaint last year with the Privacy Commissioner of Canada. It has led to a landmark federal court case over surveillance in the workplace that was argued before a justice last week.   The case has become the biggest test to date of Canada's legal protections for the privacy of Canadian workers from a proliferation of sophisticated and inexpensive monitoring technology.   "We feel we are under pressure because you have to wonder who is watching," Mr. Eastmond says.   Many other employees would agree. Technologies to monitor workplaces have become unavoidable facts of life. A survey by the American Management Association in New York found that 77 percent of major U.S. firms in 2001 recorded and reviewed employee communications and activities on the job - a figure that had doubled in just four years.   More than one-third of companies surveyed said they do video security surveillance and 15 percent said they keep tape or digital recordings for review of employee performance.   Most of the firms reported they both review and record telephone conversations, voice-mail and e-mail messages, and monitor what websites employees go to. Many said they also routinely record the time logged onto a computer and the number of keystrokes people make in a day.   Although similar statistics are not available for Canada, David Zweig, an assistant professor in management at the University of Toronto, believes an equivalent level of employee monitoring is happening in Canadian businesses.   The watching is, if anything, increasing at a faster pace in the "new normal" obsession with security in the post 9/11 era, Prof. Zweig says.   "Organizations are increasingly looking at electronic monitoring as the silver bullet, because it is readily available and it's cheap," he says. "Employers expect monitoring will safeguard the workplace while at the same time making employees work harder. But it is not that simple."   In a study of attitudes toward workplace surveillance Prof. Zweig did last year in association with Queen's University professor Jane Webster, 1,200 students and workers were nearly unanimous in saying they were uncomfortable with monitoring that records continuing details of their activity and appearance.   As an example, Prof. Zweig says computer workstations can now routinely be equipped with Web-enabled cameras, which employers tout as a means to ease communications between team members who are teleworking or stationed at remote locales.   "What came up time and time again as a concern in the study was, even though a technology isn't positioned as a tool to monitor performance, that's exactly what it would be used for. A manager would click on the image to see if I'm at my desk working," Prof. Zweig says.   In addition, sociological studies show people who are being watched try to find ways to stay out of the constant gaze of a monitor. He suggests workers may try to find ways to subvert the systems.   Mr. Eastmond says that cameras definitely had a disruptive effect on worker morale in the CPR repair shops, where he has worked for 28 years. "We were all talking about it. It just seems like an invasion of our privacy," he says.   Calgary-based CPR installed the half-dozen cameras in the fall of 2001 because changes in operations were requiring more outside workers in the maintenance areas, CPR spokesman Paul Thurston says.   The installation was planned before the terrorist attacks in September, 200l, but that increased the company's concerns about heightening security at the installation, he adds.   Mr. Eastmond, the Canadian Auto Workers union local's representative for employment issues, contacted the privacy commission in Ottawa two years ago. After sending inspectors to the maintenance yard, the commissioner last fall found that the workers' complaints were justified.   But the cameras remain in use. The commissioner is required to try to settle complaints through "negotiation and persuasion," but has no authority to order the cameras removed. That prompted the CAW to go to federal court, which has the authority to order the company to remove the cameras.   On April 19, lawyers for the union appeared in the Federal Court of Canada in Toronto, asking the court to order the cameras removed. Lawyers for CPR argued that the complaint should be a grievance issue and is not in the court's jurisdiction.   CAW chief counsel Louis Gottheil says he would like to see a ruling from federal court trial division Justice Francois Lemieux as soon as possible because it would set a precedent for the right to privacy in the workplace.   Meanwhile, the privacy issue and the lack of legal definition of intrusive monitoring have become such complex issues that a three-day conference on privacy is scheduled in Toronto beginning 17 May 2004.   Nymity Inc., a Toronto-based privacy consulting firm, is bringing in legal experts to discuss the difficulty of balancing employers' needs to monitor their workplaces with the rights of employees.   Corporate privacy officers and lawyers will discuss how far video, e-mail and computer surveillance can go. A major session will be on how companies can create privacy policies to avoid liability. (Details are on the website http://www.nymity.com).   Specifically spelling out the dos and don'ts in the law would make everyone's life easier, says lawyer Jonathan Cocker, one of the scheduled conference speakers.   The Toronto-based associate of the international commercial law firm Baker & McKenzie says he has been approached by dozens of businesses to lay out their options on surveillance.   "It is frustrating for companies because they want to have a concrete set of rules and a very clear path," he says.   But the right to privacy from prying technology in the workplace is not specifically spelled out in legislation. The federal Charter of Rights and Freedoms, for instance, provides protection against unreasonable search and seizure but does not cover surveillance.   Nor is the Privacy Act any help, Mr. Cocker says. "The requirement for gathering of information on employees is that it be 'reasonable under the circumstances,' but that is a nebulous concept."   The privacy commission has received an increasing number of employee complaints about audiotaping of conversations and monitoring of e-mail since January, says Anne-Marie Hayden, spokesperson for the Privacy Commission.   That's when the Personal Information Protection and Electronic Documents Act (PIPEDA), a companion to the Privacy Act that regulates the collection of personal information, was expanded from covering only federally regulated workplaces to include the private sector.   PIPEDA does not specifically mention monitoring of employees, but it requires employers to clearly spell out the reason they collect personal information about employees and to inform people of how it will be used.   Because of the lack of guidance in Canadian legislation, federal Privacy Commissioner Jennifer Stoddart is calling for an urgent review of the Privacy Act to bring it into the technological age.   In a speech to a meeting of law makers and freedom-of-information experts in Ottawa on 1 April 2004, she offered to help draft the changes because the need for reform is "compelling."   The Privacy Act dates from 1983 and has not been reviewed since 1986, she said.   "When the act was passed, computer databases were in their adolescence [and] the Internet was unheard of outside narrow technical circles. Technologies confronting us now with their extraordinary surveillance potential - digital video cameras, biometrics, genetic testing, event data recorders - were more or less science fiction when this law was drafted."   However, Michael Geist, a professor of law at the University of Ottawa, says the courts can't wait until it's all spelled out in legislation.   "There is no doubt the technology is there and companies want to use it, but just because the technology is available doesn't mean that it's a free-for-all," Prof. Geist says.   "I see the law having to strike a balance between appropriate use of technology and use of less invasive approaches."   In a continuing study he is doing of legal trends, he found that, in the past, judges and labour arbitrators in Canadian union grievances tended to rule that employees didn't have a reasonable expectation of privacy because employers set the terms of employment.   But he said last year's CPR ruling and two others that were released this week by the Privacy Commission show that there is a shift in thinking now toward requiring the company to prove that the technology and the way it is used is reasonable.   In her first ruling yesterday, the Privacy Commissioner upheld a complaint by two employees of a railway, which was not identified, that used evidence taken by a security camera to discipline the employees for being off company property without permission.   Ms. Stoddart ruled the complaint was well-founded, although she agreed that video monitoring can be appropriate to enhance safety of the workplace.   However, "a reasonable person would not consider it appropriate to use the cameras to manage a workplace performance issue." The company did not present evidence the company had tried less intrusive methods, the ruling added.   In a second ruling, the commissioner rejected as "not well-founded" a complaint by an employee who complained about a pass system that uses video images to help security employees verify the identity of someone coming into the workplace.   "The commission is requiring reasonableness, asking what intrusive steps have you taken that is seen as less privacy invasive before you move to some of the more invasive technologies," Prof. Geist concludes.   Another area that requires immediate attention is the monitoring of employees' e-mails, Mr. Cocker says. Arbitrators in labour grievance cases where the issue has come up have supported companies' rights to monitor, as long as they have a clear policy that lays out the reasons for the monitoring and informs employees that it is being done, he says.   But Mr. Cocker maintains that could be challenged by an employee as an invasion of privacy.   "Simply having a policy encoded is not an absolute justification for an employer to monitor e-mail, any more than having a policy on drug testing justifies regularly drug testing employees," he says.   Mr. Cocker predicts that, when a case reaches the courts in which an employee seeks damages for breach of privacy because of surveillance, it will quickly focus the attention of law makers on the issue.   "Once that happens, employers are going to become increasingly concerned that the government set definitive guidelines," he says.   Striking a balance   Does an employer have the right to spy on employees after work?   An Alberta decision this month upheld the videotaping by Edmonton's transit department of an employee who had claimed disability but was doing lifting, bending, jumping and climbing in public.   When the man was fired, the Amalgamated Transit Union filed a grievance claiming the surveillance was illegal because it violated the employee's rights under the federal Charter of Rights and Freedoms.   The grievance was dismissed by a three-member labour arbitration board and the union appealed the issue to the provincial court.   But in a ruling on 13 Apr 2004, Mr. Justice Terrance Clackson of the Court of Queen's Bench of Alberta backed the arbitration board.   He wrote that the Charter of Rights does not include a general right to privacy.   "Therefore, I find it inconceivable that employees would have such a right when other Canadians do not."   The Edmonton ruling is similar to a 1999 Toronto decision in which the Toronto Transit Commission submitted videotape evidence that an employee was able to do tasks in public that he claimed he was unable to do on the job.   In that case, a labour arbitrator admitted the surreptitiously taken video as evidence, ruling there is no reason for people to expect privacy from surveillance of activity in a public place.   The courts are striking a balance between the right to privacy and the need to enforce laws and prevent such things as fraud, says Michael Geist, a professor of law at the University of Ottawa.   "Whether at work or at home, our right to privacy is necessarily limited by other goals," Prof. Geist says.   Snoop tools   Ever more sophisticated monitoring devices are being used to keep tabs on where employees go and what they do in many Canadian workplaces.   Here's a sampling:   Stealth cameras. These can be so tiny, they can fit inside clock dials, smoke detectors, teddy bears or boxes of tissue. Starting at about $150, they are being offered on dozens of websites. One billed as the "world's smallest wireless camera" is smaller than the nine-volt battery that powers it and can transmit video signals more than 300 metres, according to the website http://www.security-and-surveillance.com.   Video security cameras. Most bank branches and many stores in Canada have several of these inexpensive ceiling-mounted units that can keep a taped record for review.   Webcams. Software loaded in employee computers can allow a supervisor to monitor an area through the camera installed on a personal computer in a work station.   Phone registers. "Your call may be monitored for quality control purposes" is a standard message people receive when dialling call centres. Automated monitors that record several days' worth of messages and keep logs of time, date and length can be purchased for a few hundred dollars.   Global positioning system tracking. Every few seconds, a small weatherproof device that costs less than $1,000 and can be attached to the frame of a vehicle will send a message about the precise location of a salesperson or shipment.   Infrared sensors. Can identify a person even in pitch darkness. Even a unit that costs a couple of hundred dollars is sensitive enough to read a licence plate in the dark at 40 metres.