This article was originally published in Blakes Bulletin on Labour & Employment-November 2004
Québec, Alberta and British Columbia, along with the federal government, have each enacted comprehensive privacy legislation. Ontario has enacted more narrow personal health information protection legislation. More than one statute can apply to organizations with offices across Canada. Many organizations also have Canada-wide privacy policies, which add yet another layer of rules that must be considered when dealing with questions and complaints from employees and customers regarding personal information. Employers must now navigate a web of both law and internal policy when dealing with personal information and often have questions of their own.
FAQ 1. What are the requirements for consent?
One of the key aspects of Canadian privacy legislation is the obligation to obtain informed consent, usually before or at the time of collecting, using and disclosing personal information. Consent can often be implied as well as express. Employers may question whether they need consent in certain contexts and, if so, how to obtain it.
One factor relevant to the informed consent requirement is that individuals must have knowledge of the purposes for which their personal information is being collected, used and disclosed. The information must be in a format that the individual can reasonably understand, and the collection, use and disclosure must be within reasonable expectations.
Practical applications of the consent rule can be seen in findings of the federal Privacy Commissioner under PIPEDA.
When is consent implied? Consent may be implied when it can be shown that the purpose of the collection, use or disclosure of the information was reasonably obvious to the individual, where a reasonable person would expect the information to be collected, used or disclosed for those purposes, and where it is reasonable to assume the individual consented. However, where the personal information being collected, used or disclosed is "sensitive," obtain express consent.
Can employee sales results be posted? Many employers post the sales results of employees to create incentives, motivate and compare work performance. Individual sales performance is personal information, as well as being company information. In PIPEDA Finding No. 220, an employee did not expressly consent to the practice of her employer posting employee sales results, and objected to this practice. The Commissioner found the employer's managers made reasonable efforts to explain the reasons behind posting sales statistics and that the practice was common and widely known in incentive-based sales environments. In this case, the Commissioner found the employee was a willing participant in a competitive sales environment and ought to have reasonably expected the sharing of sales records in that environment.
Monitoring employee telephone calls? In Finding No. 153, two employees working as telephone operators complained that their employer collected statistics about their work performance by monitoring telephone calls. They argued this monitoring collected personal information about them without their consent. The Commissioner found that "… a reasonable person would likely agree it is appropriate for a company to monitor and evaluate the job performance of its employees and that since, in this case, an operator's main function is to answer customer calls, it is likewise appropriate for statistical information about these calls to be used to measure job performance." Most employers will be relieved to hear it is the Commissioner's view that performance evaluations form an integral part of the employment relationship. They are a condition of employment to which employees give implicit consent upon accepting employment with a company.
Communications with unions? In Finding No. 20, an employer refused an employee access to certain information and forwarded copies of its letter to union representatives and the co-ordinator of employee relations. The Commissioner said there would have been implied consent to send a copy of the letter to the union representatives only if the complainant had indicated she herself had sent them a copy of her initial request. Since she did not do so, consent could not be implied. This case was appealed to the Federal Court Trial Division and the court held that it did not have jurisdiction to decide the complaint. However, it did provide some clarity from a labour law context by stating that the employer had an obligation to disclose its response to the union. The disclosure was, in fact, "required by law" in accordance with Canadian labour laws.
What about SINs as identifiers? A Social Insurance Number (SIN) is personal information and considered "sensitive" under PIPEDA. Many employers use the SIN as an employee identifier. Recognizing the sensitivity of the SIN, some companies have adopted the practice of using the last four digits of the SIN as an employee identifier, rather than the full number. In Finding No. 146, the Commissioner found that the last four digits of a SIN are also personal information under PIPEDA. The company's argument that using these four digits did not compromise the security of an employee's personal information was held irrelevant since the issue was one of consent.
Background checks? Many employers perform background checks on applicants and employees and much of the information obtained, such as criminal records and credit scores, would be "sensitive" information. In Finding No. 127, an employer requested an employee consent to a security clearance check to work in a restricted area in an airport. The employee was faced with loss of employment if he refused. The employee argued that, since he might lose his job, his consent was neither informed nor voluntary. The employer argued that the security clearance was required as part of federal government policy. The Commissioner found that the complaint was not well founded since, at the time of hire, the employer had informed the complainant that a security clearance check might be required and that failure to consent could lead to termination of employment. Although the complaint did not succeed in this case, a similar complaint could succeed where security and public safety were not a primary concern. An employer may have some difficulty showing the reasonableness of requiring all employees and applicants to submit to background checks, especially in the context of non-safety sensitive positions.
Broadly worded consent forms? When a consent form is overly broad, it may not specifically identify the purposes for collection, use and disclosure and may not constitute proper consent in accordance with privacy legislation. Privacy legislation generally prohibits organizations from having unlimited discretion with, and control over, personal information. To make consent meaningful, the purposes must be stated in a manner that the individual can reasonably understand.
FAQ 2. What About Employee Monitoring And Surveillance Measures?
Where privacy legislation is applicable, consent is generally required if an organization wishes to collect personal information through monitoring or surveillance (including video surveillance), or through monitoring employee e-mail and Internet use. Employee productivity concerns, as well as employer confidentiality and liability concerns for inappropriate messages or Web material are recognized, but those concerns must be balanced with an individual's right to privacy of personal information.
PIPEDA contains exceptions that permit the collection and use of personal information without obtaining consent in certain exceptional cases. For example, consent is not required where it is reasonable to expect that, if an individual had knowledge of the collection in advance, the availability or accuracy of information would be compromised and the information relates to a breach of an agreement or contravention of a law of Canada. This exception is often relied upon by employers to collect personal information without consent through employee surveillance.
In various complaints, the Privacy Commissioner has commented on the exceptions of PIPEDA's consent requirement in the context of video surveillance.
An organization must have substantial evidence to support the suspicion that the employee is engaged in wrongdoing or that the relationship of trust has been broken. Anecdotes do not qualify as substantial evidence. An employer must be able to show it has exhausted other means of obtaining the information in a manner that was less intrusive and must limit the collection to the greatest extent possible. For example, if cameras are installed for security purposes, there may be no need to train them on employee work areas. A reasonable person must consider it appropriate to use the cameras to manage the problem at issue. If cameras are trained on areas where the employee has no expectation of privacy, the practice of video surveillance is more likely to pass scrutiny. The customary use of the cameras to enhance the safety of the workplace is appropriate, particularly if the cameras are installed subsequent to a risk analysis.
PIPEDA has also given rise to questions concerning the use of private investigators. In Ross v. Rosedale Transport Inc., an employer suspected an employee who claimed to be disabled. Video-taped evidence obtained by a private investigator convinced the employer that the employee was not disabled and that it had cause to dismiss the employee. An adjudicator refused to admit the videotaped evidence, finding the evidence inadmissible as it was obtained in breach of PIPEDA. In the adjudicator's view, the collection of the personal information was not reasonable for any purpose relating to a breach of the employment agreement.
In contrast, in PIPEDA Finding No. 269, an employer retained a private investigator to conduct video surveillance as a "last resort" to determine the veracity of claims made by an employee claiming to be disabled. Numerous efforts had already been made to obtain proper medical information. The employee was unco-operative and resistant to performing work duties. The employer made numerous requests of the employee to attend an independent medical assessment and, when the employee finally agreed, the employer's suspicions were supported by the attending physician. The Assistant Commissioner found that a private investigator conducting video surveillance was "extremely privacy-invasive" but found that the employer's actions fell within the consent exceptions. In this case, the employer had exhausted other means of obtaining the information and had reasonable grounds to suspect that the employee was not physically disabled.
FAQ 3. How To Deal With Access Requests?
PIPEDA sets out several other exceptions where consent is not required for the purposes of collecting, using and disclosing personal information. General exceptions include circumstances involving emergencies, national security and defence, statistical/scholarly research, compliance with a subpoena or warrant, and the conservation of records for historical or archival purposes. As well, information may be disclosed 20 years after the death of the individual or 100 years after the collection of the information. The provincial legislation contains similar, but not identical, exceptions.
Canadian privacy legislation also entitles individuals, including employees, to be informed of the existence, use and/or disclosure of their personal information, and to be provided with access to that information upon request. Access requests must be made by the individual in writing and the organization must respond to the request within 30 days (45 days in Alberta).
Except in Québec, an organization may request an extension of the time in which to respond. The information provided to the individual in response to an access request must be understandable. For example, any abbreviations or technical terms should be defined. The organization must also inform the individual of the uses it has made of the information and any third parties to which it has been disclosed.
An individual may challenge the accuracy and the completeness of the information. If an individual demonstrates that his or her personal information is inaccurate or incomplete, the organization must amend the information or, where the challenge is not resolved to the satisfaction of the individual, record the substance of the unresolved challenge and, where appropriate, transmit the amended information to third parties who have access to such information. Each of the privacy statutes sets out various exceptions to an individual's entitlement to access to his or her personal information. In certain circumstances, an organization must refuse access and, in other circumstances, the organization may choose whether or not to grant access. Examples of these exceptions are set out below.
Mandatory exceptions. An organization shall refuse an individual access to his or her own personal information where:
- It would cause immediate or grave harm to the safety or physical or mental health of the individual making the request (B.C.).
- Disclosure would likely reveal personal information about a third person (all jurisdictions), except where the third party consents (federal, Québec).
- Disclosure may seriously harm (or threaten the life, safety, mental health or security of) a third person (Québec, Alberta, B.C.), except where the third party consents (Québec).
- Disclosure would reveal the identity of an individual who has provided an opinion about another individual, and the individual providing the opinion does not consent to the disclosure of his or her identity. If this information could be severed, then the organization should release the remaining information (Alberta and B.C.).
- Information has been disclosed to a government institution for law enforcement or national security reasons and the government institution instructs the organization to refuse access or not to reveal the information has been released. The organization must refuse the request without disclosing information about the institution's request or objection and notify the Commissioner (federal).
- The request is from an administrator of a succession or the beneficiary of life insurance, unless the communication concerns the interests or rights of the person requesting it in his or her capacity as administrator or beneficiary (Québec).
Permissive exceptions. An organization may refuse an individual access to his or her own personal information:
- Where protected by solicitor-client privilege (federal, B.C.).
- Where protected by any legal privilege (Alberta).
- Where it is confidential commercial information, except where such information can be severed (federal, Alberta, B.C.).
- Where access could harm an individual's life or security if disclosed, except where such information can be severed (Federal).
- When collected for the purpose of collecting a debt owed to the organization itself (federal).
- Where information is generated during a formal dispute resolution process (Federal) or collected for an investigation, legal proceeding, mediation or arbitration (Alberta and B.C.).
- Where disclosure would be likely to hinder an inquiry the purpose of which is to hinder the prevention, detection or repression of a crime or statutory offence (Québec).
- Where disclosure might result in that type of information no longer being provided to the organization, when it is reasonable that that type of information would be provided (Alberta).
- Where it relates to or may be used in the exercise of prosecutorial discretion (Alberta).
- Where the organization is a credit reporting agency and the personal information was last disclosed in a credit report more than 12 months before the request was made (B.C.).
Generally, an organization must provide reasons for refusing access in writing and identify any recourse that the individual may have. If the individual is dissatisfied with the organization's refusal to provide access, he or she may file a complaint with the appropriate Commissioner. As well, where the subject matter of the request contains information about a third party, confidential commercial information or information that threatens a third party or the individual making the request, and can be severed, then it should be severed. The balance of the personal information should be disclosed in response to an access request.
Employers ought to proceed carefully when relying on these exceptions. In one PIPEDA finding, the Commissioner found that the exception for requests from a government institution did not apply because the employer had failed to verify the correctness of the authority cited by the governmental employer. Interestingly enough, the Commissioner stated it was incumbent on the company not to take the submissions of a governmental organization at face value.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.