Employers have an interest in ensuring that computer systems in
the workplace are used for proper purposes and not for unlawful
conduct, information theft, harassment of other employees, and
other similar improper uses. In order to monitor workplace computer
use, employers have access to third-party software programs that
collect and analyze all activity on company computers. This is
primarily done by recording and analyzing keystrokes, taking
screenshots of employees' computers (often taken every two or
three minutes), and using keywords to search for possible
violations of employer policies with respect to the use of
Monitoring software will normally include a review of emails,
instant messages, websites visited, and online searches. The
software can monitor and collect the information in real-time on an
ongoing basis. Despite the availability of monitoring technology,
employers must balance monitoring workplace computer use against
the legally protected privacy rights of employees.
Is Personal Computer Use Allowed? Actual Reality of Workplace
Many employers establish written policies dealing with employee
use of workplace computers, and employees are often required to
sign these policies. In most cases, the written policies set out
the guidelines for workplace computer use and also advise employees
that their computer system use is subject to employer
Such policies, however, would only remove the privacy rights of
employees in limited circumstances. When the courts or other
tribunals are considering the privacy rights of employees, they are
guided by the actual reality in the workplace with respect to
It is very common that employers permit employees to use
workplace computers for personal reasons provided the personal use
is fairly minimal. For example, if employees are permitted to send
personal emails, or to access their bank account online, then
personal use by employees is permitted. Once that is the case, the
employees have a reasonable expectation of privacy with respect to
their personal use of the workplace computer. Except in unusual
circumstances, the employer is not permitted to read or monitor
their personal emails, take screenshots of their banking
transactions, or engage in any other intrusion into their private
information. In addition, the law is that an employee's privacy
rights include information about which websites the employee has
visited. Monitoring software does not make any distinction between
personal and business use. All emails are monitored. Screenshots
are taken without regard to what is on the screen. All Internet
browsing is tracked. The monitoring itself then becomes a violation
of the privacy rights of employees.
In each case, the court will consider whether the employer
permits employees to use the computers for personal use. If
personal use is permitted, even to a limited extent, a policy that
purports to remove the employee's right to privacy will be
unenforceable. Any breach of an employee's privacy rights is an
offence under the applicable privacy legislation.
If, however, an employer prohibited personal use of workplace
computers by employees and actually enforced that policy, the
reality in the workplace would be that no personal use of workplace
computers is permitted in any circumstance. In this case, the
written policy dealing with monitoring by the employer would likely
be enforced. That, however, is not the normal scenario in the
If an employer is conducting an investigation into a specific
complaint with respect to an employee, the employer would have more
power to review computer records. This would still be subject to
the test of whether or not the employer has any reasonable
alternatives to carry out the investigation without infringing on
the employee's privacy rights. If the employer is not able to
meet that test, then any evidence gathered through the computer
system will not be admissible evidence against the employee in a
Can Employees Expect Digital Privacy in the Workplace?
If employers allow employees any personal use of workplace
computers, employees have a reasonable expectation of privacy with
respect to their personal use of the computer system. This must be
respected by employers. A monitoring system that reviews the
personal use of the computer system by employees in those
circumstances is a violation of the privacy rights of the
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.
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