• Personal Use of Work Tech Best Addressed by Policies
  • May 2, 2017 | Author: Deborah Howden
  • Law Firm: Shibley Righton LLP - Toronto Office
  • When White House Press Secretary Sean Spicer asked members of his communications team to surrender their mobile phones for a search, it raised questions about whether employees have a right to privacy on work-issued devices, says Toronto labour and employer lawyer Deborah Howden.

    As technology blurs the line between work and personal spaces, employer-issued devices such as cellphones and laptops are being used more often for personal tasks, and, as such, contain private and sensitive information about the user, she tells AdvocateDaily.com.

    “In an ideal world it's smart to have separate cellphones for work and personal use, but it’s getting increasingly difficult to do that,” she says.

    Before the advent of technology, Howden says it was much easier to draw the line between work and personal life, but it’s tougher now and that’s creating challenges for employers and employees.

    “It used to be what you did on your own time away from the workplace was generally your business and what you did at work was the employer’s affair. But in the age of smartphones, the Internet and social media, that's changing, and what you do on your own time can have ramifications on the employer,” she says.

    Organizations intent on ensuring that computers and other electronic devices are used strictly for business purposes should have clear policies stating that, says Howden, a partner with Shibley Righton LLP.

    “With all employer-issued electronic devices - phones, laptops, tablets - the employee’s expectation of privacy often boils down to whether some incidental personal use is allowed, and that’s often the case for professionals,” she points out.

    So if an employer suspects that sensitive corporate information has been leaked from an internal source, and requests a search of employees’ phones and computers, what recourse do employees have?

    One option is to just say no, Howden says.

    “Employees can refuse, saying they have a legitimate privacy interest in the personal information stored on the phone and are not prepared to surrender it. However, they run the risk of insubordination and being subject to corrective action. That said, the Supreme Court of Canada has been clear that employees can have a reasonable expectation of privacy even in devices that are owned by the employer,” she says.

    In Jones v. Tsige, 2012 ONCA 32 (CanLII), the court confirmed that intrusion upon seclusion was a cause of action, essentially allowing people to sue for invasion of privacy, Howden says.

    “Although we don't have a provincial privacy statute to recognize this type of action, the Court of Appeal carved one out saying, where the employer’s conduct is intentional and is shown to have invaded privacy in a manner a reasonable person would regard as highly offensive or causing distress or humiliation, that employee may be entitled to damages for invasion of privacy,” she says.

    In R. v. Cole, 2012 SCC 53, the SCC ruled that when incidental personal use is permitted on electronic devices owned by the employer that random, indiscriminate or expansive searches of those devices without justification is unreasonable.”

    There are some situations that might strengthen an employer’s case for taking such a drastic measure, Howden says.

    “Let’s say the employer has a legitimate interest in reviewing an employee’s telephone activity. In that case, the employer should narrow the scope of the search, so that it only reviews the employee’s telephone history, but not Internet sites accessed or photos stored on the phone, for example,” she says.

    Again, Howden says, there’s no substitute for a protocol that spells out when the company will search these devices.

    “I can't stress enough that clear and consistently enforced policies make the employers' interests apparent, and put employees on notice around the terms of their employment and the scope of searches,” she says.