Can big brother come to work?

More and more questions are being asked about the limitations on the right of an employer to use video surveillance in the modern workplace. Video surveillance falls under the legal umbrella of collecting personal information, which directly includes five different Acts, and many more statutes have indirect application.

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When determining which Act governs a workplace, caution should be exercised by the parties and professional advice should be obtained. Different Acts and law may apply depending on whether the organization is federal or provincial government, municipal, a health authority, non-profit, a private enterprise operating independently or an organization contracting with the government.

There are, however, general do's and don'ts that can help clarify the situation.

Each workplace should have a privacy officer appointed specifically to deal with the collection of private information. The privacy officer should be aware of the law as it applies to their specific organization and keep current on changes and updates that may affect their workplace. Additionally, the privacy officer should be in charge of developing and maintaining an effective privacy policy to deal with video surveillance information and issues, as well as the collection and use of personal information.

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The employer should be prepared to advise an employee of the video surveillance policy upon request (or better yet, advise on an ongoing basis). Further, the employer should be prepared to provide the employee access to footage collected of the employee or provide justification for not doing so.

The first place that either party should look for limitations on the use of video surveillance outside of the Acts is the collective agreement, if there is one. The collective agreement may stipulate conditions and guidelines for the parties to follow when using video surveillance.

Employers should avoid training cameras on areas or entrances to areas where the employees have a reasonable expectation of privacy. These areas have been held to include restrooms, staff rooms, employee lounges, staff cafeterias and other similar spots.

Employers should obtain some form of consent to the collection of information by video surveillance. This can be a formal signed consent, or the implied consent given by entering on the monitored premises with knowledge of the video surveillance. Employees and the public should be informed of the presence of cameras by the posting of signs at all entrances to the property. Employers must note, however, that situations of employees giving implied consent by entering the property are different than those of the public, since employees have little or no choice as to whether they enter the work place.

Because employees are in a position where the argument of implied consent may not stand, extra caution should be used if cameras are placed in employee-only areas. Cameras should focus on areas containing valuables, items sensitive to damage or loss, general traffic areas or areas where theft or vandalism have occurred. The courts have held that training cameras on specific work stations or workers suspected of improper activities may not be within an employer's rights.

If cameras are set up in strategic areas that may capture an employee's movements, or infringe on an employee's right to privacy, the film, computer files and monitors should be kept in a separate area with restricted access. Footage gathered should be confidential and viewed only by persons who have been authorized to do so. Safety measures such as the requirement of a triggering event to justify review of the tapes should be employed. Destruction of the footage within a specified time, if no triggering event occurs, is advisable and the footage should not be reviewed for performance-monitoring purposes.

The use of video surveillance in the workplace can be a useful tool in ensuring safety of employees and work place security. Still, the use of hidden cameras has been met with resistance by employees and the courts. The best policy is to "show and tell," as hidden cameras are a last resort to use when all other avenues are exhausted.

Doc is a lawyer with Wallace Meschishnick Clackson Zawada in Saskatoon.

Questions or comments on this article can be sent to him at [e-mail]