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Workplace Privacy Here and Now<br />Dan Michaluk<br />February 3, 2011<br />OBA Institute - Fulfilling Your Privacy Obliga...
Outline<br />The four hot button issues relate to<br />The boundary between work and private life<br />The right of access...
Work Life Versus Private Life<br />Bob and Sue had a long day. They go to the Dirty Dog Pub after work and, over the cours...
Work Life Versus Private Life<br />Jack had a long day. He goes home, cracks open a beer, and boots up his home computer.<...
Work Life Versus Private Life<br />Duty of fidelity applies when employee expression is likely to significantly affect a l...
Work Life Versus Private Life<br />Employee speech can negatively…<br />…affect an employer’s duty to other employees<br /...
Work Life Versus Private Life<br />Cape Breton-Victoria Regional School Board<br />From NSCA on January 25th<br />Recogniz...
Access to “Personal” Communications<br />Employers need access to their systems<br />Text messages can be incredibly usefu...
Access to “Personal” Communications<br />Unfettered right or access is dying a slow death<br />Lethbridge College – Arbitr...
Access to “Personal” Communications<br />What does balancing look like?<br />The College recognizes the value of being abl...
Access to “Personal” Communications<br />What does balancing look like?<br />However, the College does perform periodic ra...
PIPEDA Application<br />Pre State Farm – Are we PIPEDA regulated?<br />We use service providers as processing agents<br />...
PIPEDA Application<br />State Farm - Landmark<br />Insurer conducts surveillance for insured defendant (through its counse...
HO-010 – Managing Employee Malfeasance<br />Unauthorized access by diagnostic imaging tech.<br />Second similar breach at ...
HO-010 – Managing Employee Malfeasance<br />Findings on duty to manage malfeasance<br />Unreasonable to continue access wi...
HO-010 – Managing Employee Malfeasance<br />Suggestion that identity of wrongdoer and penalty imposed should be published<...
Workplace Privacy Here and Now<br />Dan Michaluk<br />February 3, 2011<br />OBA Institute - Fulfilling Your Privacy Obliga...
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Workplace privacy here and now

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Transcript of "Workplace privacy here and now"

  1. 1. Workplace Privacy Here and Now<br />Dan Michaluk<br />February 3, 2011<br />OBA Institute - Fulfilling Your Privacy Obligations<br />
  2. 2. Outline<br />The four hot button issues relate to<br />The boundary between work and private life<br />The right of access to stored communications<br />PIPEDA application to employment in the province<br />HO-010 – Managing the risk of employee malfeasance<br />
  3. 3. Work Life Versus Private Life<br />Bob and Sue had a long day. They go to the Dirty Dog Pub after work and, over the course of four hours, take jabs at their supervisor, Phil.<br />
  4. 4. Work Life Versus Private Life<br />Jack had a long day. He goes home, cracks open a beer, and boots up his home computer.<br />Using a picture of his supervisor taken from the company intranet and some internet based software, he alters the picture so the manager looks ridiculous.<br />Jack posts it to his Facebook page. He feels good.<br />
  5. 5. Work Life Versus Private Life<br />Duty of fidelity applies when employee expression is likely to significantly affect a legitimate employer interest<br />All other activity is “private”<br />The kind of social interaction we engage in today is more likely to conflict with employer interests<br />
  6. 6. Work Life Versus Private Life<br />Employee speech can negatively…<br />…affect an employer’s duty to other employees<br />…affect an employee’s ability to do his/her job<br />…affect public perception of employee performance<br />…affect an employer’s reputation<br />
  7. 7. Work Life Versus Private Life<br />Cape Breton-Victoria Regional School Board<br />From NSCA on January 25th<br />Recognizes potential harm to reputation, but no jurisdiction to impose penalty in circumstances<br />Likely means that potential harm to reputation can only be acted upon if “substantial and warranted”<br />If that’s balancing at the threshold, okay<br />
  8. 8. Access to “Personal” Communications<br />Employers need access to their systems<br />Text messages can be incredibly useful in an investigation<br />Three rights<br />Routine monitoring (limited and needs based)<br />Periodic audit (standard)<br />Investigation on reasonable suspicion (standard)<br />
  9. 9. Access to “Personal” Communications<br />Unfettered right or access is dying a slow death<br />Lethbridge College – Arbitrator Ponak, 2007<br />Johnson v. Bell Canada – Fed Ct., 2008<br />Cole – Ont. S.C.J., 2009<br />Tfaily – Ont. C.A., 2010<br />City of Ottawa – Ont. S.C.J., 2010 (subtext)<br />
  10. 10. Access to “Personal” Communications<br />What does balancing look like?<br />The College recognizes the value of being able to work and study without concern of being under constant surveillance and therefore does not routinely monitor the activities of individuals.<br />
  11. 11. Access to “Personal” Communications<br />What does balancing look like?<br />However, the College does perform periodic random audits to ensure acceptable network use and will investigate situations based on a reasonable suspicion of breach. As such, users should have no expectation of privacy when using the College’s network.<br />If you wish to send personal communications that are private you should not use the College network.<br />
  12. 12. PIPEDA Application<br />Pre State Farm – Are we PIPEDA regulated?<br />We use service providers as processing agents<br />They have no independent interest in the information<br />They handle personal information in our stead<br />But we pay them<br />
  13. 13. PIPEDA Application<br />State Farm - Landmark<br />Insurer conducts surveillance for insured defendant (through its counsel, as agent)<br />Insurer does have an independent interest in collection… insurer does get paid<br />But no a collection in course of commercial activity… this is about defending a civil claim<br />Ratio – construe the essence of the activity<br />More flexible than agency… more ambiguous<br />
  14. 14. HO-010 – Managing Employee Malfeasance<br />Unauthorized access by diagnostic imaging tech.<br />Second similar breach at hospital (see HO-002)<br />Limited role-based access restrictions on health care providers (access to systems and not within systems controlled)<br />All systems not audited<br />
  15. 15. HO-010 – Managing Employee Malfeasance<br />Findings on duty to manage malfeasance<br />Unreasonable to continue access without a written undertaking to abide by rules (ordered)<br />Hospitals must report to regulatory college (ordered)<br />Complainant has right to know what discipline was imposed<br />Post-breach communiqué to employees called for (ordered)<br />
  16. 16. HO-010 – Managing Employee Malfeasance<br />Suggestion that identity of wrongdoer and penalty imposed should be published<br />A suggestion at best… not backed by order or reasoning in text of order<br />Not normative in employee and labour relations<br />Seems mean-spirited<br />Raises defamation issues<br />
  17. 17. Workplace Privacy Here and Now<br />Dan Michaluk<br />February 3, 2011<br />OBA Institute - Fulfilling Your Privacy Obligations<br />
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