Surveillance cameras
Many workplaces have surveillance cameras, and when used properly, they can contribute to a safe workplace. When abused, however, they can damage your employees’ psychological safety (especially when you improperly use what’s recorded on the cameras against them). If the recording comes as a result of analyzing surveillance footage, it’s important to note that in Canada, surveillance cameras can only record video in workplaces and public areas. The only exceptions to this rule are if the cameras are in a private residence, or if your employees have signed a contract explicitly permitting you to record audio and video of them through your cameras. You also need to make sure the surveillance is “overt.” This means the camera is in plain sight, and signs or other literature in the business explicitly state that you are recording audio and video. You cannot plant a hidden camera in your business for surveillance, whether that’s surveillance of customers or employees. Any recordings captured from surveillance cameras that don’t meet these guidelines and are not agreed to by the parties being recorded are considered illegal. Trying to rely on these recordings in a court of law, especially employment law, can land an employer in significant trouble, as this is typically a serious violation of both federal and provincial privacy legislation.
Audio recording
Audio recording of employees is another delicate matter, but in Canada, as long as one party is privy to the conversation being recorded, it is generally permissible. An example of scenarios like this includes recording a disciplinary meeting between a supervisor and their direct reports. It does not matter that the direct reports aren’t aware of the conversation being recorded by the supervisor—as long as an agent of the company (e.g. the employer) is aware that the conversation is being recorded, it is generally permissible. An employer cannot, however, record a conversation between two employees who are unaware they are being recorded. This is because both employees are privy to the conversation, while the employer is not (unless they sign an explicit agreement waiving their right to privacy).
Are you privy to the conversation?
Being privy to a conversation makes a major difference between something being allowed but unethical or illegal. An employer is considered privy to a conversation when all parties are aware of the employer’s involvement in it. Employers cannot order one of their employees to record a conversation with another employee to review the audio at a later time, for example. This scenario would only be allowed if the employee ordered to record the conversation made it clear to the other parties of the conversation that they were being recorded. Employers also cannot wiretap areas of their workplaces to passively pick up on audio in the area, unless signage or literature makes it clear. Employees also get the chance to opt out of the surveillance once made aware of it.
Variables to remember
Another thing to consider is the concept of a reasonable expectation of privacy. Employees on company grounds, using company-provided phones and/or computers on company-provided internet generally do not have a reasonable expectation of privacy. Much like an employee can be disciplined for using company computers to view inappropriate or non-work-related material, they can also be disciplined for messages or other communications sent over these networks. As an employer, you have a right to monitor these devices and networks as you please, as long as you set this out when you hire your employees. This typically takes the form of an end-user agreement that must be signed as part of the onboarding process. If, after signing this document, you find out an employee is using their company-provided e-mail address on a company-provided computer connected to company-provided internet to bully or harass people or otherwise contravene your company’s code of conduct, you have the right to take disciplinary action as spelled out in the end-user agreement and employment contract.
Recording can go both ways
Just as an employer can record conversations with employees that they’re privy to, employees can record conversations they have with the employer (and in fact, many disgruntled and dissatisfied employees may choose to do this). If an employer discovers that conversations with an employee are being recorded without consent, the employer can terminate them (provided that an agreement in place has been breached). The question then becomes whether or not the termination is “with just cause.” If there are not sufficient grounds to terminate an employee for just cause, they may be terminated after providing reasonable and adequate notice, though this can vary from province to province and in federally regulated workplaces. Generally, the amount of notice (or pay in place of notice) depends on how long the employee in question has worked at your company.
Please note that, at the time of this article’s writing, the companies, institutions, or organizations mentioned in this article may or may not be affiliated with Indeed, and their mention in this article does not imply a business relationship with Indeed.
