Canadian HR Reporter

CANADIAN HR REPORTER March 6, 2017 INSIGHT 19 Recovering electronic devices from employees who've been dismissed Liability risks surrounding personal files on devices are governed by privacy legislation Question: Are there any liability risks regarding privacy if an employer con- fiscates a work laptop or mobile device from a dismissed employee that is full of the employee's personal files? Answer: e liability risks sur- rounding personal files on em- ployer-owned electronic devices that were used by a dismissed employee are governed by privacy legislation. e federal Personal Information Protection and Elec- tronic Documents Act (PIPEDA) governs private sector employers, except those in provinces with substantially similar legislation: British Columbia, Alberta and Quebec. is discussion will focus on the federal PIPEDA; please re- fer to your provincial legislation if applicable. Personal files on a dismissed employee's work-issued elec- tronic devices are the employee's "personal information," which is defined as information about an identifiable individual, where there is a possibility an individual could be identified through that information. Privacy legislation imposes strict obligations on or- ganizations regarding the collec- tion, use, disclosure and retention of personal information. When an employer recovers electronic devices that contain personal files, this amounts to the collection of personal informa- tion. Employers have obligations under PIPEDA with regard to the collection, use and disclosure of personal information: • Organizations are responsible for personal information under their control. • e purpose of the collection, use or disclosure of the informa- tion must be one a reasonable person would consider appropri- ate in the circumstances. • e knowledge and consent of the individual are usually re- quired before personal informa- tion may be collected. • e collection of personal infor- mation must be limited to that which is necessary for the pur- pose identified. • Personal information must not be used or disclosed for purposes other than those for which it was collected. • Personal information must be retained only as long as is necessary. • Personal information must be as accurate, complete and as up-to- date as is necessary for the pur- poses for which it is to be used. • Personal information must be protected by security safeguards. • An organization must make readily available to individuals specific information about its policies and practices relating to the management of personal information. • Upon request, an individual must be informed of the exis- tence, use and disclosure of her personal information and be given access to that information In most cases, there is no rea- sonable or appropriate purpose that would permit an employer to retrieve and view personal files on an electronic device recovered from a dismissed employee. Fur- ther, it is likely the individual has not consented to the collection of such personal information and it would therefore be in contraven- tion of PIPEDA. A dismissed employee has the right to inquire about and gain ac- cess to the personal information the organization has in its posses- sion within 30 days. If a person discovers his former employer collected personal information from the electronic devices, the employee could make a complaint to the Privacy Commissioner. Under PIPEDA, employers must develop policies and pro- cedures that protect the rights established by the act. A best practice is to include language in a privacy policy specifying em- ployer-owned electronic devices are not to be used for personal purposes, and employees should have no expectation of privacy with regard to the information stored on such devices. When an employee is dismissed or resigns, ask if she has personal information on the devices she is returning. If she does, arrange- ments should be made to delete it and, if requested, provide a copy. Colin Gibson is a partner at Har- ris and Company in Vancouver. He can be reached at (604) 891-2212 or cgibson@harrisco.com. Colin Gibson Toughest HR Question When an employee is dismissed or resigns, ask if there is personal information on her devices. When diversity programs falter There are three opposing sets of values competing to guide our initiatives Has your diversity program failed? Rather than improving the quality of talent or increasing engagement, are there hints it's doing the opposite? e Harvard Business Review sug- gested as much in its July-August 2016 article "Why Diversity Pro- grams Fail." In business, most programs that aren't working are simply cancelled; however, this case is different. Diversity is pursued as a value, not as a business ini- tiative. So how do we repair our programs? Since diversity is about values, we need to confront the fact there are three opposing sets of values competing to guide our diversity programs. e three stances The three stances are Conser- vative, Progressive and Social Justice. It's easiest to understand them by looking at how they man- ifest in some everyday affairs: Dealing with a noisy, smelly engine: Conservative: If it's not broken don't fix it. If you mess with it, you'll probably make it worse. Progressive: We can tweak it to make it better. Let's do it. Social Justice: As long as it's an internal combustion engine, it's going to be noisy and smelly. We need to break it up and use the parts to create something much better. Dealing with a schoolyard fight: Conservative: Let'em go at it; they've got to figure it out on their own. Progressive: Break it up and we'll get them to talk out their differences. Social Justice: Seek justice by punishing the aggressor, and rec- ognize that if the one who started the fight is from a marginalized group, it may be that she was goaded into it. In a diversity program: Conservative: e world's often not fair, and attempts to change it usually backfire. We used to feel like a team of individuals. Now, after the diversity training, we are all walking on egg shells. Progressive: ere have been setbacks but also successes. We must continue to find ways to empower people, and educate everyone to embrace differences. Let's try harder. Social Justice: Society is so riv- en with bias and hidden privilege that the marginalized have no real chance. at's why the programs the Progressives designed aren't working. We don't need tolerance training; we need to give margin- alized groups the power to fight back against the system. Hidden conflicts e hidden conflict in diversity is between the Progressive and So- cial Justice stances. People who support social justice will feel be- trayed by Progressives who stop short of the actions needed to level the hierarchy. Progressives will be dismayed by Social Justice advocates who focus on punishing offenders. Progressives also misunder- stand Social Justice attempts to improve the status of marginal- ized groups. Social Justice advo- cates are not so foolish as to be- lieve employees in marginalized groups are hypersensitive. The point of "trigger warning," "safe spaces" and "being offended" is to balance the power of manag- ers. e goal is for managers to be as worried about the arbitrary power of employees since em- ployees are of the arbitrary power of managers. If Progressives try to draw clear, pragmatic lines around, for exam- ple, what is and is not considered offensive, then that undermines the effectiveness from a Social Justice viewpoint. If the lines are clear, then managers can easily handle them and need not fear that their employees will com- plain. To even the power balance, the rules must be vague enough so employees can arbitrarily bring charges if ever a manager, in their opinion, is out of line. e Progressive and Social Jus- tice stances start out looking the same relative to the Conservative stance, but soon devolve into seri- ous conflict because the goals of equality of opportunity (Progres- sive) and equality of outcome (So- cial Justice) lead towards dramati- cally different policy initiatives. e first step e first step to getting your diver- sity program on track is to get the leadership team to confront these three stances and how they are at war within the program. Each stance has it merits. e Conser- vatives are right that the diversity program may make things worse for everyone. e Progressives are right that we need to reduce bias. e Social Justice advocates are right that society has deep struc- tural unfairness. HR should meet with stake- holders to review the diversity program in light of the insights delivered by each stance: Conservative: Identify where the diversity programs are doing more harm than good. Stop doing those things. Progressive: Identify where the programs are helping the disad- vantaged, improving tolerance, or increasing productivity. Expand those programs. Social Justice: Identify where systemic unfairness in our soci- ety is so great that we want to act even if there are downsides. Put in place measures to address that unfairness and absorb the costs. is review won't make every- one happy, but it will bring clarity to what the programs are for and why you are doing what you are doing. It doesn't do any good to pretend that we can enforce quo- tas and still hire the best qualified candidates; if we want to take a So- cial Justice stance on hiring, then let's say so and not beat up talent acquisition for not delivering on two incompatible objectives. David Creelman is CEO of Creel- man Research in Toronto. He can be reached at dcreelman@creelman research.com or for more information, visit www.creelmanresearch.com. David Creelman Guest Commentary The hidden conflict is between the Progressive and Social Justice stances.

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