Canadian Employment Law Today

with Tim Mitchell Ask an Expert NortoN rose Fulbright Calgary Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Canadian HR Reporter, a Thomson Reuters business 2014 2 | August 20, 2014 Recording meetings with employees QuestioN: Can an employer record (audio or video) performance evaluation or disciplinary meetings with individual employees? What are the legal obligations of keeping such recordings for a period of time? Answer: It is well-established that an em- ployee does not give up rights to individual privacy when she becomes a party to an em- ployment relationship. Even before the enactment of federal and provincial privacy legislation, case law had recognized that an employer's management rights in relation to the safe and efficient operation of its business had to be balanced against the rights of its employees to be free from unreasonable invasions of their per- sonal privacy. Various legislative schemes have been ad- opted in recent years to give statutory sanc- tion to such rights (provincial statutes deal- ing with provincial personal information protection and those addressing freedom of information and protection; the federal Per- sonal Information Protection and Electron- ics Document Act (PIPEDA)). Although differing in their specific provisions, they typically focus on the concept of reasonable- ness in defining the scope of an employer's conduct in relation to its employees. e federal act, for instance, states the purpose of the personal information protec- tion provisions in s. 3 as being "to establish, in an era in which technology increasingly facilitates the circulation and exchange of information, rules to govern the collection, use and disclosure of personal information in a manner that recognizes the right of privacy of individuals with respect to their personal information and the need of orga- nizations to collect, use or disclose personal information for purposes that a reasonable person would consider appropriate in the circumstances." Where employer conduct involves the re- cording of employees in a workplace setting, the question of whether the employer's con- duct is reasonable will depend on the spe- cific facts. In the arbitral context, instances of surreptitious recording have typically been met with disapproval, particularly in more recent cases. Overt but nonconsen- sual recording is sometimes treated more favourably but may still be found to breach employees' privacy rights, depending on the circumstances in which it occurs. In either case, an employer might be called upon to justify its intrusion on the employee's privacy. In a number of arbitra- tion cases, employers have been found un- able to justify their actions in undertaking the nonconsensual recording of their em- ployees in various contexts and have been ordered to cease the practices or have been prevented from submitting the recordings in evidence to support disciplinary action. Privacy legislation may authorize the col- lection of personal employee information without consent in some circumstances. For example, s. 15(1) of the Alberta Personal Information Protection Act allows noncon- sensual collection of a current employee's personal employee information where it is collected for the sole purposes of managing or terminating an employment relationship; it is reasonable to collect the information for that purpose; and the employer has provid- ed the individual with reasonable notifica- tion that the information is going to be col- lected and why it is being collected before collecting it. Notably, this provision also incorporates the concept of reasonableness. Employees engaged in discussions of performance or disciplinary issues may not have the same reasonable expectations of privacy as em- ployees going about their work or engaged in off-duty activities. However, both perfor- mance evaluations and disciplinary inter- views typically involve matters of a highly personal nature where respect for an em- ployee's dignity would be an issue that could be raised to question the reasonableness of surreptitious or nonconsensual recording. Privacy legislation may also recognize that there are circumstances where con- sent is not possible or practical. PIPEDA, for example, allows collection of personal information without knowledge or consent where "it is reasonable to expect that the collection with the knowledge or consent of the individual would compromise the availability or the accuracy of the informa- tion and the collection is reasonable for pur- poses related to investigating a breach of an agreement." But it is difficult to imagine circumstanc- es where video or audio recording employee interviews would fall within this exception. e only way an employer could feel as- sured that its collection of an employee's personal information would not offend the employee's statutory right to information privacy would be to reveal its intention to record the employer/employee interaction, to reveal the purpose for the recording and how it will be used, to actually record the interaction only if the employee consents (in writing) and to comply with all of the safeguards, access, retention and disposal processes required under the application personal information protection legislation. Any contractual obligations relating to the conduct of evaluations or disciplinary interviews would obviously have to be met as well. In the unionized context, it is cer- reCorDiNg on page 6 » CRedit: doCkStoCkmedia/ShutteRStoCk.Com

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