Canadian Employment Law Today

STUART McKELVEY HALIFAX Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com 2 | October 26, 2016 with Brian Johnston Ask an Expert Canadian HR Reporter, a Thomson Reuters business 2016 Video surveillance in individual offices and workstations Question: Can an employer place video surveillance cameras in employee offices and workstations or only in common areas? Compensation for travelling to alternate work location Question: If an employee is required to go to another location that is farther away than his regular place of work, does the employer have to pay for all or part of the extra travel time to get there? Answer: is question is best answered by recognizing the distinction between com- muting time and travel time. Commuting time versus travel time ere is a significant distinction between commuting time and travel time in the em- ployment context. Travel time is work time that is compensable while commuting time is not work time and therefore not compen- sable. Under the Ontario Employment Stan- dards Act, 2000, for example, commuting time is the time it takes for an employee to get to and from a regular place of work and is not counted as work time for the purposes of the act. However, if the employee has a regular place of work but is required to travel to dif- ferent locations to perform work for the em- ployer or for the employer's benefit, the time spent travelling to and from the alternate lo- cation is travel time and is compensable. is distinction was recently upheld in Allison v 3359492 Canada Inc. In a unionized environment, all aspects of an employee's compensation, entitlement to and calculation of overtime pay is usually established in the applicable collective agree- ment. Whether or not an employer is re- quired to compensate an employee for extra commuting time to a location outside of her regular place of work depends on the specific language in the collective agreement. e general rule is that an employee is not "at work" when she travels to her normal worksite. However, arbitral jurisprudence has held that when an employee is required to report to an off-site location, the employer Answer: It depends on the circumstances. e use of video surveillance by employers in the workplace has been a contentious is- sue for decades. Installation of surveillance cameras is contextual and will be determined based on a balancing of the employer's right to manage its operations with an employee's legitimate interests (such as a right to pri- vacy). However, it has been consistently held in unionized situations (absent permissive collective agreement language) that the use of video surveillance for the purposes of observing employees as they perform their daily tasks without a compelling safety or security interest will be an unreasonable interference with an employee's reasonable expectation of privacy. Video surveillance in a unionized environment As a general proposition, there is no free- standing prohibition against an employer implementing overt video surveillance in common areas. However, the use of video surveillance in more private spaces such as an office or workspace is more problematic, even when the video surveillance is overt. Arbitrators have consistently agreed that "constant scrutiny of a person's every move would be a working condition of which most employees would be quite sensitive." is form of video surveillance has been said to potentially lead to high levels of psychological stress and fear that such surveillance would be relied on by managers in performance evaluations or for disciplinary reasons. e installation and use of covert video surveillance is especially contentious but continues to serve a useful purpose when used appropriately by employers. It has been recognized in the arbitral jurisprudence that covert surveillance has the potential of being privacy invasive and must only be used in a time-limited, case-specific circumstance. e burden is generally on the employer to establish that the video surveillance was implemented to achieve a legitimate goal of enhancing safety, protecting property or identifying intruders. Arbitrators will apply a three part test when assessing whether an employer's use of video surveillance was appropriate: • Whether surveillance was reasonable, in all of the circumstances, to request surveil- lance. • Whether the surveillance itself was con- ducted in a reasonable manner. • Were other, less intrusive, alternatives open to the employer to obtain the evi- dence sought? In assessing reasonableness, an arbitra- tor will consider factors such as why the video surveillance was put in place, how long it was put in place for, and who had the authority to view or monitor the surveil- lance. Video surveillance should only be implemented as a last resort and its benefits must outweigh the impact on employees' privacy interests. e arbitral jurisprudence regarding video surveillance has developed with the growth in technology and the increased acknowledgement of employee's privacy interests. An arbitrator will always assess whether the use of video surveillance was a reasonable exercise of management rights in the circumstances of each case. Video surveillance in a non-unionized environment Video surveillance in non-unionized set- tings has not been extensively considered. Non-unionized employees have had little opportunity to challenge an employer's de- cision to engage in workplace monitoring or surveillance. Nevertheless, an employee's right to privacy in the workplace is being increasingly recognized following the 2012 decision of the Ontario Court of Appeal in Jones v Tsige. British Columbia, Manitoba, Newfoundland, Saskatchewan and Quebec have all enacted privacy legislation which provide for a right to sue for an invasion of privacy, which includes provisions to pre- vent or limit surveillance of individuals with- out their consent. Whether unionized or not, employers should establish a workplace policy which explicitly states that an employee's right to privacy may be limited or superseded in certain circumstances. e policy should be clear and unambiguous, well publicized in the workplace, reasonable in scope and should comply with any applicable privacy legislation. To summarize, an employer may in cer- tain circumstances install video surveillance in an employee's office if it was a last resort, time-sensitive decision aimed at investigat- ing a sufficiently serious safety or security concern which was permitted by the col- lective agreement or workplace video sur- veillance policy. However, specific tracking of individual employees will always be ob- jectionable and the onus will be on the em- ployer to demonstrate it was reasonable in the circumstances. INCONVENIENCE on page 7 »

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