Canadian HR Reporter

CANADIAN HR REPORTER November 14, 2016 INSIGHT 27 What are the rules for video surveillance? Several factors come into play when individual offi ces, workstations are involved Question: Can an employer place video surveillance cameras in employee of- fi ces and workstations, or only in com- mon areas? Answer: It depends. e use of video surveillance by employers in the workplace has been a conten- tious issue for decades. Installation of surveillance cameras is contex- tual 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 privacy). However, it has been consis- tently held in unionized situa- tions (absent permissive collec- tive 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 un- reasonable interference with an employee's reasonable expecta- tion of privacy. Unionized environment As a general proposition, there is no free-standing prohibition against an employer implement- ing overt video surveillance in common areas. However, the use of video sur- veillance in more private spaces such as an offi ce or workspace is more problematic, even when the 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 sensi- tive." is form of video surveil- lance has been said to potentially lead to high levels of psychological stress and fear that such surveil- lance would be relied on by man- agers in performance evaluations or for disciplinary reasons. e installation and use of co- vert video surveillance is espe- cially contentious but continues to serve a useful purpose when used appropriately by employ- ers. 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-specifi c circumstance. e burden is generally on the employer to establish that the vid- eo surveillance was implemented to achieve a legitimate goal of en- hancing safety, protecting prop- erty or identifying intruders. Arbitrators will apply a three- part test when assessing if use of video surveillance was appropriate: •Whether surveillance was rea- sonable, in all of the circum- stances, to request surveillance. •Whether the surveillance itself was conducted in a reasonable manner. •Were other, less intrusive alter- natives open to the employer to obtain the evidence sought? In assessing reasonableness, an arbitrator 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 surveillance. Video surveillance should only be implemented as a last resort and its benefi ts must outweigh the impact on employees' privacy interests. e arbitral jurisprudence re- garding 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 surveil- lance was a reasonable exercise of management rights in the circum- stances of each case. Non-unionized environment Video surveillance in non-union- ized settings has not been exten- sively considered. Non-unionized employees have had little oppor- tunity to challenge an employer's decision 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 pri- vacy legislation that provide for a right to sue for an invasion of privacy, which includes provi- sions to prevent or limit surveil- lance of individuals without their consent. Whether unionized or not, em- ployers should establish a work- place policy that explicitly states 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 comply with any appli- cable privacy legislation. To summarize, an employer may in certain circumstances in- stall video surveillance in an em- ployee's offi ce if it was a last resort, time-sensitive decision aimed at investigating a suffi ciently serious safety or security concern that was permitted by the collective agree- ment or workplace video surveil- lance policy. However, specifi c tracking of individual employees will always be objectionable and the onus will be on the employer to dem- onstrate it was reasonable in the circumstances. For more information see: • Jones v. Tsige, 2012 CarswellOnt 274 (Ont. C.A.). Brian Johnston, Q.C., is a partner with Stewart McKelvey in Halifax. He can be reached at (902) 420-3374 or bjohnston@stewartmckelvey.com. Brian Johnston TOUGHEST HR QUESTION Specifi c tracking of individual employees will always be objectionable and the onus will be on the employer. UBS whistleblower sounds cautionary note Memoir by former banker Bradley Birkenfeld shows perils facing those who blow the whistle on wrongdoing — and those who listen to them e story of a UBS banker-turned-whistleblower sounds a caution- ary note. Bradley Birkenfeld helped expose tax evasion at the Swiss lender, landing it with a big fi ne and cracking open the country's bank secrecy rules. ough he collected a US$104-million reward, he also ended up in jail. Birkenfeld's book, Lucifer's Bank, opens with an inside look at the debaucheries of elite European banking, and the hall-of-mirrors tactics the very rich use to hide their wealth. Later, he shows how justice can be messy and even un- dermined by the people supposed to carry it out. The account is particularly relevant because authorities are increasingly relying on whistle- blowers to alert them to wrong- doing. The U.S. Securities and Exchange Commission is pursu- ing about 700 cases that started with a tip-off from an insider. e UBS investigation, which ended with the bank paying a US$780- million fi ne, kicked off the U.S. government's broader probe into tax evasion aided by Swiss banks. e juicy, fast-paced tale re- flects Birkenfeld's former life- style as a private banker to the ultra-wealthy. He's no saint and doesn't pretend to be. e native of Massachusetts was introduced to the world of secret Swiss bank accounts at Credit Suisse and later Barclays. When he landed at UBS in Geneva, he found a more so- phisticated approach to wooing overseas clients. He was taught to carry an encrypted laptop and tell U.S. customs agents he was travel- ling for pleasure. Wealthy clients arriving in the Swiss city would get taken on "Mr. Birkenfeld's Magic Carpet Ride," which included dinner at a fi ve- star restaurant followed by a visit to an "upscale cabaret." e next day, he would drive them to the UBS offi ces in a Ferrari where they would head to the safe-deposit boxes two storeys underground. American billionaire Igor Ole- nicoff became his fi rst client. "It was too much fun, and way too profi table," he writes. ough U.S. authorities began scrutinizing offshore accounts after the 9/11 attacks, Birkenfeld didn't turn against his employer until 2005. He learned of a back- dated internal memo that he took as a sign UBS was going to sell him and his colleagues out. He resigned and gathered evidence, which he sent to the bank's general counsel and board members. Unsatisfi ed by the re- sulting internal investigation, Birkenfeld decided to contact the U.S. authorities. But as he was a Swiss resident and subject to lo- cal law, he couldn't reveal clients' names unless he received a U.S. subpoena. Birkenfeld and his lawyers took the case to the U.S. Department of Justice (DOJ) in 2006, but found offi cials less than welcoming. ey accused the banker of looking for a reward, and told him that asking for a subpoena was indicative of his guilt. ough he revealed that UBS held 19,000 secret off shore accounts on behalf of American citizens, the DOJ declined to is- sue a subpoena. Frustrated, Birkenfeld ap- proached the U.S. Senate Perma- nent Subcommittee on Investiga- tions, which sent him a subpoena in 2007. Separately, he worked with the U.S. Internal Revenue Service (IRS) and the Securities and Exchange Commission (SEC). Hearing on UBS in 2009 en-senator Carl Levin eventu- ally held a hearing on UBS in 2009. By then, the DOJ was closing in. In 2008, U.S. authorities detained some of Birkenfeld's bosses. He decided to go to the United States anyway and was arrested at Bos- ton's Logan Airport. Prosecutors said although Birkenfeld had provided useful information, he didn't disclose his role or provide evidence on Olenicoff , who pleaded guilty to fi ling a false tax return and paid a US$52-million fi ne. e real- estate tycoon did not serve prison time — nor did any other UBS executive. Birkenfeld's self-serving ac- count does not spare criticism of others. Aside from UBS, he heaps scorn on the DOJ and prosecutors whom he says botched the case and cared more about protecting politically connected bank clients. " e DOJ had reached out for my treasure trove with one slimy hand, and slapped cuff s on me with the other," he writes. Though Levin wrote a letter of support, Birkenfeld was sen- tenced to 40 months. After he was freed in August 2012, the IRS awarded him US$104 million in recognition of the taxes it had re- covered from UBS clients. Birkenfeld's story is a reminder that while whistleblowers can be a valuable source of inside infor- mation, they are often zealous and can't be easily placated. He's not alone: A few months ago, former Deutsche Bank employee Eric Ben-Artzi embarrassed the SEC by declining to accept an US$8- million award related to alleged violations at the German lender. He wrote in the Financial Times that the SEC hadn't been tough enough. As Wall Street braces for more penalties, Birkenfeld's memoir shows the perils facing those who choose to blow the whistle on wrongdoing — and those who lis- ten to them. e last sentence in his book serves as a warning: "I'm still a hammer, looking for nails." Gina Chon is a Washington, D.C.- based columnist for Reuters. Gina Chon GUEST COMMENTARY Birkenfeld's story is a reminder that while whistleblowers can be a valuable source of insider information, they are often zealous and not easily placated.

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