&
The Toronto Star
Monday, May 4, 1998

When monitoring employees is legal

Intrusive searches can be justified, courts have found

by Howard Levitt, hlevitt@toronto.langmichener.ca

Can employees be searched or secretly monitored?

Keith Richardson was employed by Davis Wire Industries Ltd. for more than 14 years. After receiving complaints that Richardson was sleeping in the lunchroom during the night shift, his employer installed a video camera.

During the first week, Richardson was caught sleeping four times. On the fifth night, an hour and a half after his shift started, he was again seen sleeping on the videotape monitor.

His supervisor confronted him. Richardson apologized, explaining that he was not feeling well and that he had come in to rest just before his coffee break.

When interrogated further, Richardson claimed that he had done so only two or three times in the last six months, all as a result of illness. Since the videotape showed him asleep four times in the previous week alone, the company knew he was lying.

Richardson was dismissed and he sued for wrongful dismissal. He claimed that the videotaping was a violation of his right to privacy and that the judge should not consider that evidence.

The judge thought otherwise. He said in a 1997 decision that "there was no expectation of privacy on the part of Mr. Richardson in the circumstances . . . Mr. Richardson could not reasonably expect to have the protection of privacy when he was sleeping on company time, on company property, and in circumstances where he could be expected to be contacted if needed."

Surveillance is even permitted at an employee's residence if it is not intrusive and does not affect family or friends.

Is there any privacy in the workplace?

Even though a workplace is the employer's property, the courts generally consider some locations within it as sacrosanct. For example, an employer would probably be prohibited from installing video surveillance cameras in locker rooms or bathrooms.

Intrusive searches are more carefully scrutinized. Personal body searches are more invasive than, for example, searches conducted of employee lockers. Therefore, employers would need particularly compelling reasons to perform body searches.

Such reasons might exist if, for example, a diamond manufacturer suffered constant thefts and the employees agreed, as a term of employment, to such searches.

For intrusive searches, an employer must show it first exhausted other alternatives, informed the employee in advance and conducted the search in a systematic and non-arbitrary way.

Courts review the reasons for conducting the search. In the 1970s, Inco Ltd. received bomb threats at some of its mines. After premises nearby were bombed, Inco increased its security. The company searched employees' lunch boxes as one of the safety measures.

Some employees complained that these searches violated their rights. But the arbitrator deciding the case said that even though the searches were a "personal embarrassment", they were justified in the interests of safety.

Finally, an employer must be careful whom it targets in its video surveillance and searches. Investigations cannot be arbitrary.

For example, if products are disappearing from an assembly line, the employer must investigate all employees on the line.

To do otherwise exposes the employer to allegations that certain employees are targeted or being discriminated against, for example, on grounds such as sex or race, in violation of the Human Rights Code.

Random employee searches without justification are never tolerated by our courts.

Employers should adopt policies and procedures concerning privacy issues in the workplace that define when and what type of searches can be conducted. They should also not resort to searches without compelling reasons and until all less intrusive methods have been exhausted. Otherwise, the actions may be construed as a trespass to the employee's property or person.


Copyright © 1998 by The Toronto Star. All Rights Reserved. Reprinted with permission.