BC Arbitrator Endorses Unified Test for Assessing Legitimacy of Access to Internet Log File

On May 12th, Arbitrator Nicholas Glass held that a British Columbia public body did not breach the Freedom of Information and Protection of Privacy Act by accessing an internet log file in the course of a time theft investigation.

The outcome is not surprising. The employer had grounds (an anonymous complaint), the grievor had previously been disciplined for misconduct that raised questions about his dishonesty, the employer had a good acceptable use policy that the grievor had recently acknowledged and log files contain relatively non-sensitive information. Theses facts left arbitrator Glass with a very different concern that dealt with by the British Columbia OIPC in 2007 when it held that the University of British Columbia breached FIPPA in installing spyware in course of a time theft investigation.

The decision is more notable for Arbitrator Glass’s suggestion that the statutory “necessity” requirement (common to most public sector privacy statutes) should be unified in principle with the reasonableness requirement applied by labour arbitrators. In doing so, he endorses the following statement by former British Columbia Commissioner Loukidelis in the Mission School District Case:

At the same time, I am not prepared to accept, as the Complainants contend, that in all cases personal information should be found to be “necessary” only where it would be impossible to operate a program or carry on an activity without the personal information. There may be cases where personal information is “necessary” even where it is not indispensable in this sense. The assessment of whether personal information is “necessary” will be conducted in a searching and rigorous way. In assessing whether personal information is “necessary”, one considers the sensitivity of the personal information, the particular purpose for the collection and the amount of personal information collected, assessed in light of the purpose for collection. In addition to FIPPA’s privacy protection objective is also relevant in assessing necessity noting that this statutory objective is consistent with the internationally recognized principle of limited collection.

In applying this pragmatic approach, Arbitrator Glass rejects the notion that the employer should have simply confronted the grievor. He states, “The point is that in order to manage the employment relationship the employer in these circumstances was entitled to thorough, accurate and objective information about the frequency and extent of [the grievor’s] non-work-related internet use.”

Fraser Health Authority v. H.S.A.B.C., 2011 CarswellBC 1174 (Glass).

Arbitrator Deals With Privacy as Between a Union and its Members

On May 6th, Arbitrator Michel Picher dismissed a grievance in which a union claimed a right of access to a witness statement given by a member who had declined union representation in being interviewed.

The decision turns on the specific language of the collective agreement at issue, though each party made principled arguments – the union claiming a broad right of access based on its representational role and the employer arguing that the proposed disclosure of personal information was prohibited by PIPEDA.

Arbitrator Picher gave some credence to the employer’s argument by suggesting that consent to disclose personal information must be judged in the circumstances. He also rejected the union’s argument, stating that a union’s role as certified bargaining agent does not give it an “inherent right” to information about members that is generated in the course of their employment.

Canadian Pacific Railway Company v. International Brotherhood of Electrical Workers, 2011 CanLII 24835 (ON L.A.)

Arbitrator Agrees to Hear Surveillance Evidence Notwithstanding Policy-Based Preclusion of Employee Monitoring

Arbitrator Robert Herman issued a notable surveillance decision on April 5th. He held that a school board policy that that stated, “Video surveillance shall not be used for monitoring staff performance” did not preclude the hearing of video surveillance evidence in a discharge arbitration.

The Information and Privacy Commissioner/Ontario has a guideline entitled “Guidelines for Using Video Surveillance Cameras in Schools” that Ontario school boards know well. The guideline states, “Video surveillance should not be used for monitoring staff performance.” Many school boards have adopted this statement in their policies without qualification, leaving a question about the use of surveillance footage as evidence of misconduct.

Arbitrator Herman dealt with this issue, and dismissed a union objection that rested on a board’s adoption of the IPC language. He said:

As to the impact of the Information and Privacy Commissioner’s Guidelines, there does not appear to be any authority for the proposition that school boards are required by law to follow the Guidelines. As noted above, at page 1 the Guidelines state that “These Guidelines were created to assist school boards intending to use or expand existing video surveillance to introduce these programs in a manner that ensures stringent privacy controls. The IPC recommends that all school boards using video surveillance implement formal policies governing their use.” These are “guidelines”, recommendations for policies to be adopted by school boards. And as “guidelines”, absent statutory or regulatory requirement that they be applied and followed by the Board, the Guidelines are not binding upon the Board. Further, as the Guidelines do not refer to sections 51 and 52 of the Act, it is not easy to discern from them what the Commissioner’s position is or would be on the use of videotape evidence in an arbitration, the matter in issue here.

The issue then is whether the Board Policy precludes the use of videotapes in this proceeding. The Policy states that “Video surveillance shall not be used for monitoring staff performance.” The videotapes were not surreptitiously made, and the grievor and other employees were aware that the areas in which they worked were being filmed. The word “monitoring” suggests a viewing, checking or surveillance over a period of time, so that “monitoring” staff performance involves viewing employees’ performance over a period of time to determine how they are performing. Monitoring would occur, for example, if the Board were to regularly or periodically review the videotapes as a method of checking the work performance of employees. The Policy does not permit this use of the videotapes. However, the Board did not review the videotapes of the grievor at work as part of a general review of the videotapes to see how any other caretakers or the grievor were performing their work.

Rather, the Board reviewed the videotapes for a particular period of time after it had received a complaint about the grievor’s performance related to that period and then investigated that complaint. Before it reviewed any videotapes, the Board uncovered evidence of non-performance, and after interviewing her and inspecting her log books and other written records, it believed that the grievor was not being truthful about her behaviour and performance, both reasonable conclusions for the Board to have reached based upon the evidence it had by then discovered. Only at that point did the Board review videotapes of the grievor at work, and it did so for days within the period subject of allegations by the other caretakers. The videotape of February 3, 2010 was first reviewed, and then other dates to determine if the grievor had been lying about cleaning her assigned rooms. Those videotapes were not reviewed as part of a pre-existing monitoring process, but as a search for evidence with respect to particular allegations against the grievor, allegations the grievor denied and that the Board on reasonable grounds believed to be true. In these circumstances, the review of the videotapes did not constitute part of a “monitoring” of staff performance, and seeking to introduce then into evidence does not constitute or sanction a breach of the Policy.

This illustrates an important point, especially given a number of decision-makers have suggested that policy-based restrictions on employment-related “secondary uses” of information are a prerequisite to implementing systems that rely on the collection of personal information. Restrictions on “routine” use for performance management purposes will often be acceptable to employers, but restricting access to evidence of wrongdoing is problematic. It is best that policy language go beyond the IPC language and make this distinction clear.

Toronto Catholic District School Boards v. Canadian Union of Public Employees, Local 1280 (Colella), [2011] O.L.A.A. NO. 180 (Herman) (QL).

Internal Investigations and Employee Privacy

I presented today at the Association of Certified Forensic Examiners annual fraud conference. My topic was managing privacy issues in internal investigations. My aim was to provide some content to help investigators build a better dialog with internal legal counsel and privacy officers about investigation tactics that touch on privacy issues. This was the first time I’ve done this presentation, and it seemed to go well.

I also tagged on a brief section on “the investigation record” out of interest. As part of this section I surveyed the audience and was interested to see that about half of attendees conduct witness interviews with an audio recording device, something I have recently guided clients away from because of its potential impact on witness candor. One audience member, a former police officer, said that witnesses forget about the recording device after about two minutes. Interesting and notable.

My slides are below.

Sunset Clause Doesn’t Demand Physical Removal of Disciplinary Notes From File

On December 3, 2010, Arbitrator Goodfellow held that the following collective agreement language does not require the physical removal of expired disciplinary documentation from an employee personnel file:


8.01 – Access to Personnel File

Each employee shall have reasonable access to his/her personnel file for the purpose of reviewing any evaluations or formal disciplinary notations contained therein, in the presence of the Director of Labour Relations & Human Resources or designate. An employee has the right to request copies of any evaluations in this file.

8.02 – Cleaning of Record

Any letter of reprimand, suspension or any other sanction will be removed from the record of an employee eighteen (18) months following the receipt of such letter, suspension or other sanction provided that such employee’s record has been discipline free for one year. All leaves of absence in excess of ten (10) calendar days will not count toward either of the above periods.

Arbitrator Goodfellow appears to rely most strongly on the apparent distinction drawn in the above language between a “record” and a “personnel file.” More broadly, he says, “any such physical ‘removal’ would be secondary to the primary purpose of any sunset clause, which, in our view, is to preclude Employer reliance on stale discipline, except in the kind of limited circumstance(s) to which the Union refers [e.g., to rebut an affirmative statement made by an employee about having a clean record] .”

Carillion Services v. Canadian Union of Public Employees, Local 942, 2011 CanLII 10605 (ON L.A.).

Social Media and the Hiring Process

I spoke today at The Canadian Institute’s “Managing Business and Legal Risks in Social Media” conference in Toronto. I’ve talked about this topic before, but I have advanced my thinking lately.

For one, I’ve developed some new thoughts on the subject of notification and consent to conduct “internet background checks” on potential candidates. I’ve gone from suggesting that, as a matter of policy, employers have no reason to forgo seeking consent to believing that, in some circumstances, manipulation of published information may be too great a concern to allow for notification and consent. The right answer, from a policy perspective, depends on an employer’s precise objectives.

Of course, those employers who are regulated by privacy legislation must seek consent to collect personal information from the internet for candidate screening purposes unless they can rely on a “publicly available information” exception. These exceptions are worded fairly broadly. PIPEDA, for example, carves out the following from its consent requirement:

“personal information that appears in a publication, including a magazine, book or newspaper, in printed or electronic form, that is available to the public, where the individual has provided the information”

Though some might argue that everything posted online does not “appear in a publication,” I’d rather argue the opposite. The other relevant limitation evident from the language above is on seeking information “provided” by persons other than the subject of the check. The Alberta and British Columbia statutes have similar carve outs from their consent rule. An interesting and relevant topic. Do you have a view? Please comment.

The other question I addressed today was, “How should the formal employment contract (as opposed to policy) be used to protect against employment-related social media risks?” The answer I gave today is “not much,” though I’m an employment contract minimalist. I do like the idea of “surfacing” and expressly dealing with potential conflicts that are foreseeable based on a candidate’s established online profile and established media properties, but otherwise think employers should deal with social media issues through policies that are ancillary to formal contractual documentation but incorporated by reference.

Slides with complete thoughts on the legal requirements for conducting internet background checks and more below!

Social Media Use by Teachers and Students: OCT Recommends Limits

The Ontario College of Teachers has recently issued a professional advisory recommending strict limits on interactions between teachers and students through social media.  The advisory emphasizes that teachers are professionals, who are held to high standards of conduct, in both their professional and private lives.  Since inappropriate electronic communications with students – including those outside of school hours and unrelated to school matters – can lead to teacher discipline, and even criminal charges, the OCT recommends that teachers take certain precautions in their electronic communications, particularly through social media.  Among other guidelines, the advisory recommends that teachers:

  • not be “friends” with students on Facebook, refrain from “following” students on Twitter, and otherwise avoid personal connections with students on social media;
  • notify parents before using social media for classroom purposes; and
  • use appropriate privacy settings when using social media, to ensure that students may not access personal or inappropriate postings.

The recommendations are not surprising, given the high standards of conduct expected of teachers, and the perils teachers may face from inappropriate use of electronic media – as illustrated by the recent Ontario Court of Appeal decision in R. v. Cole.

Although specific to the educational context, the OCT’s professional advisory reflects the importance of addressing the impact which social media, and electronic media in general, can have in various settings.  Employers should consider whether the dynamics of their workplace justify guidelines or policies on the appropriate use by employees of social media, for example, in their interactions with each other or with customers, suppliers or other parties.

A link to the OCT’s professional advisory is here, and a related CBC article is here.

Arbitrator Picher Okays Collection of Personal Communication Device Records

Arbitrator Michel Picher issued a notable decision last June that recently came to my attention. He held that Canadian Pacific Railway could establish a policy of investigating serious accidents or incidents by asking employees to produce personal communication device records (with the content of messages and information about the identity of parties to communications redacted).

The company did a good job of establishing the serious risk of distraction posed by the use of personal communication devices and the need for the policy, which Mr. Picher upheld on an application of the Office of the Privacy Commissioner of Canada’s four-part reasonableness test. He summarized his views as follows:

As the cases cited above amply reflect, arbitrators are properly sensitive to the encroachment of employers into the personal and private lives of employees, particularly as relates to non-work related activity. The reasoning in those cases, however, has little or no bearing on the instant dispute. This grievance is about whether the employer can make reasonable inquiries to establish or rule out the use of a personal cell phone or other electronic communication device by an employee while he or she is on duty. To the extent that that inquiry relates only to a serious accident or incident and does not touch on the content of personal communications, it is difficult to see on what responsible basis it could be concluded that there can be no legitimate employer interest to justify the inquiry.

Mr. Picher did stipulate that the company limit its request to the period of time pertinent to its examination.

Canadian Pacific Railway Company and Teamsters Canada Rail Conference, unreported (23 June 2010, M.G. Picher).

Ontario Arbitrator Says Employers Entitled to More Than a Bare Medical Certification

On January 27th, Ontario labour arbitrator George Sudykowski issued an award about the scope of information employers may generally require in a medical certificate. He held that employers need not accept a bare statement from a doctor confirming an employee’s illness:

I agree with the thrust of the British Columbia jurisprudence that it is not inordinately invasive for an employer to ask that a medical certificate include the reason for incapacity, which would appropriately consist of a general statement of the nature of the disabling illness or injury, without diagnosis or symptoms. It is not unreasonable for an employer to require an employee to provide the reason for her absence or claim for STD benefits, and the mere fact that providing that reason (i.e. the nature of her illness or injury) may suggest a diagnosis does not excuse the employee from providing the reason in order to satisfy the onus on her to justify her absence and claim for benefits even in the first instance.

He also said:

I also respectfully disagree with Arbitrator (as he then was) Whitaker’s conclusion in Re Hydro Agri Canada, supra (at page 108), that an employer is generally not entitled to require that a medical certificate include the date(s) of the relevant visit(s) to the medical health professional who provides the certificate. Not only is this at best remote confidential medical information, the date of visit(s) will both tend to confirm that the medical health professional actually saw the employee for the purpose of the certificate, and will reveal the timeliness of the visit relative to the absence in issue, which is a relevant consideration.

Arbitrator Surdykowski rejected a seemingly impassioned presentation by the Union in which it argued the importance of medical privacy, the reliability of physician statements and the weak distinction between information about “nature of the illness” and information about “diagnosis.” Mr. Sudykowski said the Union’s case rested on “selective optimism.” He also acknowledged that the disclosure of information about the nature of the illness may indicate a diagnosis, but suggested that the routine disclosure of “nature of the illness” information for the purpose of medical certification is nonetheless reasonable and appropriate.

Providence Care, Mental Health Services v. Ontario Public Service Employees Union, Local 431, 2011 CanLII 6863 (ON L.A.).

Speeding Up Criminal Reference Checks

The federal government is implementing new digital technology to speed up the process for obtaining criminal reference checks.  This change will be welcome relief to employers who are required to perform criminal reference checks on employees or prospective employees, such as school boards and social services agencies.  A link to a CTV article on the announcement is here.