Worker Video Surveillance Is Last Resort: Canada Privacy Office

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By Peter Menyasz

Employers in Canada may need to rethink any use of worker video surveillance given a recent ruling by the British Columbia privacy office that decried its use by a chicken processor investigating animal abuse claims, privacy attorneys told Bloomberg Law

The B.C. Office of the Information and Privacy Commissioner recommended that the unnamed company stop making workers that catch chickens wear video cameras, destroy all existing surveillance records, and develop and implement a formal privacy policy. The company violated the province’s Personal Information Protection Act (PIPA) because it unreasonably collected worker data and non-employee data, including personal information, without consent.

The ruling confirms that privacy agencies in Canada generally frown on the use of workplace video surveillance, and that it shouldn’t be used as a first line of defense in addressing employee problems, the lawyers said.

The case is also important because it demonstrates that the privacy agency will address high-profile cases even if no formal complaint is filed, Eleni Kassaris, privacy and employment partner at Blake, Cassels & Garydon LLP in Vancouver, told Bloomberg Law. That should ensure that its enforcement report has an even greater impact on deterring other employers from improperly using video surveillance, she said.

“The message for employers is to react reasonably to a business problem,” Kassaris said. “You can’t skip over the steps involved with compliance with privacy laws.”

Last Resort

Video surveillance should only be used as a last resort, not a substitute for effective employee recruitment and training, Drew McArthur, the province’s acting information and privacy commissioner, told Bloomberg Law. The actions of the workers in this case were “egregious,” but the employer could have taken other steps, such as reminding workers of their obligations, or sending a manager to check on their behavior, before resorting to body-mounted video surveillance cameras, he said.

Employers can use video surveillance when investigating employee conduct but should only collect a small amount of information to confirm or refute charges against workers, McArthur said.

The company involved in this case ended its video surveillance of employees at the agency’s recommendation, McArthur said.

Policies, Procedures

Companies need to have workplace policies and procedures in place to prevent wrongful employee conduct before surveillance is used, Tamara Hunter, privacy and litigation associate counsel at DLA Piper in Vancouver, told Bloomberg Law. Companies need to take less intrusive steps first, she said.

There are situations where targeted surveillance of employees could be appropriate, such as ongoing security or theft issues where less intrusive solutions haven’t worked, Hunter said. It may even be justified under British Columbia’s privacy law if the sole purpose is managing the employment relationship, she said.

The privacy agency also released Nov. 8 a guidance document on using workplace video surveillance.

To contact the reporter on this story: Peter Menyasz in Ottawa at correspondents@bna.comTo contact the editor responsible for this story: Donald Aplin at daplin@bna.com

For More Information

The investigation report is available at http://src.bna.com/ubl. The guidance document is available at http://src.bna.com/ubn.

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