A decision issued by British Columbia’s Civil Resolution Tribunal (CRT) has attracted significant media attention, largely because of the unusual outcome of an employee having to pay an employer damages for time theft after the employee challenged their dismissal for cause.

It has also raised concerns around the use of employee monitoring software, as the employer relied heavily on information gathered by a time-tracking program, called TimeCamp, that had been installed on the employee’s work laptop.

Private eyes, they’re watching you, they see your every…keystroke and interview?

The TimeCamp program tracked when an employee opened a document or accessed a client file, and recorded how long each document or file was open. Using that information, the employer took the position it could easily differentiate between non-work activity (such as watching TV on a streaming service) and work activity (such as printing client documents or accessing a client file).

In addition, the employer also relied on video recordings: one of its meeting with the employee to discuss the time theft allegations, and a second of its interview with the employee when she was first hired.

Employers should not plan to rely on this decision for several reasons:

1. As a decision of the CRT, it is not binding and will hold little, if any, persuasive weight with other decision-makers, particularly the courts.
2. The decision turns on a less rigorous application of the test for just cause and the rules of evidence than employers will usually contend with.
3. The decision does not deal with significant privacy issues in relation to the use of monitoring software and video surveillance; it is more a roadmap of “do nots” rather than “dos” from a privacy perspective.

Key privacy principles

With respect to the privacy “do nots”, employers should be mindful of the following key privacy principles: 

• In BC, the collection, use and disclosure of employees’ personal information is regulated by the Personal Information Protection Act (PIPA).
• Under PIPA, as a general rule, meaningful consent is required to collect, use or disclose personal information, which requires the individual concerned to know what information is being collected and the purpose for the collection, use or disclosure of that information.
• Employers can collect employee personal information without consent for a purpose reasonably required to establish, manage or terminate the employment relationship. However, even where consent is not required, employees must generally be notified of the collection of their personal information, including of the purposes for which it is being collected.
• Further, organizations collecting, using or disclosing personal information must only do so for purposes that a reasonable person would consider appropriate in the circumstances.
• The reasonableness of surveying or monitoring employees in BC will depend on the sensitivity and amount of information collected, the likelihood of effectiveness, the availability of alternatives, whether any collection is covert, and any offence to the employees' dignity.
• Employers considering the implementation of surveillance and monitoring technologies in the workplace should be prepared to justify the reasonableness of doing so in light of these factors. Employees must also be notified of any monitoring that is implemented, and its purpose.
• The Information and Privacy Commissioner of BC is empowered to issue binding orders against organizations that have breached their obligations under PIPA. Further, an individual affected by such an order has a cause of action against the organization for damages for harm suffered as a result of the breach.

Employers have a right to manage their workplace, but they must do so in compliance with applicable privacy laws. Implementing any sort of employee monitoring software or video surveillance should be done carefully, intentionally and following a full consideration of the privacy impacts.

Interested in learning more? Contact the authors, Eleni Kassaris and Victoria Merritt.