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This is the third of a three-part series describing new developments in workplace video surveillance and privacy rights. The first instalment addressed an important decision of the Federal Court,[1] which held that video cameras installed by CP Rail in one of its work yards did not violate the privacy rights of its employees protected by the Personal Information and Electronic Documents Act. The second instalment examined recent comments by the Quebec Commission d'accès à l'information regarding specific guidelines for the use of video surveillance in public places. In this third instalment, we describe the draft Employment Privacy Guidelines distributed by British Columbia's Information and Privacy Commissioner, as well as concerns about this draft that have been expressed by employers in BritishColumbia.

Draft guidelines of British Columbia's Information and Privacy Commissioner

In June 2004, the Office of the Information and Privacy Commissioner distributed draft Employment Privacy Guidelines (the "Draft Guidelines") for comment. The stated purpose of the Draft Guidelines, once finalized, is to provide guidance to employers and individuals about the application of British Columbia's Personal Information Protection Act ("PIPA") in an employment context.

The Draft Guidelines provide detailed interpretation and comments about how PIPA impacts upon the following workplace issues:

1. Pre-employment Collection of Information;
2. Electronic Monitoring with Notification;
3. Electronic Monitoring without Notification or Consent; and
4. Drug and Alcohol Testing

Response of the Business Council of British Columbia

In the fall of 2004, we worked with the Business Council of British Columbia (the "BCBC") to prepare a submission in response to the Draft Guidelines. BCBC is an association representing 200 large and medium-sized enterprises that have operations in British Columbia. Collectively, the corporate members and the associations affiliated with the BCBC are responsible for one quarter of all jobs in British Columbia.

In its submission, the BCBC expressed general concern that the Draft Guidelines:

• appeared to establish rules rather than policy or procedure;
• appeared to have the effect of rewriting the legislation. There were many cases where the Draft Guidelines purported to modify the statutory requirements of PIPA;
• were inappropriately based, in part, on human rights jurisprudence that the Commissioner's Office did not have the expertise or jurisdiction to interpret or apply. In addition, the human rights principles as stated were incorrect;
• did not follow well-known privacy principles that have been established by privacy commissioners and arbitrators in balancing the privacy interests of employees and the management rights of employers; and
• did not properly apply the "reasonable person" test.

The BCBC then articulated its specific concerns in relation to each of the four workplace issues detailed in the Draft Guidelines. Some examples of specific guidelines and BCBC's concerns are briefly described below.

Pre-employment Collection of Information

Examples

• Only references provided by the applicant should be contacted.
• Questions relating to prohibited grounds of discrimination should usually not be asked.
• Pre-employment medical testing is usually unreasonable.

Concerns

• This guideline overstated or misinterpreted the applicable legal principles and requirements of PIPA.
• This guideline was based on jurisprudence developed under human rights legislation. However, in many respects, it did not accurately reflect the principles set out in human rights jurisprudence. In some cases, it inappropriately applied human rights principles to questions arising under PIPA.

Electronic Monitoring with Notification

Examples

• Employers cannot monitor without "substantial and compelling" concerns.
• Video cameras should be rotating and computer monitoring should gather as little information as possible.
• Employees must be told the type of monitoring system employed and the locations at which monitoring systems are operated.

Concerns

• This guideline overstated and oversimplified the applicable legal principles.
• This guideline appeared to provide rigid rules to be complied with, rather than guidance to employers about their rights and obligations.
• The illustrative examples used in this guideline were misleading.
• This guideline did not appropriately distinguish between situations where employees had reasonable expectations of privacy and those where they did not.
• This guideline described numerous requirements that are not contained in PIPA.

Electronic Monitoring without Notification or Consent

Examples

• Covert monitoring can only occur if there has been a breach of an employment agreement and specific allegations are being investigated.
• Employers must have a "substantial and compelling concern" to justify covert monitoring.
• Monitoring should only gather the minimum necessary information.

Concerns

• This guideline required employers to justify covert electronic monitoring by providing evidence that is not required by PIPA or other applicable legal principles.
• This guideline failed to put the issue into context, and appeared to entrench an overly restrictive and rigid view of the law.
• This guideline restricted and reduced employers' rights to covertly monitor employee misconduct in a way that was not supported by PIPA or applicable legal principles.

Drug and Alcohol Testing

Examples

• Pre-employment drug or alcohol testing is not reasonable.
• Random drug testing of employees is not reasonable.
• Employees who test positive for drugs or alcohol must be re-tested to rule out false positives.

Concerns

• This guideline went well beyond interpreting and providing guidance in relation to the requirements of PIPA. Rather, it purported to codify judicial, human rights, and arbitral principles that, for the most part, evolved independently of PIPA. Those matters are beyond the Commissioner's expertise and jurisdiction.
• This guideline did not accurately reflect the unsettled and dynamic nature of the law regarding workplace drug and alcohol testing. Instead, it oversimplified the legal principles and made them appear to be well-settled and static.
• This guideline contained numerous misleading and/or incorrect statements of the law.

Conclusion

In conclusion, the BCBC submitted that the Draft Guidelines needed to be re-drafted to address its concerns, and offered its assistance in that task.

Commentary

To date, the BCBC has received no formal response to its submission. However, we understand that the Commissioner has reviewed all submissions and has noted that the submissions he received from unions and privacy groups unanimously approved of the Draft Guidelines, whereas the submissions he received from employers were unanimously critical. We understand that the Commissioner is currently reviewing his options. He may undertake a complete re-write of the Draft Guidelines, form a focus group to prepare new draft guidelines, or abandon the project entirely.

It should be noted that if employment privacy guidelines are ever promulgated, they will not have the force of law unless the legislation is amended and, to the extent that they deviate from statutory and other legal principles, the requirements they set out will not be enforceable.

Copies of the Draft Guidelines or the BCBC submission are available on request.

The purpose of this document is to provide information as to developments in the law. It does not contain a full analysis of the law nor does it constitute an opinion of Ogilvy Renault or any member of the Firm on the points of law discussed.

[1]. Eastmond v. Canadian Pacific Railway, 2004 FC 852

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