Are you wondering if your boss can spy on your computer? Are you suspicious about your boss or employer spying on you through your computer? More specifically, can your boss spy on your computer and is that even legal? With so many people working from home these days, sheltering in place in the face of a global pandemic, a lot of folks may have found themselves with a fancy new company-issued laptop, tablet, or smartphone.
Armed with those tools, they wake up and go straight to work in their newly established home offices, free from the prying and micromanaging eyes of their old managers whom they used to have to see every day in the office after a lengthy commute.
But those prying eyes, unbeknownst to a lot of workers, may have come home with them on their new company-issued equipment. Sure, the company may have their home-based workers clock in using a software program to track their hours, but they could be tracking employees in a host of other and more clandestine ways. Workers may find themselves in uncomfortable confrontations with human resources managers for things they did while nobody was watching, or so they thought.
Canadian companies spying on employees
It’s hard to imagine a time before smartphones and computers nowadays since their use and adoption have become so ubiquitously widespread. Living without them seems nearly impossible to imagine. They keep us connected to friends, family, and coworkers virtually all day, every day, and that’s especially true in the professional world where we’re now tethered to the office 24/7 through our electronic devices.
Privacy rights in the digital age are undoubtedly under assault, but your rights as a private individual versus those as an employee may differ depending upon where you live and where you work. Generally, the law recognizes when people have a reasonable expectation of privacy, however, that expectation may not extend to the workplace. Whether it’s a transportation company monitoring their fleet for lead-footed drivers on their payroll, or a software company tracking employee search queries on Google and other websites, the rights of an employer to surveil employees through company-issued equipment are not widely known or understood.
Federal and Provincial Privacy Protection Laws
In Canada, the Personal Information and Electronic Documents Act governs how organizations can collect and use personal data. In general, the act prohibits the collection and dissemination of personal information without consent, but there are exceptions and limitations inherent in the legislation. Provincial privacy laws also limit how governments and employers can use peoples’ personal data, and the Charter of Rights and Freedoms also prohibits unreasonable search and seizure, a privacy-adjacent issue that only comes into play when government actors are involved.
Canadian companies are subject to both federal and provincial privacy laws, though they’re given considerable leeway when it comes to monitoring employees for various reasons. They can monitor employees for time-theft, for example. Bosses can use tools to surveil company property with video and audio recording devices to prevent theft or vandalism. Businesses can record employees’ access to sensitive information to protect trade secrets and intellectual property.
Can your boss spy on you through your computer?
When surveillance of employees becomes problematic is when blanket data collection practices are done without the consent or knowledge of workers. Unionized workplaces enjoy greater employee privacy protections through collective bargaining agreements, but individual employment contracts for non-union workers may not address the issue of employee data collection and monitoring policies.
Just this year, for instance, the Ontario government announced plans for a new law that would require employers to notify workers of monitoring practices. The new law would mandate employers with 25 or more employees to have written monitoring policies for both in-office workers and those who work remotely. The province’s Minister of Labour, Monte McNaughton, told the Toronto Star that the new rules were in response to considerable overreach by some employers, some of whom were tracking employees during lunch breaks and even bathroom breaks.
Canadian Case Law on Employee Privacy Rights
Though it didn’t involve surveilling employees through a company-issued computer, one of the most influential and oft-cited cases on the subject involved an employee of the Canadian Pacific Railway named Erwin Eastmond. In the late winter of 2001, the railway company installed half a dozen cameras at one of its railyards in Toronto. The company claimed there had been theft and vandalism issues at the facility, but the six cameras at issue were not trained on the yard overall but pointed at the entrances and exits.
Within a few weeks, Eastmond complained to Ontario’s privacy commissioner about the cameras, claiming they were installed in secret without telling the union. He also claimed there were no problems with the site’s security to necessitate what he called “an invasion of privacy.” Moreover, he claimed the cameras were installed not for security purposes but rather to monitor workers and productivity, negatively affecting employee morale.
Can I spy on my employees?
In turn, Ontario’s privacy commissioner agreed and wanted CP Rail to remove the cameras, finding the reasoning behind their installation was inappropriately intrusive and unjustified under the Personal Information and Electronic Documents Act. But the Federal Court of Canada disagreed, finding the loss of privacy associated with the cameras was “minimal.”
The judge found that the railway company had plenty of reasons to install the cameras, including past cases of theft and vandalism and trespassing the cameras were intended to deter. The company had found success with cameras at other locations, the court found and were useful in after-the-fact investigations. The cameras were not monitored in real-time by a railway employee, and the images recorded were wiped within a few days in the absence of a so-called “triggering event.”
The judge concluded that the privacy loss from the cameras was “proportional” to the benefit of collecting recorded images. In addition, despite the federal law dealing with consent to personal information collection, the act has an exemption for seeking consent where “inappropriate.” In this case, the judge found it would’ve been inappropriate to seek the consent of a would-be thief to surveil them and catch them in the act.
Boss Spying on Your Computer Conclusion
Privacy laws in Canada are quite strict and spell out how organizations and companies use and collect personal information. They attempt to strike a balance between the privacy rights of individuals and the right to protect property, as exemplified in the case of CP Rail all those years ago.
So, to answer the question: can your boss spy on your computer? The short answer is yes, indeed they can. But employers and governments alike are subject to a host of legal limits on how they collect and use people’s personal information. But while privacy protections exist, digital technology makes violating privacy easier and easier by the day and some companies may not even know they’re breaking the law with a software program that records keystrokes, or an ill-placed surveillance camera.
For individuals though, privacy in the digital age may seem like an illusion. With that in mind, it’s perhaps good to know the New York Times Rule: don’t do or say anything you wouldn’t want to be reported on the front page of the Times. In the context of employee privacy concerns, the Times rule can be slightly modified: don’t do or say anything at work that you wouldn’t want to be reported to HR.