everything you need to know about workplace privacy
DESCRIPTION
This is an employee privacy "hot topics" presentation to human resources professionals. It includes sections on sources of employee privacy rights, screening candidate's internet presence in the recruiting process, access to employee communications, cross-border information processing and pandemic planning.TRANSCRIPT
Everything you need to know about workplace privacy
Dan MichalukJanuary 27, 2010
Everything You Need to Know About Workplace Privacy
Outline
• Employee privacy rights - the patchwork quilt• How to run an internet background check• Why and how your acceptable use policy needs
to change• Yes, you can transfer that data to the U.S., but…• How to manage the risk of communicable
diseases in the workplace• Questions
Everything You Need to Know About Workplace Privacy
Employee privacy rights and the patchwork quilt
• Statutory codes
• Federal
• Alberta, B.C. and Quebec
• Other statutes
• The law of the unionized workplace
• Civil claims for breach of contract and tort
Everything You Need to Know About Workplace Privacy
Employee privacy rights and the patchwork quilt
• Ontario non-unionized employees have no readily available means to assert a privacy right…
• …but• Risk of constructive dismissal claims (Colwell)
• Risk of tort claims (Somwar)
• Risk of human rights liability (e.g. drug testing)
• Employee relations
• So be careful
Everything You Need to Know About Workplace Privacy
How to run an internet background check
An information collection model for efficient and compliant
recruiting
Everything You Need to Know About Workplace Privacy
How to run an internet background check
• Do it at the end, not the beginning
• Question what’s relevant
• Set objective criteria
• Create a business record of the check
Everything You Need to Know About Workplace Privacy
Why your acceptable use policy needs to change
• Then
• No personal use
• No mobile devices
• No social media (blurring of personal and
professional)
• Therefore…
• …no reasonable expectation of privacy
Everything You Need to Know About Workplace Privacy
Why your acceptable use policy needs to change
• Now
• Limited personal use
• Employer-issued mobile devices
• Social media means you’re always on
• Therefore…
• … individual privacy expectations are rising
Everything You Need to Know About Workplace Privacy
Why your acceptable use policy needs to change
WILL THE LAW CATCH UP?
Everything You Need to Know About Workplace Privacy
How your acceptable use policy needs to change
• Relying on policy not based in reality is risky
• Consider a balanced approach
• Reserve the right to..
• …audit (with controls)
• …investigate (with controls)
• …extract and produce (e-discovery)
• Tell them data stored on cloud services counts
Everything You Need to Know About Workplace Privacy
Yes you can transfer data to the U.S. but…
• Recognized rules
• Data security must be equivalent
• You should be aware of risks that flow from socio-
political conditions (but not likely a barrier)
• Notice should ordinarily be given (but whether it
must be given depends on your jurisdiction)
Everything You Need to Know About Workplace Privacy
Yes you can transfer data to the U.S. but…
• What to do
• Employ due diligence
• Enter contract to control the information
• Enter a contract to guarantee security
• Give notice subject to legal advice that notice is not
required
Everything You Need to Know About Workplace Privacy
How to manage the risk of disease
Employer
Employee HCP
Medical Advisor
Everything You Need to Know About Workplace Privacy
How to manage the risk of disease
• Screening
• Be transparent about policy
• Only above an objective threshold
• Use a process based on medical science
• Use a occupational health professional if you can
• Keep records (of due diligence) secure
Everything You Need to Know About Workplace Privacy
How to manage the risk of disease
• Warnings
• Be transparent about policy
• Only above an objective threshold
• Routine disclosure highly questionable
• Disclosure based on a real need to allow people to
mitigate risk
• Notification of disclosure back to individual
Everything You Need to Know About Workplace Privacy
Dan Michaluk
Hicks Morley Hamilton Stwart Storie LLP
(416) 864-7253
or
Everything you need to know about workplace privacy
Dan MichalukJanuary 27, 2010