Privacy concerns have become a focal point for labour and employment firms
When employees are assigned work-issued cellphones, they’re carrying data-extraction devices that mines their use of lucrative and, at times, sensitive personal information. Many workplaces are replacing key-cards and punch-in clocks with eye and fingerprint scanners and some — such as Amazon — are even surveilling their workforce with Fitbit-like wrist-bands, monitoring their production and counting their bathroom breaks.
The advancement of digital technology, the threat of hacks and unauthorized disclosure and the centrality of data in the economy are giving rise to new privacy questions for workers, unions and workplaces in Canada. The forecast for Ottawa also indicates near-future changes to privacy laws to enhance the protection of Canadians’ personal information. With the COVID-19 causing a major shift in how individuals are monitored and restricted, these issues have only become more pressing.
Responding to a consistent flow of privacy-related inquiries, union-side labour law firm Koskie Minsky LLP recently launched a privacy practice.
The growing sophistication of the workplaces tools has increasingly produced legal questions from clients of Koskie Minsky lawyer Philip Graham.
“I found, over the years, I've been getting more and more inquiries from clients and more complex inquiries around privacy concerns,” says Graham, who practises employment law, privacy and compliance and commercial litigation.
“When we start thinking a little bit about how work is being done . . . how people are conducting their business, there's the movement of information across borders and boundaries — and in the digital age, it's so much easier to do,” says Graham. “It's easier to collect. It's easier to use. And the question is: How are we collecting it? How are we using it? And how are we storing it? What are our responsibilities in all those things?”
For example, Graham works with clients, based in Ontario, who have personal information stored in the cloud in another country. This raises the question of how that private information interacts with Canadian law, laws in foreign jurisdictions and the obligations by which organizations are bound, he says.
“As technology continues to advance, these are technologies we’re going to see more and more in workplaces in Canada,” says Koskie Minsky labour lawyer Lauren Tarasuk.
She says a significant concern from her union clients is employers’ increasing ability to spy on their employees. Workplace surveillance has grown through the years — from cameras in the workplace to more intrusive data collection. Tarasu adds that unions are “uniquely positioned” to challenge these workplace policies because of the strength of their collective action ability.
Also relevant to unions is that privacy law in Canada is “poised to change,” she says.
In the Office of the Privacy Commissioner of Canada’s annual report, released Dec. 2019, Privacy Commissioner Daniel Therrien urged lawmakers to “adopt rights-based privacy laws” to modernize Canada’s privacy regime. In May 2019, the federal government announced it had created a Digital Charter, which called for extensive changes to the country’s privacy and data security laws and for swelling the enforcement powers of the Office of the Privacy Commissioner. The legal updates likely on the way are welcome, as Graham and Tarasuk say there are some gaps in the current laws.
“The biggest thing that we see is that there is no real, specific legislation to regulate the protection of employees’ privacy rights,” says Graham. “While we can look to PIPEDA or the Privacy Act and glean some level of accountability or what we should be doing, in Ontario, at least, there is no targeted legislation in terms of what do we do with employee data when we collect it.”
Short of legislative frameworks, “mounting” privacy concerns are left to employer policies, says Graham.
“We're seeing the court in the steps to increase the scope of privacy protections. We're hearing from the government that they're going to be taking those steps as well. None of us are strangers to the fact that privacy is a hot topic around the world,” he says.
Federal Privacy laws in Canada:
The Privacy Act
Concerns a person’s right to access the personal information the federal government has on them, and correct that information if necessary. Also concerns the feds’ collection, use and disclosure of personal information while the government provides services such as old age pensions, employment insurance, border security, policing and tax collection.
The Personal Information Protection and Electronic Documents Act
Concerns how private sector organizations collect, use and disclose personal information during commercial activities, as well as how banks, airlines and telecommunications companies handle that information.