Do My Employees Have Privacy Rights When Using A Company-Owned Device?
Though it may come as a surprise to some, the short answer is yes.
The Supreme Court of Canada has previously held that employees do have a reasonable, though reduced, expectation of privacy in the information stored on a company-owned electronic device. Our Supreme Court of British Columbia has confirmed that these privacy rights can apply to both company computers and company cell phones.
FACTORS CONSIDERED BY THE COURT
When an employee’s privacy rights are raised, the Courts will consider the “totality of the circumstances” using the following factors:
an examination of the subject matter of the alleged search;
a determination as to whether the employee had a direct interest in the subject matter;
an inquiry into whether the employee had a subjective expectation of privacy in the subject matter; and
an assessment as to whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances.
A stronger argument for a reasonable expectation of privacy can be made by an employee if the information in question relates to details of that person’s lifestyle or personal choices.
WHY DOES EMPLOYEES’ PERSONAL USE OF COMPANY-OWNED DEVICES MATTER?Employees’ personal use of a company-owned electronic device should be of concern to an employer given the fact that employers can be found vicariously liable for the conduct of their employees.
It is important that employers have policies in place setting out guidelines on employee personal use of company-owned electronic devices and such polices should address ownership of information stored on, or generated by, these devices and disciplinary action that will be taken if an employee breaches the employer’s expectations regarding personal use of company-owned devices.
Implementing and enforcing strong policies can help an employer demonstrate it took steps to prevent employee’s misuse of company-owned devices. If an employer ever discovers that an employee has used a company device to carry-out fraudulent or criminal acts, advice from a lawyer should be sought immediately regarding discloser of such information to the appropriate authorities.
If you have any questions or concerns about remote work and/or are interested in either a remote work policy or provisions to add to your employment agreements, please feel free to contact us. Our team of lawyers would be happy to help you navigate your matter.
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Disclaimer: This article is not intended to serve as, or should be construed as legal advice, and is only to provide general information. No portion or use of this article will establish a lawyer-client relationship with the author or any related party. Should you require legal advice for your particular situation, please get in touch with us.