Labour and Employment Law Blog

On November 8, the Office of the Information and Privacy Commissioner for British Columbia (“OIPC”) issued an investigation report regarding the use of employee video surveillance in the workplace (the “Investigation Report”).  The Investigation Report provides important insight for employers with respect to the intersection of privacy rights and video surveillance in the workplace.

The OIPC conducted an investigation in response to a “chicken catching” company requiring its employees to wear camera/video-recording devices as they worked. The company instituted the requirement in response to widespread media coverage of the company’s employees engaging in animal abuse.  The company stopped requiring its employees to wear the cameras as soon as the OIPC started its investigation.

The OIPC made a number of findings regarding the company’s use of the cameras that are relevant to employers in British Columbia:

The information collected via the video surveillance was “personal information” and not “employee personal information.”  This is an important distinction because organizations can collect, use and disclose “employee personal information without employee consent but personal information can only be collected if (i) the individual consents and (ii) a reasonable person would consider the collection to be appropriate.  To constitute “employee personal information” the personal information must be used solely to establish, manage or terminate an employment relationship between an organization and its employee.  In this case because the information was being used, in part, to restore the company’s reputation it was found not to be employee personal information.

• The OIPC made the following findings on consent and reasonableness:
• Consent.  Agreeing to wear the cameras was not explicit or implicit consent.  This is because employees were not given the option of refusing to wear the cameras and were not told all of the company’s purposes for collecting and using the personal information recorded by the cameras.
• Reasonableness.  The OIPC set out five factors to access the reasonableness of the company’s video surveillance: (1) the sensitivity of the personal information; (2) the amount of personal information collected or used; (3) the use of personal information; (4) whether less intrusive alternatives were attempted to achieve the desired result; and (5) the likelihood of effectiveness in achieving its purposes.

In concluding that the camera usage was not reasonable, the OIPC held that:  (i) less privacy intrusive options were not considered; (ii) employees were constantly being monitored; (iii) employees were not notified of all uses of the personal information being collected; and (iv) the video surveillance was unlikely to be effective because it was of such poor quality that it would difficult to determine what particular individuals were doing.

• In addition, the OIPC held that the company was not in compliance with PIPA because it did not have a privacy policy in place nor did it conduct a privacy impact assessment before implementing the video surveillance.

The Investigation Report concluded with the OIPC stating that PIPA only authorizes video surveillance where:

• There is a real and serious threat to personal safety or the security of property;
• The organization has tried all reasonable alternatives without success; and
• There is a reasonable prospect that the video surveillance will address those threats.

This is a high test to meet and will make it difficult for employers to justify video surveillance.  Accordingly, prior to implementing video surveillance or other potentially privacy invasive technology in the workplace we recommend that organizations carefully consider the privacy implications and conduct a privacy impact assessment.