everything you need to know about workplace privacy

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Everything you need to know about workplace privacy Dan Michaluk January 27, 2010

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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.

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Page 1: Everything You Need To Know About Workplace Privacy

Everything you need to know about workplace privacy

Dan MichalukJanuary 27, 2010

Page 2: Everything You Need To Know About Workplace Privacy

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

Page 3: Everything You Need To Know About Workplace Privacy

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

Page 4: Everything You Need To Know About Workplace Privacy

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

Page 5: Everything You Need To Know About Workplace Privacy

Everything You Need to Know About Workplace Privacy

How to run an internet background check

An information collection model for efficient and compliant

recruiting

Page 6: Everything You Need To Know About Workplace Privacy

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

Page 7: Everything You Need To Know About Workplace Privacy

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

Page 8: Everything You Need To Know About Workplace 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

Page 9: Everything You Need To Know About Workplace Privacy

Everything You Need to Know About Workplace Privacy

Why your acceptable use policy needs to change

WILL THE LAW CATCH UP?

Page 10: Everything You Need To Know About Workplace Privacy

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

Page 11: Everything You Need To Know About Workplace Privacy

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)

Page 12: Everything You Need To Know About Workplace Privacy

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

Page 13: Everything You Need To Know About Workplace Privacy

Everything You Need to Know About Workplace Privacy

How to manage the risk of disease

Employer

Employee HCP

Medical Advisor

Page 14: Everything You Need To Know About Workplace Privacy

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

Page 15: Everything You Need To Know About Workplace Privacy

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

Page 16: Everything You Need To Know About Workplace Privacy

Everything You Need to Know About Workplace Privacy

Dan Michaluk

Hicks Morley Hamilton Stwart Storie LLP

(416) 864-7253

[email protected]

or

Twitter

LinkedIn

Page 17: Everything You Need To Know About Workplace Privacy

Everything you need to know about workplace privacy

Dan MichalukJanuary 27, 2010