Although it is a brief and easily explained topic, the issues of privacy rights in the workplace and the used of video and audio surveillance is important.
I will focus on Canadian law, but much of what is discussed also applies to other common law jurisdictions. The United States is a much more complicated and convoluted area for both privacy and the use of recorded audio conversations.
Currently, 38 states allow the recording of a conversation if one of the parties agrees to it, while 12 states do not, requiring all parties to consent. Some states have different rules for in-person conversations than for telephone or internet (electronic) conversations.
All provinces in Canada fall under the Criminal Code of Canada, which deals with recording of conversations. If one party to a conversation implies or directly agrees to the recording, you can record conversations. That’s the criminal part. It is not illegal to record.
Similarly, where someone does not have an expectation of privacy, video may be recorded, with limits. In an office or retail outlet, generally employees and customers do not have an expectation of privacy. A Sobey’s case in Alberta established that, while the company had a moral responsibility, it could use cameras in the lunchroom over the objections of the staff. However, in private rooms and bathrooms, people expect privacy, and no one can record there.
Using cameras in an office setting would be okay if they are intended to protect the company property. That would include the bookkeeping function and cash handling, as well as tangible goods. So an employee at a company desk and computer may be watched by camera. However, if that employee is allowed to use the computer for personal use, the employer may inadvertently gather private information on the employee, which may not be legal.
Cameras in stockrooms are legitimately used to protect assets, but monitoring the individual lockers of the employees, even in an open area, may not.
As well, camera systems should not be recording random conversations.
According to the Criminal Code, Section 184 prohibits the interception of private communications, and cameras with audio activated would be illegal in most instances.
Yet, many businesses routinely record conversations on the telephone with clients, and others record interactions at customer service areas. They do so legally, since one party (the business owner) agrees to the recording. But there are precautions that those businesses take.
Use of cameras can be restricted, too. If the camera is installed in an area accessed by the public, such as an apartment hallway, by the owner or his agent, the use of the camera is legal, but if it looks into a private apartment, it is not.
Here, privacy laws come into play.
In Manitoba, the employee’s right to privacy should be considered and failure to protect their private information may be a violation of the Privacy Act of Manitoba. Employers may be liable for damages if such data is accessed or privacy violated, even if it is not a criminal offence.
Similar rules exist in other jurisdictions, with more stringent rules in Ontario and Alberta.
So where does that leave you, the employer or business owner in regard to legal rights and obligations?
In short, nothing prevents you from using all legal and reasonable means to protect your property. Clearly, there is little or no need to record conversations randomly. However, customer service interactions are part of the business and many of those conversations between employee and customer are legitimately targeted.
Video cameras abound, but they are installed with specific purpose. Hidden cameras, though, are more of a touchy subject and should only be used to target specific suspected incidents, such as abuse, theft, fraud and vandalism.
The most effective way to deal with whether you have the right to use video cameras is to post clear signage at the entrance to your business that declares that video cameras may be in use. Combine that with a clear letter, signed by each employee, if possible, that describes your business policy on the use of cameras in the workplace.
That does not mean you have to tell them where the cameras are located or who you may be watching, but you will be taking away their “reasonable expectation of privacy” if you make them fully aware that you may use cameras.
On the detecttheft.com website, you will find a sample letter for your use for your employees.
In short, though, you can use cameras in your business to target theft, fraud, vandalism, abuse, and a host of other valid reasons, without violating the law or bending the Privacy Act. They not only are legal and legitimate, they are invaluable tools to protect your assets.