Scenario: A manufacturing company holds an executive “retreat” in Whistler, B.C. After a day spent hiking, the group of employees gathers around a fire to listen to a team-building consultant hired by the employer. The consultant proposes a “trust building” exercise: she asks everyone to put their smartphones in a box after disabling their passwords. Did this employer do anything unlawful?
If it happens in the context of a famous sports coach and his players, these questions can get lost quickly. Mike Babcock was the coach of the NHL Columbus Blue Jackets. Former players alleged that he had asked to see their smartphones including all their texts, photos, and other information, as part of the process of getting to know them better as players. When this became public, the questions the situation raised went away fast; the team and Babcock quickly parted ways while investigations were still ongoing by the player union and the league.
But if we remove the context of a famous sports coach and his former players, an important legal issue arises from the consultant’s demand at our hypothetical company retreat: when is it legal for an employer to demand personal information from existing employees?
Everyone has personal information privacy rights, and smartphones clearly contain our personal information, so a demand by anyone – police officer, employer, schoolteacher – is per se a demand to collect personal information. Privacy statutes in Canada, including the federal Personal Information Protection and Electronic Documents Act (PIPEDA), all require the consent of an individual before collecting their personal information, and allow only narrow exceptions where it can be done without consent. Further, the consent must be free, voluntary, and informed in order to be valid.
In this context, employers can reasonably ask for personal information that deals with a legitimate matter of the employer’s interest. The most appropriate occasions to request personal information or pose these questions as an employer is during the recruitment, hiring, and onboarding stages. If the employee declines to give consent, they will not progress in the hiring process. For incumbent employees, however, collecting personal information can be more challenging. This is because even if an employee complies and consents to sharing their smartphone or other personal information, that consent could later be challenged as invalid on the grounds that the employee felt they had no real choice. The prospect of losing their job is a far greater fear than that faced by the job applicant, whose only loss is the opportunity to be a candidate for the job.
If the employee refuses to give consent, the question then is whether that act of insubordination is “just cause” for dismissal. This would require the employer, in turn, to demonstrate that their request for the employee to provide a potentially extensive amount of personal data was lawful, justified, and reasonable from the outset. Determining whether this request was “reasonable” would involve questions such as: What was the business goal behind requiring the information and how was the collection essential to that goal? Is the collection tailored to only cover the collection of information necessary for the goal? Is there a standing workplace policy in effect for personal information collection, and are the terms of that policy reasonable?
If the employee’s contract requires them to give consent, then the employer has a stronger case to say that the demand is perfectly reasonable because it is simply part of the contract. For example, certain contracts may outline the obligation for employees to provide specific medical details to their employer on designated occasions, such as if they are going on disability leave, or may require employees to consent to providing personal samples or related information in specific situations, such as drug and/or alcohol testing.
In consideration of these factors, what does the law say about the Babcock allegations, if they were to have happened in a typical workplace? Free from any surrounding contract or policy on the issue, we consider that it would likely not be a reasonable demand for the collection of personal information. “Trust building” is too vague to be reasonable or to be able to assess whether it is met by a particular measure. If a particular employee was on a “final warning” – had been warned that certain actions would result in their termination – perhaps there might be a legitimate employer interest behind the request. But to simply demand it as a badge of trust would be too vague to be a reasonable employer request. Further, asking for the entire contents of the phone would also be unreasonable for reasons of overbreadth and excessive collection.
As such, if an employee refused, and they were dismissed, it is not likely (under Canadian law) that the employer would be able to establish just cause, because they could not prove that the order refused was a reasonable one.
Based on this, employers would be wise to be selective about when they ask for employee personal information. Only if there is a legitimate employer interest such as investigating a complaint or allegation of wrongdoing would such a demand be seen as reasonable and lawful. Simply asking for an entire device full of information would very likely also be considered an overbroad request and thus an unreasonable request, regardless of the original purpose.
About the Author
This article was written by Tom Archibald, one of the seasoned employment lawyers at HRC Law Professional Corporation. Tom comes with 15+ years of legal expertise in employment and labour law and a passion for helping Canadian employers navigate through complex legal landscapes. Tom’s extensive knowledge covers a wide range of employment issues, including precarious legal situations.