Is Your Boss Allowed To Read Your Personal Emails Stored On Your Work Computer?
The follow up question, is whether your boss is allowed to fire you if she or he finds evidence of wrongdoing in those personal emails.
The short answer, to both questions is "it depends." Specifically, it depends on whether the employee had a reasonable expectation of privacy in the personal correspondence. A recent case, Saskatchewan Government and General Employees Union v Unifor Local 481, 2015 CanLII 28482 (SK LA), illustrates the situation.
The employee, was employed as a Labour Relations officer whose work included representation of employees in correctional services. Among his duties he was required to attend various prisons in the province. The employer had received information that the employee was involved in a bar fight and had been, at the time, wearing the colours of a biker group. When questioned, the employee admitted that the fight had occurred but denied wearing the group's colours. He also admitted that he had been involved with a biker group two years previous but had ended that involvement.
A subsequent tip informed the employer that there was a police investigation into the employees activities. The employer instructed its IT department to gain access to the employee's computer which allowed the employer to view all personal emails that had been sent or received on the employers network. In the "Deleted" folder were thousands of emails between the employee and his spouse. The employer did not read most of them but rather viewed any attached pictures which included ample evidence of the employee in biker garb.
The employee was dismissed and the union grieved the dismissal. The union objected to the admissibility of the photos on the grounds that the employee had a reasonable expectation of privacy regarding his communications with his wife. The employer argued that its policy clearly advised that employees "should not expect communications or use of the network system to be confidential or private." The policy went on to say that the "employer retains the right to access and review the content of files stored, copied or sent through the office network system." The policy also stated that "personal incidental use of the network office is not explicitly denied or explicitly approved." Rather personal use was not to "interfere with the employee's work or the work of others."
The arbitrator refused to admit the email evidence following the reasoning of the Supreme Court of Canada in R v Cole, a case in which a employer school had discovered a picture of a naked student on a teacher's school issued laptop and had turned the evidence over to the police. In that case the court reasoned that the teacher did have a limited expectation of privacy which had been breached by the warrantless search. (Notwithstanding this, the court allowed the images to be admitted). The Supreme Court reasoned:
Canadians may reasonably expect privacy in the information contained on their own personal computers. This expectation of privacy also applies to information on work computers, at least where personal use is permitted or reasonably expected.
While workplace policies and practices may diminish an individual’s expectation of privacy in a work computer, these sorts of operational realities do not in themselves remove the expectation entirely…
[Cole] expected a measure of privacy in his personal information on the laptop. Even taking into account the relevant workplace policies, this expectation of privacy was reasonable in the circumstances.
The lawful authority of his employer — a school board — to seize and search the laptop did not furnish the police with the same power.
Whether Mr. Cole had a reasonable expectation of privacy depends on the “totality of the circumstances”. The “totality of the circumstances” test is one of substance, not of form. Four lines of inquiry guide the application of the test: (1) an examination of the subject matter of the alleged search; (2) a determination as to whether the claimant had a direct interest in the subject matter; (3) an inquiry into whether the claimant had a subjective expectation of privacy in the subject matter; and (4) an assessment as to whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances.
Computers that are used for personal purposes, regardless of where they are found or to whom they belong, “contain the details of our financial, medical, and personal situations”.
While the ownership of property is a relevant consideration, it is not determinative.
Written policies are not determinative of a person’s reasonable expectation of privacy.
The arbitrator went on to rule that the employee had a reasonable expectation of privacy despite the written policy of the employer. This expectation was heightened by the fact that the communications were between himself and his wife, a most intimate relationship. Additionally the employee had deleted the communications which demonstrated that he did not want them viewed by others. The fact that personal use was allowed suggested some privacy rights even though the employer's policy stated that the employee should not expect information stored on the network to be private.
In other words, an employee may have an expectation of privacy even if the information is stored on the employer's network, and there is a written policy confirming that all stored information belongs to the employer and that the employee should not expect the information to be private.
The Lesson For Employers: This decision strongly suggests that written policies must clearly state that any personal use of employer equipment and network is forbidden and is subject to random review. Additionally, wording advising that any information found on the employer's equipment or network is not private is necessary.
The Lesson for Employees: Although this decision is employee friendly, wisdom suggests: if you don't want your boss to know something, don't put the information on his or her system, network or equipment. Use your own device to protect your privacy.
Saskatchewan Government and General Employees Union v Unifor Local 481, 2015 CanLII 28482 (SK LA) https://www.canlii.org/en/sk/skla/doc/2015/2015canlii28482/2015canlii28482.pdf
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