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Video surveillance and biometrics in the workplace |
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| Balancing security with privacy and religious interests |
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Written by Malcolm MacKillop and Hendrik Nieuwland
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We all know that ensuring the safety and security of the workplace is
essential for all employers. The difficulty for employers comes in
finding ways to achieve this objective in an efficient and
cost-effective manner. Many different forms of security measures are
available. Hired security guards are highly visible deterrents to
unauthorized access and theft, but can be prohibitively expensive.
Pass-card systems are readily available, but can be manipulated or
breached by wrong-doers with the technical know-how.
 In recent years, many employers have turned to more advanced technologies to satisfy safety and security needs. While video surveillance has been available for many years, the more recent introduction of digital technology has made video surveillance cheaper and more secure, and therefore more accessible to many employers. Digital video surveillance can have a significant deterrent effect, and most importantly, it can record and store massive amounts of video footage that can be later relied upon to investigate a security or safety-related workplace incident.
Some employers have also introduced biometric scanning technologies to limit and track access to the workplace. Biometric scanners digitally scan unique physical characteristics (examples include a person’s iris, fingerprint, or hand geometry) and therefore can limit access to the workplace to only those authorized persons whose unique physical characteristics are stored in the company’s computer system.
 Employers do not, however, have an unfettered right to use video surveillance and biometric scanning as they see fit. The use of these technologies involves the collection and storage of employees’ personal information, which raises issues of both employee privacy and, perhaps surprisingly, religious interests. The passage of the federal Personal Information Protection and Electronic Documents Act in 2004 places limits on employers’ collection and use of employee information. Furthermore, both the courts and labour arbitrators have recognized that employees have workplace privacy and religious interests that compete with and therefore must be balanced against the employer’s use of mechanisms to control and supervise the workplace.
There is no easy formula for determining what steps an employer must take to balance employee privacy and religious interests with greater workplace safety through the use of these technologies. Each situation will turn on the particular circumstances, and therefore employers should seek professional legal advice. However, the following general principles have been considered by courts and labour arbitrators and therefore offer a useful starting point for employers thinking of introducing video surveillance or biometric technologies in the workplace:
1. Provide employees with notice – Covertly using surveillance technologies without notice to employees is generally deemed to be unreasonable except in cases of illegal activity (e.g., employee fraud). Providing advance notice, particularly in the unionized workplace, helps allay employee fears associated with surveillance and biometric systems, and can promote meaningful and informed discussions between management and employees regarding how the new system can be implemented to minimize the impact on employee privacy or religious interests.
2. Prove there is a legitimate objective – Employers should be prepared to provide proof that the surveillance technology is being used to further a legitimate objective. That means if the stated objective is to deter theft or ensure only authorized access to the workplace, there should be proof that theft is actually a problem or that there is a serious risk of harm if unauthorized persons gain access to the workplace.
3. Restrict the scope of surveillance – The use of direct and constant surveillance of employees in the workplace has been characterized as “workplace spying” and is generally considered unreasonable. The proper balance between privacy and security is often struck by limiting video surveillance to fixed positions that promote the employer’s objective (e.g., placing video surveillance or biometric scanners only at entrance and exit points to ensure authorized access to the workplace, or placing video surveillance only in storage facilities to deter theft).
4. Limit the use of surveillance records – Systematically reviewing surveillance recordings to try to “find” problems is usually frowned upon. Generally speaking, employers should only review surveillance recordings when investigating particular workplace incidents.
5. Limit retention and access – Since both video surveillance and biometric data often contain sensitive information on individual employees, such data should be kept secured at all times and access should be limited to only a few members of management. The retention of video recordings should be limited in time to allow for the investigating of recent incidents, and should thereafter be destroyed. Biometric data should not be retained after termination of employment.
6. Accommodate religious beliefs – Employers should explore alternatives to biometric scanning systems for those employees who object to their usage on religious grounds. In a recent high profile labour dispute, several employees were terminated for refusing to enrol in a biometric hand identification system introduced by the employer to enhance security in the workplace. The labour arbitrator found that the terminated employees sincerely believed that if they submitted to biometric scanning they would be tainted with the “mark of the beast,” risking their damnation. The employer’s failure to accommodate such beliefs was held to violate human rights legislation. In such circumstances, employers should explore alternatives to accommodate these religious beliefs, such as a pass-card access system used in conjunction with the biometric system.
Malcolm MacKillop and Hendrik Nieuwland practise employment law with the firm Shields O’Donnell MacKillop LLP of Toronto. Visit them at www.djmlaw.ca.
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