Canadian Lawyer

May 2020

The most widely read magazine for Canadian lawyers

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34 www.canadianlawyermag.com PEOPLE FIRM INSIGHT Protecting workers' privacy When employees are assigned work-issued cellphones, they're carrying data-extraction devices that mines their use of lucrative and, at times, sensitive personal information. Many workplaces are replacing key-cards and punch-in clocks with eye and fingerprint scan- ners and some — such as Amazon — are even surveilling their workforce with Fitbit-like wrist-bands, monitoring their production and counting their bathroom breaks. The advancement of digital technology, the threat of hacks and unauthorized disclosure and the centrality of data in the economy are giving rise to new privacy questions for work- ers, unions and workplaces in Canada. The forecast for Ottawa also indicates near-future changes to privacy laws to enhance the pro- tection of Canadians' personal information. With the COVID-19 causing a major shift in how individuals are monitored and restricted, these issues have only become more pressing. Responding to a consistent flow of priva- cy-related inquiries, union-side labour law firm Koskie Minsky LLP recently launched a privacy practice. The growing sophistication of the work- places tools has increasingly produced legal questions from clients of Koskie Minsky law- yer Philip Graham. "I found, over the years, I've been getting more and more inquiries from clients and The growing sophistication of technology in workplaces has made privacy concerns a focal point for labour and employment firms like Koskie Minsky more complex inquiries around privacy con- cerns," says Graham, who practises employ- ment law, privacy and compliance and com- mercial litigation. "When we start thinking a little bit about how work is being done . . . how people are conducting their business, there's the move- ment of information across borders and boundaries — and in the digital age, it's so much easier to do," says Graham. "It's easier to collect. It's easier to use. And the question is: How are we collecting it? How are we using it? And how are we storing it? What are our responsibilities in all those things?" For example, Graham works with clients, based in Ontario, who have personal infor- mation stored in the cloud in another country. This raises the question of how that private information interacts with Canadian law, laws in foreign jurisdictions and the obligations by which organizations are bound, he says. "As technology continues to advance, these are technologies we're going to see more and more in workplaces in Canada," says Koskie Minsky labour lawyer Lauren Tarasuk. She says a significant concern from her union clients is employers' increasing ability to spy on their employees. Workplace surveil- lance has grown through the years — from cameras in the workplace to more intrusive data collection. Tarasu adds that unions are "uniquely positioned" to challenge these workplace policies because of the strength of their collective action ability. Also relevant to unions is that privacy law in Canada is "poised to change," she says. FEDERAL PRIVACY LAWS IN CANADA The Privacy Act Concerns a person's right to access the personal information the federal government has on them and correct that information if necessary. Also concerns the feds' collection, use and disclosure of personal information while the government provides services such as old age pensions, employment insurance, border security, policing and tax collection. The Personal Information Protection and Electronic Documents Act Concerns how private sector organizations collect, use and disclose personal information during commercial activities, as well as how banks, airlines and telecommunications companies handle that information.

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