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w w w . c a n a d i a n l a w y e r m a g . c o m J U N E / J U LY 2 0 1 9 45 L E G A L R E P O R T of employees for commentary, where employee misconduct is suspected, and employers could be challenged on the privacy compliance of that practice, says Kennedy. "But employers who are routinely just monitoring what employees do online all the time would certainly [run afoul] of privacy laws." One interesting trend (although not directly related to employee privacy) is the use of artificial intelligence to screen employees and gauge their competence for certain jobs. Last October, Amazon.com announced it was scraping an AI tool that had shown a bias in favour of male applicants for its software developer jobs. This would include penalizing resumés including the word "women's" and downgrading graduates of two women's colleges in the United States. And Rudner sees a privacy risk in hiring using third parties; a private third-party company may tell you "who the best candidate is for a job," he says, "but what are they doing to make sure that [candidate] data is protected?" What employers should know Many employers have not yet come to grips with what they can and can't do, says Rudner. "I think there's just so much confusion out there. Most employers have no ill intent; they're trying to protect their businesses and assets, [and] it's so easy to install video cameras or monitor key strokes on a computer." But they don't understand the limits of what they can legally do, he says. The flip side of that is all the employee personal information, including contact details and social insurance numbers, that espe- cially smaller employers may not be taking proper steps to protect. "That may be sitting on a hard drive somewhere." In short, says Rudner, employers "shouldn't gather more infor- mation that they can justify," for reasons of both employee privacy and data protection. "You don't need to have dates of birth, drivers' licence numbers stored on a hard drive," even though it may be tempting for employers to store as much information as possible. Workplace monitoring may be acceptable absent a collective agreement provision that prohibits it, says Brown, but it should not be overly intrusive (e.g., video cameras in private areas), and it should "serve a legitimate business purpose in order for the meth- odology to be deemed reasonable," she says. "Just because [employ- ers] can use some methods doesn't mean they should." Where covert surveillance might be appropriate, through moni- toring email and cellphone use, employers should give employees advance warning, Brown says. And since transparency is essential to developing a good workplace culture and bond of trust between employees and their management team, everyone should be aware of monitoring methods being employed, data being collected and how it will be used. With the rise of technologies that are cheap and easy to use, it can be easy for "employers to just charge ahead and use them with- out fully appreciating" what they're doing, says Kennedy. "So, the challenge is to keep an eye on what they're collecting and how it triggers the applications of these [privacy] principles." Canadian Employment Law Stacey Reginald Ball More than 7,000 cases cited Canadian Employment Law is a one-stop reference that provides a thorough survey of the law and analysis of developing trends, suggesting potential avenues of attack as well as identifying potential weaknesses in the law. Canadian Employment Law has been cited by the Supreme Court of Canada, in superior courts in every province in Canada, and is used in law schools throughout Canada. The eBook* version is available through your web browser, or can be downloaded to your computer, tablet, or smartphone. Learn more at store.thomsonreuters.ca/ proview. *eBook not available to trade bookstores, third-party distributors, and academic institutions. Available risk-free for 30 days Order online: store.thomsonreuters.ca Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Also available online on WestlawNext® Canada EmploymentSource™ © 2018 Thomson Reuters Canada Limited 00255NF-A95033-CM Print+ProView eBook* Order # L95983-65203 $537 2 volume looseleaf supplemented book Anticipated upkeep cost – $480 per supplement 4-6 supplements per year Supplements invoiced separately ProView eBook* only Order # L95984-65203 $505 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. 82 Scollard Street, Toronto, Canada, M5R 1G2 Contact Stacey Ball at (416) 921-7997 ext. 225 or srball@82scollard.com web: www.staceyball.com Ball Professional Corporation Excellence in Employment & Labour Law • Counsel in Leading Cases • • Author of Leading Treatise • Wrongful Dismissal Employment Law Human Rights Post Employment Competition Civil Litigation Appellate Advocacy Disability Referrals on behalf of employees and employers respected all_CL_Mar_12.indd 1 12-03-13 2:27 PM

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