The advancement in science and technology has changed the modern workplace for the better. Recording in the workplace is one of those issues that remain complicated. Technology provides easy access to information, facilitates remote working, and provides better connectivity. It also allows employers and employees to store data efficiently and communicate effectively, among other things.
However, the rapid development in technology has raised some unexpected legal issues for employers. Digital recording devices such as smartphones have made it difficult for employers to protect their privacy. These devices allow employees to record their meetings with their colleagues and senior management. They may even take pictures of confidential documents and transmit data without permission.
It has put the modern employer in a difficult position. They must try to balance their company’s need to protect its privacy against their employees’ right to use their cell phones.
Is it legal for your employees to record in the workplace? Can you take any action against an employee for recording in the workplace? Can you terminate their services for recording on the office premises? We will answer these questions for you in the article below.
Is it Legal for Your Employees to Record in the Workplace?
According to section 184 of the Criminal Code, a person cannot record a conversation without the permission of at least one of the parties. This is called a one-party consent exception.
A person may record a conversation if they are a party to it. It means, legally, your employee may record their conversation with the company’s chief executive officer without permission. However, they cannot record the private conversations of their peers.
If you catch your employee recording in the workplace, you should contact an employment lawyer to discuss your options. They can advise you on your legal options and help you take action against the worker.
Can You Terminate Your Employees for Making Secret Recordings Without Permission?
In Canada, employers can terminate their employees’ employment with just cause or without cause. When an employer dismisses an employee for cause, they must give the employee a reason for termination. In contrast, they are not required to provide their employee with any reason while dismissing without cause.
Typically, an employer may terminate an employee for cause when they commit an act of serious misconduct. Examples of serious misconduct include theft, dishonesty, physical violence, or insubordination.
An employer may dismiss their workers with just cause for recording in the workplace without permission. However, they must ensure that employees are aware that recording in the office is prohibited and could result in dismissal.
Employers can introduce a workplace policy prohibiting employees from recording in the office. They can mention in the policy that the employees who violate it can be dismissed for cause. Companies may also add such a term in their employment contracts.
A chief legal officer (CLO) can help you draft a workplace policy banning employees from recording in the office. A CLO heads a company’s legal department and usually reports to the company’s chief executive officer. The company’s legal team is responsible for reporting to the chief legal officer and acting on their instructions, among other duties.
A CLO’s job description includes advising the board of directors regarding the company’s legal and regulatory obligations.
A CLO is the in-house legal help you need to solve your legal problems. They can advise you on employee dismissals, human rights and disability accommodation, performance reviews, employee management, and so on.
Can You Take Legal Action Against the Employee Who Makes Secret Recordings in the workplace?
Recording someone without their permission is a crime. If your employee records someone in the workplace without their permission, the injured party may file a criminal complaint against the offending employee.
The injured person may also sue the person who recorded them for intrusion upon seclusion. The tort of intrusion upon seclusion seeks to redress the situations where someone knowingly invades the privacy of another. To prove intrusion upon seclusion, the injured party must show the court that:
- The other party’s conduct was intentional or reckless;
- They invaded the injured party’s private affairs or concerns without any justification; and
- A reasonable person would regard the invasion as highly offensive.
An employment lawyer can represent you in suing your employee for secretly recording at your office premises. As your legal counsel, they can advise you regarding your legal rights and remedies. They can help you at each stage of the litigation process, from issuance of the statement of claim to trial.
Sometimes an employee who has been dismissed files a wrongful dismissal claim against their employer.
An employment lawyer knows the ins and outs of a wrongful dismissal claim. They can help you defend a dismissal with just cause by showing that you terminated the employee for breaching company policy. If you dismiss your employee without cause, an employment lawyer will try to reduce the dismissed employee’s notice period entitlements.
An employer must ensure employees do not infringe on their colleagues’ or the company’s privacy. They may take certain steps to prevent their employees from recording in the workplace. An employer can introduce workplace policies and employment contracts that forbid recording at the office premises.
Despite all the possible protective measures, an employer cannot ensure that their employees won’t record in the workplace. The best they can do is to prepare themselves for the worst.
A legal counsel or a CLO can provide legal services to your company. They can advise you on employee terminations, contract review, policy issues, and so on. An employment lawyer can help you sue your employee for recording in the workplace without permission.
If you want to take legal action against your employees for recording in the workplace, our employment lawyers can help. Please don’t hesitate to contact our experienced employment lawyers at Achkar Law. You can contact us by phone toll-free at +1 (800) 771-7882 or email us at firstname.lastname@example.org, and we will be happy to assist.
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