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THE QUESTION
My manager suspects one of my coworkers is slacking and wants proof. Because I sit behind them, my manager asked me to take a picture or video of them when they’re doing something that’s not allowed, such as browsing the web or scrolling social media on their phone while at their desk.
This feels wrong to snitch on my colleague, especially when I think they’re going to use it to fire them. I’ve been avoiding it but my manager keeps asking if I’ve gotten the evidence already. Is this allowed or even legal to do in the workplace, to ask someone to get evidence like this?
Could I get in trouble for taking the photos and video, or for telling my boss I don’t want to do it? What should I do?
THE FIRST ANSWER
Jonquille Pak, founder, JPAK Employment Lawyers, Toronto
There are no blanket laws against taking a photo or video of a co-worker in the workplace. Employers can monitor employee productivity to document issues as they arise and to discipline or terminate an employee if there is just cause in the circumstances. Employee monitoring, however, should be done in a manner that is in good faith, reasonable and is not unduly intrusive.
In many workplaces, employee monitoring and recording are governed by written policies that set out when, how and for what purposes employees may be monitored or recorded. You should review your employer’s policies carefully. Participating in conduct that violates those policies, such as covertly recording an employee, could expose you to risk of disciplinary sanction.
While employees generally have a duty to follow reasonable directions from their employer, this duty does not extend to following directions that are improper, potentially unlawful or that expose the employee to personal or professional risk.
Asking you to secretly gather evidence against a co-worker is not aligned with best practices. The request creates an uncomfortable work dynamic and understandably could lead to a loss of trust. Personnel matters of this nature are generally confidential and your manager should be addressing the issue discreetly through appropriate management or HR channels.
There is good reason to feel uncomfortable with the request and you have a right to refuse it. Declining this request should not expose you to discipline. If your manager retaliates against you or continues to pressure you, consider raising the issue with a trusted member of management or HR and seek legal advice.
THE SECOND ANSWER
Joshua Lerner, partner, Lerners LLP, Toronto and London, Ont.
Your instincts are right. This request could be a problem for you, not just your colleague. What your manager is asking you to do is both legally and ethically questionable, and could cross the line into privacy law or even criminal law territory.
Let’s start with privacy. Secretly photographing or filming a coworker at their desk, especially when you’re capturing what’s on their personal phone screen, can amount to an invasion of privacy under Ontario common law. The person who actually takes the pictures – you – can be sued personally, not just your employer. And if your phone happens to pick up audio of their conversations or calls, you could even be running into Criminal Code territory, because recording a private conversation you’re not part of is an offence.
Now, the workplace side. Legislation varies by province, but in Ontario, employers with 25 or more staff are required to disclose in writing how they monitor employees. Asking a coworker to do it covertly is the opposite of that approach, and isn’t how legitimate performance concerns get addressed. You do not need to be your employer’s spy.
Can you be disciplined for refusing? An employer can only discipline you for refusing a lawful and reasonable instruction; this request is arguably neither. Firing you outright for saying no would be hard to justify.
Here’s how I would recommend dealing with this situation. Don’t take the photos. Document the request and respond to your manager in writing. A simple reply works: “I’m concerned this could be seen as an invasion of my coworker’s privacy and I’m not comfortable secretly recording or photographing them.”
Ask them to put any further instructions in writing and confirm HR has approved. Keep notes of every exchange. If the pressure continues or you face discipline, speak with an employment lawyer before doing anything further.
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