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THE QUESTION
I completed an employee feedback survey that was supposed to be anonymous. I gave specific, honest critiques about the bad onboarding procedures and my boss not being available to support us properly. Since then, my boss has made several references to my feedback in one-on-one meetings. I also believe I’m being looked over for promotions and learning opportunities because of the feedback I gave. Do I have any recourse if anonymous employee feedback wasn’t actually kept anonymous?
THE FIRST ANSWER
Preet Mandair, associate, Taylor Janis Workplace Law, Vancouver
The answer to this question is yes, you do have recourse if this information is being used by your boss to harm your current employment prospects.
An employer should disclose to its employees that they are collecting data through anonymous surveys. They should state what information is being collected and what will remain private, such as their name.
If they fail to do that, the employer leaves themselves open to legal action depending on the circumstances. Employers can better protect themselves against legal action by having employees sign a “Terms of Use” policy, or to obtain the consent of the employees before conducting the surveys.
Contrary to the above, employees should be aware that they do not have an automatic right to privacy. For example, employers should provide clear workplace policies on how electronic equipment and systems will be monitored. Employee privacy will be based on the context of whether the conduct was reasonable.
In your circumstances, you can submit a complaint to the privacy commissioner to see whether the employer’s actions were considered unreasonable and violated employee privacy. In addition, you can also specify whether your employer failed to inform you that the results of the survey would be used and disclosed in this manner.
A key principle is that an employee’s right to privacy must be balanced with the employer’s right to collect, use or disclose an employee’s personal information for legitimate business purposes.
If an employee asserts that their employer has violated their right to privacy, the commissioner will assess this claim objectively by conducting a comprehensive analysis of the circumstances in which the alleged breach occurred, including any applicable policies and whether those policies are enforced in practice. If the commissioner finds that the expectation of privacy was not reasonable, it will not find that a breach occurred. They will also look at whether an exemption applies to the situation or whether the collection, use or disclosure is reasonable for the purposes of establishing, managing or terminating the employment relationship between the organization and the individual.
THE SECOND ANSWER
Muneeza Sheikh, founding partner, Muneeza Sheikh Employment and Human Rights, Toronto
It is incredibly disingenuous (and possibly unlawful) for the company to publicize (even just to management) the results of a survey where they promised confidentiality. If a company lies to its employees about their right to confidentiality, only to use the information they learn from those who are criticizing the company to penalize them, that creates toxicity in the workplace and the company could be sued for its actions. Employees regularly file wrongful termination suits about toxicity in the workplace that employers create. Employers have a legal obligation to act in good faith – promising confidentiality when there is none is a breach of that incredibly important obligation.
If confidentiality was breached, you can report the issue to HR. This is particularly important if you feel that there has been differential treatment since you shared your thoughts through a portal that was presumably not meant to erode your sense of security in the workplace.
While being hurt or offended by your comments might be understandable, if your boss is wielding their power to punish you for your honest feedback, it may potentially be a constructive dismissal, particularly if it has resulted in toxicity in the workplace. If your employer creates toxicity in the workplace for you, it could prevent your ability to do your job.
Targeting employees for making comments or sharing thoughts in what they thought was a “safe space” undermines an employer’s obligation to create a healthy working environment. The issue of breaching confidentiality of this nature also creates a serious issue around employee morale.
It is simply not okay to lull employees into a false sense of security only to turn on the ones who provide feedback that management does not like. I think your experience merits a fulsome discussion with HR and some investigation into why the sudden treatment of you by your manager has changed.
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