Can you trace calls on company cellphones?

Another employer has run afoul of privacy laws in Canada, and, once again, the employer’s actions may have been lawful if the employer had a clearly communicated policy in place.

In this case, a former employee of a non-profit organization (the “Employee”) complained to the Alberta Office of the Information and Privacy Commissioner, alleging that his former employer (the “Employer”) contravened the Personal Information and Protection Act, SA 2003, c 6.5 (“PIPA”) by tracing the numbers he had dialled on his company cell phone.

The employee learned his calls had been traced after he was called into a meeting with his managers and chastised for using the phone for personal calls. At the time of the meeting, the Employee had just less than one year of service with the Employer.

The Employer argued the numbers were traced as a part of an investigation to determine whether the Employee was breaching his employment contract by making the personal calls. The Employer’s stated purpose of the investigation was not to uncover the content of the calls or what the calls revealed about the Complainant, but to determine whether the calls were work-related.

The Employer claimed it had an unwritten “acceptable use” policy that indicated company cell phones could only be used for work-related purposes, and that this policy was “customarily” communicated verbally to each employee when they were provided with a company cell phone. The Employer also claimed that all of its policies were incorporated into the Employee’s employment contract and, therefore, a breach of the policy is a breach of the contract. This was an important distinction for the Employer to try to make, because PIPA allows employers to collect, use and disclose employee’s personal information without the consent of the employee when the Employer conducts “investigations” related to the employee’s breach of the employment contract.

The Employee denied being told he could only use the phone for work, adding he was only told that the phone’s calling plan included a given amount of local and long distance air time per month, and he would be contacted if he went over the allotted amount, which he never did. He also claimed it was typical for employees to use other work equipment, such as landline phones and photocopiers, for personal reasons, provided that the use is limited and reasonable.

The adjudicator held that the evidence indicated the Employer did not have an acceptable use policy for cell phone use until after the tracing occurred. He added that, pursuant to PIPA, a policy must exist, it must be clearly communicated to employees, and it must be incorporated in the employee’s employment contract before an employer can conduct an investigation of a putative breach of a policy that is incorporated as a term of an employment contract.

The adjudicator added that tracing phone calls made on company phones may not contravene PIPA in circumstances where the employer does not have a policy and the employee is alleged to be harassing or threatening others or tarnishing the employer’s reputation, as these actions may be considered an implied term of the employment contract.

This adjudicator’s decision is one in a line of recent privacy law decisions in an employment context, including R v Cole and Jones v Tsige, in which statutory and common laws were violated.

Judges and adjudicators in Canada are sending a public message to employers to use and protect private information with care. Employers are wise to pay attention.