By Howard Levitt and Muneeza Sheikh
Employers should tread carefully when asking about an employee’s personal life — if they ask at all
The recent employment law landscape has included several important court decisions and ample discussion around an employee’s right to privacy. But, despite the interest, there is little clarity.
Are employees entitled to privacy? How much? What rights to privacy do employees have on work-owned devices? Can employers ask any personal questions? What happens if the employee refuses to answer them?
This past week, a story involving NHL coach Mike Babcock made headlines. Babcock, hired just two months ago as coach of the Columbus Blue Jackets, was reportedly asking players if he could see family photos on their personal phones.
Babcock was adamant: the question was posed in good faith with good intentions. He wanted to get a sense of who his players were in their personal lives. He wanted to get to know them better.
But the explanation has sparked discussions around positional power, and its misuse — and abuse — in the workplace. In this context, without a doubt, Babcock was in a position of power in relation to the players he coached. The relationship was no different than that of senior level management asking personal questions of their subordinates.
While we do not doubt that Babcock’s intentions were without malice, we think he crossed a line.
What an employee does in their private life should remain private — or, at least, private-ish. There are exceptions to this rule: If what you (the employee) do in private becomes public and flies in the face of the core values of the company you work for, it becomes the company’s business.
If an employee’s private life points to decisions, social-media postings, and/or lifestyle choices that would embarrass or undermine the organization that they represent, it could lead to discipline, or even termination.
While we know nothing of the photos or whether any of the players complained in Babcock’s case, the coach’s actions remain problematic.
A request to see photos at all is unnecessarily nosey (what if, for example, a player was estranged from his family?) but a request to see the photos on a player’s phone is more troubling. In our view, it would have been marginally better to ask players to share something personal of their choosing without encroaching on their personal devices or aspects of their lives they wished to keep private. It would have much better not to ask anything at all.
While privacy legislation in Canada has been murky for years, this much is clear: when employers ask employees questions that may make them uncomfortable, those same employees are likely to choke down any discomfort and answer anyway.
In some cases, employees may only answer uncomfortable questions out of fear. They are afraid of angering their boss.
They are afraid of discipline. They are afraid of being maligned at work. And with plenty of examples from our own practices, sometimes they are afraid of being fired.
Most employers also know through years of de-facto human rights education, that asking personal questions about someone’s family status, race, age, ethnicity (by way of just a few examples) could lead to a breach of an employee’s rights under Human Rights legislation. In short, if you as an employer learn something about an employee under an enumerated ground, and use it against them, you have discriminated against them. Even if you do not use it against them, the employee can ascribe any ill-treatment to the employer having that information and potentially file a human rights complaint.
If Babcock learned through the player’s family photos about lifestyle choices he did not approve of, and then used that information against the player in question to punish them, it would be unlawful, with significant exposure to the team and league.
While we are not suggesting that Babcock or the NHL would hold any such prejudices, it always better to err on the side of caution, and not ask employees to reveal information that has little to do with their ability to do their job.
The blunder however does not only contain lessons for employers; there are important ones for employees as well. It is best to ensure that your work-owned device (in this case the phones were personal phones) do not contain information that you wish to keep private from your employer. While recent legislation in Ontario now places a burden on employers to disclose that they are monitoring workplace devices, they are still free to monitor as they see operationally fit. This means, if private photos are on a work phone, you run the risk of your employer seeing them. If the photos raise questions around your ability to do your job, your employer could use them against you.
Even when speaking about personal devices, there is no legislation that prevents employers from asking for phone access. The decision however lies with the employee to say yes or no.
Positional power debates have taught us repeatedly that there is a fine balance between being inquisitive in a healthy way and making employees uncomfortable and trapped into having to answer questions they would otherwise avoid. Our own practices have shown us that often employees are cemented into acquiescing to every employer request. Employees say yes because they are conditioned to say yes.
Reading cues and body language is important, and when in doubt, employers should always consult their human resources departments about what crosses the line.
Like Babcock, other employers in the past have argued that their mis-steps when venturing into questions around personal lives were made in good faith. The best way in our view to create positivity and good morale in the workplace, is to allow employees privacy where you can.
The less an employer knows, the better chance they have of protecting themselves against a human rights or other complaint related to the disclosure of information that should have remained private.
On Sept. 17, Babcock resigned as coach of the Blue Jackets.
The lesson for those involved and employers everywhere is to focus on how your employees do their jobs and not their personal lives.