He Said, She Said: Is it Legal to Record Your Boss? Your Harasser?

If you believe it’s illegal to record your boss or tape your harasser at work, you’re not alone. But you may have been misled. In fact, most Ontario employees can legally record their boss or workplace. And recording abuse or harassment can help if you end up telling your story in court, at the Human Rights Tribunal or Labour Relations Board. So, what does the law really say about taping workplace conversations?

IS IT LEGAL TO RECORD YOUR BOSS?

In short, yes!

Under Canadian law you generally can’t deliberately make secret recordings of other people’s private conversations (i.e. you can’t ‘bug’ your workplace). However, it’s not a crime to record a private conversation if one party to the conversation consents. In other words, in a one-on-one conversation, one person can legally record the other without their knowledge or consent. And, it’s not a criminal offence to record public comments (think: speeches).

In the right circumstances recordings of workplace conversations may helpful evidence in labour, employment law and human rights cases.

For example, in Percon Construction Inc, 2010 CanLII 4360 (ON LRB)  the Union relied on audio recordings of conversations with managers during a union drive in an application for interim relief. The managers did not know they were being recorded, and one told an employee that they did not want to hire “union guys”. It’s illegal to refuse to hire some one because of their support for a union. In response, the Ontario Labour Relations Board ordered the Employer to reinstate 6 fired construction workers.

And, at the time of writing, (in-)famously, Wilfrid Laurier Teaching Assistant Lyndsay Sheppard is seeking considerable damages after recording herself receiving a reprimand for airing a Jordan Peterson clip in class. – So is Peterson.

PROBLEMS WITH RECORDING YOUR BOSS

There are, of course, exceptions to the rule that secret recordings are legal.

For example, it might be illegal to record or share recordings of your workplace if that entails recording people in intimate moments or a state of undress (i.e. in your work change room or while providing personal care to a patient). It could also be a problem if you deal with confidential or secret information on the job.

Even if you aren’t guilty of a crime, in some circumstances a secret recording can lead to a lawsuit based on “intrusion upon seclusion” (a.k.a. invasion of privacy) or may amount to a regulatory violation.

Other times, the strategy may breach your employer’s internal policies- or just backfire in Court.

For example, in 2017 a Manitoba judge considered the wrongful dismissal claim of an employee who used his company phone to record multiple confidential work meetings over a 4-month period. The Court heard the recordings but decided that they supported the employer’s argument in favour of dismissal. Specifically, the Court thought that the worker had violated his confidentiality obligations and misused company property. His claim was dismissed.

CAN MY EMPLOYER RECORD ME, TOO?

This depends. An employer is entitled to record the workplace for safety reasons, to prevent or monitor activities like theft, and for training purposes. In this way, security cameras or recordings of phone calls can actually help protect employees.

Other times, an employer’s video surveillance or other recordings in the workplace may not reasonable and may even be illegal. A few key considerations are:

• Do employees know that they are being recorded? Do they know where security cameras are located?
• What reason does the employer have for recording the workplace? Do employees know the reason? For example, are security cameras being used to keep workers safe or are phone calls being recorded to do quality assurance?
• Do the recordings violate an employee’s reasonable expectation of privacy (such as in changing areas)?

In a unionized workplace, there may be strict limits on the use of recordings. For example, some Collective Agreements let employers use cameras for security reasons, but not to monitor employees’ work.

Even if your employer is legally recording you at work, they may have special responsibilities in respect of these recordings which an average employee does not have. Employers have to take steps to protect employee and customer personal information, for example.

WHAT DO I DO?

Whether or not to record your boss or your co-worker – or how to use a recording you’ve already made- can be a complicated question. The same is true if you feel uncomfortable about video surveillance at work. If you’re unsure, consider speaking with a lawyer about your options.

 CASES REFERENCED

• Percon Construction Inc, 2010 CanLII 4360 (ON LRB)
• Hart v Parrish & Heimbecker, Limited, 2017 MBQB 68 (CanLII)