Me Claudia Dubé
Employers are aware of personal information concerning their employees, such as: their social insurance number, address, day of birth, family situation, working experience, training, education, bank account number, medical information, criminal record and the amount of time spent on the Web.
Given their situation, employers are responsible for the way this information is used. They must therefore be thoroughly informed of their rights and obligations. When it comes down to collecting, using, holding, and communicating personal information, private companies in Quebec are submitted to An Act respecting the Protection of personal information in the private sector (hereinafter « Quebec Law») and also, on a more general basis, to the Canadian Charter of Rights and Freedoms as well as to the Quebec Civil Code.
The information protected under Quebec law is that which enables the identification of an individual. A company may put together a file on an individual and collect the necessary information in that regard, as long as it has a serious and legitimate interest to do so. But only the “necessary” information may be collected. What is considered “necessary” information is not simply useful; it is required. What is, in practice, the information an employer may ask when meeting a potential candidate.
The information "allowed" at the pre-hiring stage
The information an employer may ask at the pre-hiring interview, is the one that will enable him to evaluate a candidate’s abilities and qualifications in regard of the job he or she is applying for. This information includes training, working experience and certain details concerning the candidate’s professional and personal abilities and qualifications. This information may be collected through tests, exams, questionnaires, and interviews. However, the obtaining of the social insurance number, date of birth or any banking information is considered unnecessary at this stage, and such information will only become material at the time of hiring.
Psychological and psychometric tests are considered to be highly intrusive when performed at the pre-hiring stage (1). They could be justified if the employer is able to prove that such intrusion is necessary in order to evaluate particular requirements related to the nature of the job. However, the employer should obtain the candidate’s consent prior to submitting him to such an evaluation at this stage, and the results of said evaluation should only be used to serve the object of the consent, being the pre-hiring process (2).
Employers are also preoccupied by the question of a candidate’s judicial history. One should know that it is illegal to refuse to hire, to fire or to penalize an individual in any way whatsoever, on the only basis of his judicial history, if said judicial history has no relation with the job the individual is applying for or occupying. In order to respect one’s right to private life, the judicial information collected should be limited to cases that are compatible or directly related to the job.
As far as pre-hiring medical exams are concerned, they are generally limited to certain particular jobs where the candidate’s security and/or the security of others could be endangered because of said candidate’s particular disabilities, if such is the case. Once again, the “necessity” criteria must be evaluated in regards of the type of position one is applying for. A medical problem unveiled by such exams could put a stop to the hiring process, if the employer is able to demonstrate there is a rational relation between the medical condition and the job.
(1) Commission des droits de la personne et des droits de la jeunesse vs Institut Demers inc. [1999] R.J.Q. 3101 (T.D.P.Q.), SOQUIJ AZ-5007860 and Carignan vs Québec (C.S.) EYB 2007 12544
(2) Carignan c. Québec, previously stated
Employees' surveillance
Before performing surveillance on his employees - either through video camera, telephone tapping or e-mail verification - an employer must ascertain that he has good reasons to limit said employees’ private life at work (i.e. reasonable doubt that an employee steals, vandalizes, etc.). It should be noted that continuous surveillance without reasonable motives surely constitutes an infringement to one’s right to private life. Before going ahead with surveillance, an employer must ask himself if such a practice is necessary and efficient to answer a specific need, if an intrusion in one’s private life is proportionate to the results it would bring, and if there is a less intrusive way to attain the same goal.
Finally, another way to collect personal information at work that should be looked at further and accepted by employees is biometrics. This technology consists in identifying physical particularities unique to each individual (fingerprints, shape of the hand, of the face, of the eye [morphological biometrics]) or to index particular information about an individual (his signature, his voice impression, the way he types on a keyboard, the way he walks [behavioral biometrics]). It should be noted that according to An Act to Establish a Legal Framework for Information Technology, the person who wishes to use such systems must obtain the express consent of the concerned individual, and must destroy such information as soon the goal of identifying or confirming the identity of such individual is achieved. Furthermore, any employer wishing to implement such a system, must, prior to doing so, divulge his intentions to the “Commission d’accès à l’information”.
Conclusion
All in all, the employer’s right to collect personal information on his employees also brings upon him the obligation of respecting his employees’ private life. Therefore, every time an employer collects information on one of his employees, he must ask himself if said information is necessary and ascertain that the use of such information corresponds to the reason for which it was collected in the first place. The use of this information for reasons other than those for which it was collected will have to be previously approved by the concerned employee.
The present article is not a legal opinion and is published for information purposes only. For more information concerning this subject or any related subject, please do not hesitate to contact the writer or one of our professionals.