Can an Employer Monitor Employee's Computer for Private Material

A recent Ontario case involving a criminal charge against a teacher for possession of child pornography has garnered significant media attention.

Ontario Supreme Court Decision

Ontario Court of Appeal Decision

This is in part because of a wide interest by employees about the privacy of information they choose to keep on computers at work.

Workplaces often have little or no express policy regarding private use of computers at work.

This particular case involved portable computers provided for the use of teachers, where the teachers were allowed to use computers for personal purposes.

In these circumstances, the Ontario courts decided that in a criminal investigation for possession of child pornography (the accused was found in possession of a nude photographe of a grade 10 student) a police search of the teacher's laptop without a warrant was a breach of his Charter rights, in spite of the School Board having permitted the search.

The implications for employees and employers are significant, not only for criminal cases, but claims involving employment law principles and disciplinary steps up to dismissal. Inappropriate searches of employee computers might in some cases amount to a constructive dismissal, leaving the employer exposed to a wrongful dismissal claim.

Employers and employees would both be served by a workplace with express policies regarding the personal use of computers by employees.

Employers who wish to ensure an unfettered ability to search computers (used by employees) without limitation might want to establish and communicate clear written policies which set the ground rules.

Employers might for example take steps such as ensuring all computers they wish to monitor are employer owned, establishing and communicating clear written policies which inform employees of the employer's right to monitor all communications, to prohibit private use of computers (should that be appropriate), or if private use by employees is permitted, at least to expresssly restrict the use of computers for inappropriate purposes.