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Accessing Your Employee File

With PIPEDA (the new privacy legislation), some benefit while others don't

Column which ran in the

Did you happen to hear about last week’s massive privacy breach in the U.S.? ChoicePoint, one of the world’s largest aggregators of personal data, admitted it sold confidential information about more than 140,000 people, including some members of congress, to identity thieves. This got me thinking about how our private information is protected in Canada’s employment sphere. As it turns out, the news is mixed depending on the type of employer you work for.

According to Renee Couturier, spokesperson for the Office of the Privacy Commissioner of Canada, if you toil for the government, or for any of its “federal works undertakings and industries,” you are covered directly by the Personal Information Protection and Electronic Documents Act (PIPEDA), a fairly recent piece of legislation.

If not, you’re not. But for those under PIPEDA’s umbrella, the protection is liberal. “In federally legislated companies, employees have a right to see their personnel files. Also, the employer must specify the purpose for collecting data, and is restricted to using it for its intended purposes only,” says Coutourier. In other words, you should only be asked about things that pertain to your terms of employment. This includes your home address and contact number, next of kin in case of emergency, designated beneficiaries on insurance forms, names and ages of partners or children for benefits purposes and the like.

The Act stipulates that employees must be able to challenge the accuracy and completeness of information about them (some exceptions are permitted). However privacy and information technology lawyer Michael Power adds a clarifying twist: “There are facts about employees, and opinions. You have the right to access and correct the facts, not your employer’s opinions about you.”

Powers, from the Ottawa office of law firm Gowling Lafleur Henderson LLP, says that even if the employer lets you look at any opinions they may have about you in your file, you do not have a right under PIPEDA to have them changed—no matter how much you disagree with them. At best you might be allowed to pop a document that expresses your points of view into the folder.

If the safety of your data concerns you, Coutourier notes employers are advised under PIPEDA to take security precautions, such as encryption, keeping files in locked cabinets, having secure premises, and allowing access to files on a need-to-know basis only.

How do you know if PIPEDA applies to you? If you work for the federal government. Also, if your employer is governed by the Canada labour code, generally you fall under federal works, undertakings and businesses. A list of these is available at www110.hrdc-drhc.gc.ca/sfmc_fmcs/lcctr_tclcr/page7.html.

On the private sector side, where 85% of employed Canadians earn their keep, PIPEDA does not apply to the employment relationship. Instead, the privacy of your personal data in the hands of an employer is a provincial matter. Unfortunately only B.C., Manitoba, Saskatchewan and Newfoundland have statutes in this realm. For instance, B.C. enacted the Personal Information Protection Act (PIPA) in 2004. However "Contact information" and "work product information" are not considered personal data and are excluded under PIPA.

The most important exception is for "employee personal information,” according to go2hr.ca. They refer to a bulletin from law firm Borden Ladner Gervais, where “employee personal information” is defined as data about an individual that is collected, used or disclosed solely for the purposes reasonably required to establish, manage or terminate an employment relationship between the organization and that individual. This may include information documented on the employee's resume and personnel file such as performance issues, investigations or discipline, reference/background checks, and criminal record checks.

The bulletin says “Provided the particular information falls within the statutory definition, employers are permitted to collect, use and disclose ‘employee personal information’ without consent, provided that notice had been given to the employees in advance.” So the folks you work for can release your private information, just so long as they let you know they’re doing it.

From Power’s perspective, there are three types of private sector companies when it comes to letting you see your employment info: No access, access but with arbitray rules, or access according to standardized rules or procedures. Keep in mind that this is at the discretion of your employer. If they refuse to show you your employee file, you have absolutely no recourse legally.

And should your employee file somehow leak out publicly, you’re pretty much at your company’s mercy. Unlike consumers, you can’t call on Dr. Anne Cavoukian, Ontario’s Privacy Commissioner, because the laws are moot on this issue. Power advises that, under common law, within torts (damage, injury, or a wrongful act for which a civil suit can be brought) you could sue for invasion of privacy. It’s a growing trend in Canada so there may be hope down the road.

For more information on PIPEDA, visit www.privcom.gc.ca. You’ll find oodles of info--even a video explaining the Act’s finer points. Coutourier says the legislation is up for review by parliament in 2006. The Office of the Privacy Commissioner of Canada will be holding consultations with Industry Canada soon. They welcome your input, so if you have views you’d like to express you can submit them by writing, by e-mail or by phone. One thing’s for sure: Your comments will be kept confidential.

Mark Swartz, MBA, M.Ed., is a speaker, career coach and author. He can be reached via e-mail. The above article may contain material not included in the edited version.

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