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March 1, 2011

Obtaining Production of Employees’ Personal Cell Phone Records

Authors Malcolm MacKillop and Hendrik Nieuwland

The use of computers and personal cell phones at work has captured the attention of many human resource professionals in recent months. This issue came up in the case of Canadian Pacific Railway Company v. Teamsters Canada Rail Conference (Case No. 3900). The issue in that case was whether the employer had the right to request an employee’s personal cell phone records following a serious workplace accident. According to Arbitrator Picher, the answer was yes.

In the CPR case, the employer had a policy prohibiting the use of cell phones while on-duty. The employer subsequently implemented a broader policy requiring employees to provide their cell phone records to the employer where the employee was involved in a serious workplace accident, which was otherwise unexplained. Pursuant to the policy, the employer was only interested in obtaining information that identified where and when the cell phone was used. In addition, the employer did not apply discipline for the failure to provide cell phone records; rather, the employer reserved the right to draw an adverse inference against those employees that failed to co-operate.

The union filed a grievance alleging that the policy requiring production of cell phone records was unnecessarily intrusive and infringed on the privacy rights of employees. At the hearing, the employer argued that it was necessary to obtain the cell phone records in order to complete a full investigation into the accident and to ensure safe operations generally.

The union’s grievance was dismissed. Arbitrator Picher held that based on the safety sensitive nature of the railway industry and the limited scope of the production request, the policy was reasonable and justified. There was no other equally reliable and less-privacy invasive way of being able to complete an investigation into accidents and ensuring safety in the workplace.

It should be noted that the CPR case does not mean that production of employees’ personal cell phone records will be upheld in every case. Before implementing a policy requiring the production of employee’s personal cell phone records in your workplace, it is necessary to consider the following points:

1. Is the employer engaged in a “safety sensitive industry” or does the employee work in a “safety sensitive position”? In answering this question, arbitrators have considered whether the work risks the safety of the employee, other employees or persons generally, or the safety of property and equipment. If so, it will be recognized as “safety sensitive”. Examples of positions that may be classified as “safety sensitive” include employees charged with the responsibility of operating machinery in the manufacturing sector, employees in the water treatment industry, employees working with hazardous chemicals, transport truck drivers, construction managers, registered nurses, police officers, and others.
2. Does the policy address a legitimate employer concern? Has there been a series of unexplained workplace accidents that have caused personal injury, property damage, or lost production? If so, this would support the policy being upheld.
3. Does the policy intrude on employees’ right of privacy as little as possible? For example, if the policy requiring production of cell phone records is limited in scope to include only information related to whether the employee was on the phone and does not go so far as to request particulars of the conversations or text messages, the policy is more likely to be upheld.

Another factor that may insulate Ontario employers from challenges to cell phone policies similar to the policy in the CPR case is the Occupational Health and Safety Act, which requires employers to “take every precaution reasonable in the circumstances for the protection of the worker”. If there is reason to believe that on-duty cell phone use interferes with the “protection of the worker” or other workers, it may be reasonable for the employer to implement a similar policy to that in the CPR case, in order to ensure safe operations.

In conclusion, there is a developing trend amongst arbitrators acknowledging that the use of personal cell phones at work is on the rise. In light of the changing times, arbitrators appear to be inclined to allow employers to curb this conduct in the workplace by permitting policies that ban the use of cell phones at work and require production of personal cell phone records where the employee is involved in an unexplained workplace accident.

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