October 2011-Until a recent case, it was thought that employers had the right to insist that their employees could only use computers and smart phones owned by the employer for business purposes. Most employers have established strict policies restricting the use of office computers for personal use. Some have even installed software to monitor and/or keep employees from accessing popular social network websites like Facebook, YouTube and Twitter. A U.S. study in 2007 indicated that 40% of employers in that country monitor worker's files. If an employer discovers misuse, this can be grounds for dismissal. No one can deny that the temptation for employees to use their office computers for personal use is strong. Who has not received an e-mail from a friend or relative, which has clearly come from his or her office computer? From an employer's perspective, this can be a work distraction and a waste of an employee's time. Also, there is the possibility that the employee is involved in storing and/or sending pornographic materials. Obviously, such activity could reflect poorly on the employer and the employee, if it came to light.
However, what about computers or smart phones, which the employer allows, and even encourages, employees to take home. This was an issue in a recent criminal case which wound up in the Court of Appeal in Ontario, the highest court in our Province. In this case, a Sudbury high school teacher was charged with the possession of child pornography after it was found on his computer. The computer was a laptop issued by his employer and which he was allowed to take home. The Court declared that, based on the employer's policy in this case and by giving laptop computers to the employees to take home, there was an "explicit permission to use the laptops for personal use". The Court also confirmed that there is a reasonable expectation of privacy by the employee in this situation.
The rational for many employers to let employees take their laptops, smart phones or tablets home is to have their employees available 24/7. However, it is very doubtful that this case would extend to the situation where the employee is not allowed to take their devices home. In other words, the employer has the right to limit personal use of a computer or smart phone during work hours. Also, if the "off hours" material is contrary to human rights legislation (ie bullying or harassment of other employees), releasing trade secrets or harming the company, the courts will not be sympathetic.