Privacy Commissioner John Edwards was asked about workplace surveillance, settling employment disputes, job references and other topics at a Privacy and Employment Law seminar for employers and human resources managers in Wellington on 3 September 2018.

In the hour-long breakfast seminar, he discussed many of the privacy aspects of social media, bullying and harassment and organisational restructuring in the workplace. We have, with the permission of the hosts, Kensington Swan, made the Commissioner’s guidance and advice to employers available in the videos below.   

Employee monitoring

The questions and scenarios discussed:

• • What privacy concerns should organisations consider when drafting policies relating to monitoring employees?
  • Your internet and email policy allows for reasonable personal use. However, one employee has been unproductive lately and always seems to be on social networking sites. Can you read the employee’s emails and internet history?
  • Your organisation is having issues with disappearing product. You want to install covert surveillance. Is this okay?
  • Can you track an employee’s vehicle movements when they are using company vehicles?

Checking job references

The questions and scenarios discussed:

• You are undertaking reference checks on an applicant you think is perfect for the role. You notice that the applicant doesn’t have a reference from their current employer, but you know the HR adviser there – is it okay to give them a call?
• Your applicant tells you to ring the current employer, and the applicant’s manager asks to speak ‘off the record’. Can you do it?
• After talking to an applicant’s referee, you decide the applicant isn’t quite right. The applicant now requests your notes from that conversation – do you have to disclose them?

Dealing with bullying and harassment

The questions and scenarios discussed:

• As a member of the HR team, you receive a serious bullying complaint about another employee. The complainant is adamant that the complaint must stay between the two of you but you think it needs to be escalated to manage the health and safety risk. Can this be done?
• The complainant sends a long email about how the respondent’s behaviour has affected their mental health. The respondent makes a privacy request covering that email. Do you disclose it?
• A witness requests an array of corrections after reading their transcript (including withdrawing some comments). However, the interview was recorded and the corrections do not reflect the actual conversation. Can you decline to amend the transcript?

Organisational restructuring

The questions and scenarios discussed:

• A former employee, who was not successful in applying for a new role, has now requested information about the employee who was successful – including their CV and interview notes. Does the organisation need to disclose these?
• Can you use psychometric testing in redundancy selection cases?

Settlement agreements

The questions and scenarios discussed:

• You are in mediation with an employee and are close to an exit deal. Can you put in a clause saying that the employee will not make information requests?
• You and a former employee have signed a full and final settlement agreement. However, it is six months on and they keep making privacy requests. Can you ignore these?
• In settlement negotiations, the employee requests that all records of the employment relationship problem are destroyed. Is this something you can agree to?
• Your agreement attaches a favourable written reference for an employee leaving under a cloud, and says the employer will give a verbal reference consistent with the written version. When a prospective employer asks if you’d employ them again, of if there were any problems, can you tell the truth as you see it?

Image credit: Sri Lankan garment workers via Wikimedia Commons (Creative Commons Licence).

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