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employment

Workplace surveillance: Is your boss allowed to watch you?

Key Takeaway

Workplace surveillance in New Zealand is primarily governed by good faith employment obligations and privacy principles. Employers must generally inform employees about monitoring, ensure a legitimate business purpose, and collect information fairly and lawfully. Employees have rights to be informed, access, and correct their personal information collected through surveillance.

Workplace Surveillance in New Zealand: What the Law Says

In New Zealand, the ability of an employer to monitor or 'watch' employees in the workplace involves a balance between the employer's legitimate business interests and the employee's right to privacy. The legal framework governing workplace surveillance is primarily found in the Employment Relations Act 2000 and the Privacy Act 2020, with limited application of the Crimes Act 1961 for certain types of interception.

The Legal Framework

Good Faith Obligations

The Employment Relations Act 2000 establishes a requirement for all parties in an employment relationship—both employers and employees—to deal with each other in good faith [Source: Employment Relations Act 2000, s 4]. This obligation includes being open and communicative, which extends to workplace surveillance practices. Employers are generally expected to be transparent with their employees about any monitoring activities.

Privacy Principles

The Privacy Act 2020 sets out 13 Information Privacy Principles (IPPs) that govern how agencies collect, hold, use, and disclose personal information. An 'agency' refers to any person or organisation, including employers, who holds personal information [Source: Privacy Act 2020, s 7]. 'Personal information' is defined as information about an identifiable individual [Source: Privacy Act 2020, s 7]. Several IPPs are particularly relevant to workplace surveillance:

  • Purpose of Collection (IPP 1): Personal information collected through surveillance must be for a lawful purpose connected with the employer's functions and be necessary for that purpose [Source: Privacy Act 2020, s 22, IPP 1].
  • Source of Personal Information (IPP 2): Information should generally be collected directly from the individual concerned. While there are exceptions, indirect collection for surveillance purposes usually requires strong justification [Source: Privacy Act 2020, s 22, IPP 2].
  • Collection of Personal Information (IPP 3): Before or at the time of collection, the employer must take reasonable steps to ensure the employee is aware that the information is being collected, the purpose of collection, the intended recipients, and their rights to access and correct that information [Source: Privacy Act 2020, s 22, IPP 3].
  • Manner of Collection (IPP 4): Personal information must not be collected by unlawful, unfair, or intrusive means [Source: Privacy Act 2020, s 22, IPP 4]. This principle is crucial for assessing the proportionality and reasonableness of surveillance methods.
  • Storage and Security (IPP 5): Personal information collected must be protected by reasonable security safeguards against loss, unauthorised access, or misuse [Source: Privacy Act 2020, s 22, IPP 5].
  • Access to Personal Information (IPP 6): Individuals have the right to request access to personal information an agency holds about them [Source: Privacy Act 2020, s 22, IPP 6].
  • Correction of Personal Information (IPP 7): Individuals have the right to request correction of their personal information if they believe it is inaccurate [Source: Privacy Act 2020, s 22, IPP 7].
  • Accuracy of Information (IPP 8): An agency must ensure that personal information is accurate, up-to-date, complete, and not misleading before it is used [Source: Privacy Act 2020, s 22, IPP 8].
  • Limits on Use (IPP 10): Personal information collected for one purpose should not be used for another purpose unless a specific exception applies (e.g., with the individual's consent, or if it is necessary to prevent a serious threat to life or health) [Source: Privacy Act 2020, s 22, IPP 10].
  • Limits on Disclosure (IPP 11): Personal information should not be disclosed to third parties unless an exception applies (e.g., with the individual's consent, or if legally required) [Source: Privacy Act 2020, s 22, IPP 11].

Intercepting Communications

The Crimes Act 1961 addresses the interception of private communications. Section 216B makes it an offence to intentionally intercept a private communication by means of an interception device [Source: Crimes Act 1961, s 216B]. Section 216C makes it an offence to install a tracking device on an item or person without authority [Source: Crimes Act 1961, s 216C]. While these provisions primarily apply to serious criminal matters and typically require a warrant for law enforcement, they can be relevant if an employer unlawfully intercepts an employee's genuinely private communications or covertly tracks personal vehicles or belongings without knowledge or consent.

Types of Workplace Surveillance and Key Considerations

Different forms of surveillance have varying levels of intrusiveness and legal considerations:

  • Video Surveillance (CCTV): Generally permissible if clearly communicated to employees, justified by a legitimate business purpose (e.g., security, health and safety, theft prevention), and not used in private areas like changing rooms or toilets. The cameras should be visible, and signage should inform individuals that recording is taking place.
  • Computer and Digital Monitoring: This includes monitoring email, internet usage, and computer activity on company devices and networks. It is generally permissible provided employees are informed of the policy. Employees typically have a lower expectation of privacy when using employer-provided equipment and networks, especially if policies clearly state that usage may be monitored.
  • Location Tracking (GPS): Tracking company vehicles or employer-provided devices (e.g., phones, tablets) for legitimate business purposes (e.g., fleet management, safety) is generally permissible if employees are informed and it is proportionate to the purpose. Covert tracking of personal vehicles or devices without consent would likely breach privacy principles and potentially the Crimes Act 1961.
  • Audio Recording and Listening Devices: This is generally considered highly intrusive. Covert audio recording of conversations is very difficult to justify and could breach the Privacy Act 2020 and potentially the Crimes Act 1961 if it involves the interception of a private communication without consent or lawful authority [Source: Crimes Act 1961, s 216B]. Even overt audio recording typically requires explicit consent, particularly if it involves recording conversations where employees have a reasonable expectation of privacy.

Employer Obligations

Employers considering or implementing workplace surveillance must meet several obligations:

  • Transparency: Inform employees about the nature, extent, and purpose of any surveillance activities [Source: Privacy Act 2020, s 22, IPP 3]. This should ideally be done through clear, written policies.
  • Legitimate Purpose: Ensure that any surveillance serves a genuine and lawful business purpose, such as ensuring health and safety, preventing theft, managing performance, or protecting company assets [Source: Privacy Act 2020, s 22, IPP 1].
  • Proportionality: The level and intrusiveness of surveillance must be proportionate to the legitimate purpose. Highly intrusive surveillance requires stronger justification [Source: Privacy Act 2020, s 22, IPP 4].
  • Policy Development: Develop clear, comprehensive, and accessible written policies on workplace surveillance, internet usage, email, and device usage. These policies should be communicated to all employees and ideally discussed during the employment agreement process.
  • Data Security and Retention: Implement robust measures to secure any personal information collected through surveillance and establish clear policies for how long the data will be retained [Source: Privacy Act 2020, s 22, IPP 5].

Employee Rights

Employees in New Zealand have specific rights regarding workplace surveillance:

  • Right to be Informed: Employees have the right to know if, how, and why they are being monitored [Source: Privacy Act 2020, s 22, IPP 3].
  • Right to Access Information: Employees can request access to their personal information collected through surveillance [Source: Privacy Act 2020, s 22, IPP 6].
  • Right to Correct Information: If personal information collected is inaccurate, employees can request its correction [Source: Privacy Act 2020, s 22, IPP 7].
  • Right to Complain: If an employee believes their privacy rights have been breached, they can make a complaint to the Privacy Commissioner [Source: Privacy Act 2020, s 67].

Covert Surveillance

Covert (secret) surveillance is generally not permissible in New Zealand workplaces due to the good faith obligations and the Privacy Act's principles of openness and fairness [Source: Employment Relations Act 2000, s 4; Privacy Act 2020, s 22, IPP 3 & 4]. It may only be considered in extremely limited circumstances where there is a strong justification, such as serious suspected criminal activity or gross misconduct, where all other avenues of investigation have been exhausted, and the information cannot reasonably be obtained by other means. Even then, its use and admissibility in employment proceedings can be highly contentious and subject to scrutiny by the Employment Relations Authority or Employment Court.

When to Seek Independent Legal Advice

Understanding the complexities of workplace surveillance requires careful consideration of individual circumstances. For specific guidance on employer obligations, employee rights regarding surveillance, or if there is a concern about a potential breach of privacy, it is advisable to seek independent legal advice. The Privacy Commissioner provides guidance on privacy matters, and individuals can also contact Community Law Centres for free legal advice.

Key Resources