National Hockey League coach Mike Babcock thought he was just trying to get to know his players better, but experts say he may have crossed a line that’s sometimes hard to see.
After joining the Columbus Blue Jackets, Babcock was called out this week for allegedly asking some players to show family photos off their phones, raising questions of privacy and misusing his position as a head coach. The NHL Players’ Association says its executive director and assistant executive director are investigating reports of Babcock invading players’ privacy.
Experts say it’s important for employers to remember that positional power is a real thing. “From a positional power perspective, because it is someone in a higher position asking you a question, you worry about your job security or how you’re going to be treated at work,” says Muneeza Sheikh, an employment lawyer with Levitt Sheikh LLP. “You might be inclined to say, ‘Sure, go ahead and look at my phone,’ even though you’re completely uncomfortable with it.”
Sheikh says employees face a genuine dilemma when they find themselves responding to requests made by superiors in a way they normally wouldn’t, perhaps for fear of being reprimanded. She adds positional power plays a huge role in all conversations in the workplace, whether or not it’s personal.
Even if the employer’s goal is to create a positive working environment, they need to make sure they don’t venture into questions about personal lives or relationships, says Michael Walter, a partner at Walter Law Group. “It’s always a question of context.”
There’s a delicate balance in human interactions between managers and workers, he says, noting employers might feel they’re being friendly and not realize they’re making their subordinates uncomfortable.
“Employers have to be very careful and cautious to ensure what they’re asking of their employees doesn’t go beyond what is appropriate for the circumstances,” says Walter. “If an employee is not willing to share things about their personal lives, it is not really something that an employer should press about.”
When it comes to devices, employees still retain some level of privacy and may refuse to show content off their personal phones. But Sheikh says employers have a right to monitor devices that are being used for both personal and professional needs by their employees. “That doesn’t fall into the zone of private photos, even though you have a device owned by your employer.”
However, there aren’t many provisions to sue an employer for invasion of privacy in many provinces of Canada. “Privacy rights are not nearly as extensive as people assume,” says Stuart Rudner, founder and managing partner at Stuart Rudner Professional Corp.
He notes there’s no current legislation preventing a boss from making a similar request for personal photos or phone access. “First of all [employees may be] scared to refuse, but if they do refuse, they might lose their job. In many cases, [employees] might be entitled to financial compensation, but they usually won’t get their job back.”
Rudner says employees don’t have job security in Canada unless they’re unionized. From the company’s point of view, he recommends keeping questions simple in day-to-day interactions. “The less you know [about your employees], the better.”
He also says specific questions that could disclose someone’s age, family status, religion, disability or sexual orientation would trigger human rights protection. However, he adds there’s nothing unlawful about asking generally how an employee is doing.
Remote work has also changed the dynamics of what is and isn’t appropriate to share in a professional environment. “There has been a lot more blurring, especially with Zoom or video calls [where] we often see people’s pets and children and partners and even photos of them in the background,” says Rudner. “But you still can’t discriminate against them on grounds that are protected by human rights legislation.”