Employee Engagement in the Modern Workplace

Photo Credit - Daria Shevtsova

Photo Credit – Daria Shevtsova

I regularly speak on the issues of employment and human rights law, but it turns out that lawyers really do end up with a warped view of the world. 

Yesterday I spoke on a panel of HR and people-management thought leaders: David D’Souza, Anna Petosa and Shaun Scott, moderated by Chris Taylor of Actionable. I was the only lawyer on the panel, which makes sense since lawyers are not typically people-management thought leaders.  In fact, I was surprised at how divergent some of our views were.  

The modern workplace requires innovation, agility and creativity when it comes to employee engagement, learning and development, how to accept and embrace the high turnover, gig economy, and how to stop generalizing generations.  I agree with this, and believe an organization will only grow and thrive when it can figure out how to engage all individuals, not just certain demographics or generations.  

My co-panelists rightly emphasised the benefit of individualized and customized learning and development, the value of more frequent, less formal feedback, and the role of peer mentoring and review.  These aspects of a forward-thinking workplace each help with attracting talent, retaining that talent and infusing the organization with knowledge and expertise.

So what do you do when an individual employment relationship goes south?  This is where the dour lawyer comes in.  All those informal meetings providing career development feedback are great.  Are they written down?  Are expectations mutual, or is the organization inadvertently trying to use these interactions as focus groups for long term workforce development?  If so, are these conversations and the soliciting of what will engage and satisfy an employee creating expectations to which the employee believes they are now entitled?  When ideas are raised, are they agreed to, or do both sides of the table understand this may be just a brainstorming session? Is bespoke learning and development modifying the contractual relationship by adding on new duties, augmenting a role, providing greater responsibility – but no increase in pay?

I’m fully aware that these questions sound cranky and old-school.  I’m also fully aware that the vast majority of time, the benefits of sophisticated and deeper employee engagement outweigh worries of a future and possibly remote legal battle.

But – there’s always a legal but – I so often see situations that have unnecessarily become nasty and expensive for the employer, largely because of broken telephone, misunderstood expectations and most people’s preference to avoid conflict and difficult conversations along the way.  

A large global organization can absorb the cost of a very difficult termination. For a small employer, it can be devastating financially, from a time resource perspective, and general employee morale.  

There is great value in much more frequent, informal feedback designed to develop careers, not to build a case against an employee.  When a termination becomes unavoidable, however, a bit of evidence is awfully handy.  

True, companies shouldn’t organize their whole system around the rogue employee, and rather, should build systems that are based on trust and on the assumption that employees want to thrive.

All I suggest is that in the midst of embracing the modern workforce, that leaders also document mutual expectations to ensure clarity, to make sure everyone is on the same page.  A friendly follow-up email, a check-in through the company IM platform, or at the least, a follow-up discussion that references the agreed upon expectations, goals and deliverables will let everyone have the best of both worlds – regular check-ins AND clarity.  

What is a natural corollary of bespoke and individual learning and development and flexible job roles, is that we all have bespoke and individual minds that view the world from our own individual lenses.  It remains important to have a method to sort out the disputes that do occasionally arise from all those individual perspectives, while focusing on the engagement and development of the workforce generally.

Ontario Employment Law Reform on Horizon

Photo Credit - Alex Robert

Photo Credit – Alex Robert

The Ontario government has been reviewing employment laws and labour standards in Ontario, the first such major review since the mid-1990s. A package of reforms is expected to be released next week.  “Changing Workplaces” has been a two-year review, headed by outside experts Michael Mitchell and John Murray.  The Ministry of Labour’s website contains the interim report (its only 312 pages, if you’re looking for a good read) and details on the review.

Although not yet available to the public, some Canadian news sources are starting to report on the likely contents, including the Toronto Star and CBC.

According to the media reports, the Changing Workplaces will address widespread reforms, including:

  • Increasing minimum wage, up to $15 an hour (up from the current $11.40)
  • Dealing with the increase in precarious and temporary worker jobs
  • Requiring the same pay rate for employees in part-time positions performing the same job
  • Protection for independent contractors doing the work of an employee
  • Increasing the minimum paid vacation days per year
  • Introducing paid sick leave
  • Expanding emergency leave to employees at companies with less than 50 workers
  • Eliminating some of the current exemptions to expand certain worker rights
  • Increasing private sector unionization support
  • Expanding successor rights for unions

Stay tuned for more updates as the reforms are released.

 

Getting Sued by an Ex-Employee

court

What is an employer to do when served with a Statement of Claim?  Here are the most common questions we get:

  • Is a response mandatory or can we ignore the claim?
  • How do we get rid of this ridiculous claim?
  • How much is this going to cost?

Is a Response Mandatory?

Yes, an employer must respond by serving and filing a Statement of Defence.  The failure to respond will mean the court may deem all of the facts in the Claim to be true, potentially leaving the employer liable for the damages claimed by the plaintiff without putting a defence on the table.   

A company representative can pick up the phone and try to settle the matter in exchange for the ex-employee dropping the claim, but that has about a 1% chance of success.  Typically, the plaintiff feels he or she has already made significant efforts to settle the matter. By the time you get that Statement of Claim, the Ship of Amicable Settlement has probably already sailed.

For incorporated employers, it’s time to lawyer up.  Under the Ontario Rules of Civil Procedure, a party to a proceeding in the superior court that is a corporation must be represented by a lawyer, except with leave of the court (Rule 15.01(2)).

How Do We Get Rid of this Ridiculous Claim?

Employment lawyers are busy for a reason – there are two sides to every story, and especially emotionally driven stories involving a person’s livelihood, ego and career identity.  The best way to get rid of a ridiculous claim is to vigorously defend.  There are no short cuts prior to filing a Statement of Defence.  

Once the pleadings close (ie the Claim, Defence and Reply(s) are filed), there are some options.  The rules next call for an exchange of Affidavits of Documents (ie the evidence upon which a party intends to rely), but we’re seeing some parties in the employment law context push to mediation quickly, prior to the exchange of documents or examinations.  This has various pros and cons and should be carefully considered before trying to skip or defer the document disclosure and/or examination steps.

Another option is to bring a motion for Summary Judgement, arguing that there is no genuine issue for trial.  If there are any material facts to resolve, the motion is unlikely to be granted, and most employers are better off focusing on a strong defence than getting sidetracked by expensive motions along the way.

How Much is this Going to Cost?

Once an employer is dragged into litigation, there are inevitable costs including legal fees, court filing fees and general diversion of internal company resources to gather, compile and share relevant evidence with counsel.  

There are a couple of things a client can do to help contain their own legal costs.  First, write down a detailed chronology cross-referenced to the main documents.  Lawyers read faster than they can listen to an individual’s story, and it will always be a useful tool for everyone to refer back to.

The evidence gathering stage is not only one of the most critical stages, but can be the most expensive, other than trial.  Between documents, email, texting, and enterprise chats, there is more often a challenge with too much evidence to sort through, rather than not enough. Organizing this evidence in a methodical, clearly indexed system before handing it over to the lawyers can save a company a ton of legal fees. Always have a detailed discussion upfront about how your lawyer wants the information, what software do they use, are they paperless, and what are the key issues around which the evidence should be gathered.  

A final tip to help control the costs is to ask for an estimate of the different stages upfront. If your lawyer says it’s impossible to predict, ask for ranges for each stage of litigation.  If they relentlessly respond with “It depends/each case is different/yours is a unicorn”, then be prepared for a unicorn of a bill at the end.

A trial is rarely the right outcome for anyone but the lawyers, but there are many stages along the way that provide for good opportunities to clarify facts and drill down to the core dispute between the parties, facilitating a settlement that wasn’t possible prior to that claim landing in your inbox.

Workplace Instant Messages: Information Overload

Photo Credit - Gilles Lambert

Photo Credit – Gilles Lambert

We all know that social media, electronic communications and the online world has changed how we interact socially. Who has the patience to leave a voice message for a friend about a restaurant meeting place, let alone listen to one? That’s what instant messaging (IM) is for. Short, efficient and no small talk.

Enterprise IM Platforms

But does this efficient communication work in the workplace? Enterprise IM platforms like Slack, Yammer, Skype for Business and GSuite’s Hangouts all attempt to provide a ring fence and level of security around workplace communications. The problem is, IMing lulls us all into informality and a casualness that can sometimes blur into overly personal banter.  

IM in the Virtual Workplace

The greater potential problem is the use of texting in virtual workplaces. The enterprise platforms are intended to not just make for efficient work-related communications, but also foster workplace culture, relationships and collegiality, a pressing need in virtual environments. For many staff, it is a very comfortable method to communicate, more closely mirroring personal modes of communication, and can become the virtual watercooler.  

While owners and managers want their remote employees to have relationships, to work together and bond as a team, if the main platform the employees are directed to is a Slack channel as watercooler, then there is a good chance those communications will contain plenty of non-work-related communications.

Expectations of Privacy

R v Cole and various cases since have told us that employees in Canada have an expectation of privacy in the workplace that can be diminished but not eliminated by workplace policies.  Meanwhile, Bills 132 and 168 have amended the Ontario Occupational Health and Safety Act to put proactive duties on employers to address harassment and violence in the workplace, conduct which now often starts with an online post.

How are employers to balance that expectation of privacy with legal duties to protect employees and address misconduct? Very carefully.  

We will increasingly see the newer generations of workers who do not remember life before the internet demand some form of privacy online. No employer would think they can automatically act on a conversation a supervisor overheard in a bar offsite, so why should comments online in a private space (e.g. a tightly controlled Facebook page with a modest number of friends) trigger immediate discipline?   

Power of Writing

The difference, of course, is that one is in writing and while there is a risk it could be taken out of context, there is little risk about whether the words were stated. It’s simply easier evidence for an employer to act on. If an anonymous printup of a nasty but after-hours online discussion on personal devices between 2 staff about a 3rd staff member is slid under HR’s door, it’s hard for HR to ignore this written evidence of staff misconduct.

Whether to act on it is another story, and it will go back to the Millhaven test on the extent to which the comment has a nexus to the workplace. At some point, however, I anticipate that the mere fact that comments occurred on a workplace issued device within an IM platform may stop being such a strong factor upon which the employer can rely to discipline.

Policies – with Employee Input?

Aside from the frequent suggestion to ensure that workplace policies address online conduct, it will be increasingly important to have open discussions with younger employees about what expectations of privacy online means to them. Younger employees are used to having their life exposed on the internet (often by their own parents on Facebook), but that doesn’t mean they don’t still want a choice about their own privacy, and to make decisions about what will be carved out as a personal versus professional IM platform.  

It remains the employer’s right to manage the workplace and protect its digital assets, but that managing and protecting will benefit from a more open dialogue with the new generation coming into the workplace about the role of IM and online conduct generally.

Carving out privacy online will continue to be an uphill battle, but is part of the ongoing evolution of a civilized society figuring out how to have privacy in such a connected world.

SpringLaw is here!

 

SpringLaw logo

I’m excited to announce the launch of SpringLaw!

We are a virtual law firm advising on workplace legal issues for employers and executives. Whether you are US in-house counsel with a Canadian operation, a Canadian company with employees and clients abroad, or entirely local, our experience with global employers and mobile executives enables a practical approach to forward-thinking employment law.

I’m looking forward to more alternative fee arrangements, flat-fees and staying relevant in the online economy.

To learn more:

Contract Enforceability

Must the Employee Sign Off Prior to the Start Date?

Photo Credit - Aaron Burden

Photo Credit – Aaron Burden

When an employee is terminated without cause and offered a package that is very modest, but otherwise compliant with the employment contract, a common first step for his or her lawyer will be to see if the contract can be set aside.  If the contract can be declared void, the employee can try to pursue the typically much greater common law damages.

There are several grounds upon which courts have set aside either the full contract or at the least, the termination provision, including:

  • the termination provision provides less than the minimum required in the Employment Standards Act (ESA), including if there is no reference to continuation of benefits at least through the ESA notice period
  • the contract references at-will language and/or is governed by a US jurisdiction and disentitles the employee to minimum standards
  • the contract was entered into after the first day of employment.

Two weeks ago, the Ontario Court of Appeal released Wood v Fred Deeley Imports Ltd (2017 ONCA 158), a decision that addresses a few of these enforceability issues.  This blog post will focus on the issue of signing the contract prior to the start date.

Pre-Wood

Prior to this case, it was commonly held that an employer MUST have the employee sign the employment contract prior to the first day of employment.  This is based on the contracts principle that consideration (a benefit) must flow between the parties in order to enter into a legally binding contract:  the employee provides services and the employer pays for them.  The terms of those services and compensation must be set out prior to the commencement of the contract.  

If a contract was introduced after the start date, the employer was required to provide fresh consideration, such as a signing bonus.  Mere continued employment is not sufficient consideration in Canada.

Contracts were set aside if the employer had the employee sign a contract after their start date, and the contract included an adverse term such as a termination provision that limited the employee’s default common law entitlements.  This was deemed to be changing the deal after the fact.

Post-Wood

The Wood v Deeley case rejected this argument based on the following facts:

  • Prior to the employee’s start date, the parties exchanged phone calls and emails that negotiated the terms of employment and that landed on a written agreement of terms via that email exchange;
  • The employee did not claim that she was seeing her contract for the first time on her start date, but rather, that it was not signed until after the start date; and
  • The contract did not contain any additional material terms she hadn’t already agreed on through email or on a telephone call a week prior to her start date.

The court concluded:

“[13]… The signing the day after she started working was no doubt a matter of administrative convenience.  Deeley did not unilaterally impose a new term of her employment.  Fresh consideration was therefore not required.”

This conclusion is a big deal.  The Ontario Court of Appeal has declared that there will be no more setting side of a contract on the technical detail of signing after the start date if the facts don’t otherwise support the need for fresh consideration.  

Take Away for Employers

This is good news to employers who often have logistical headaches getting the formal contract signed prior to the start date.  For example, an employee may not have a scanner or the means to conveniently return the signed contract prior to the start date.  

Most employees have email, and a very deliberate and careful exchange of email setting out the contract, preferable attaching a copy of the final version of the contract, and then getting email confirmation will likely suffice, pending the employee signing off when they arrive on the first day.

The lawyer in me would still feel better about getting signatures and final deals done well before the start date for mid- and senior- level employees where the termination exposure is much greater for the employer, but this does provide some welcomed flexibility for onboarding processes for front line employees.

Getting Fired Sucks!

Exit Sign

Today is the day.  The decision to terminate an employee has been made and now you have to deliver the news.  Before you step into that meeting, give some consideration to the impact this will have on your soon to be former employee.  Once the correct legal process has taken place, help guide the individual as to immediate next steps.  Remember to be kind and respectful.

Give them an opportunity to ask questions and recognize that it may take a bit of time for them to formulate any meaningful thoughts.  They are likely in a state of shock and probably not able to focus.

Do they have medical or financial hardships that you know of?

If you are aware of any medical issues such as on-going prescriptions or physiotherapy sessions, opt to extend company benefits a bit longer than the required minimum to help “ease the pain” (pun intended).  Consider building in a lump sum payment specifically earmarked for these needs.  At the very least, provide the individual with solid information on affordable medical insurance packages that can be purchased personally such as brochures or a comprehensive list of website links. This is not only a decent and compassionate thing to do, but a strategically smart thing to do to head off potential liabilities around benefits during the notice period (see my past post on this issue).

Do they need help with future job prospects?

Don’t just suggest that you will give them a reference or recommendation – put it in writing.  Provide them with a generic reference letter along with their severance package.  Most likely their pride or embarrassment may prevent them from asking for it down the road.

Do they have a strong support system at home?

Your employee may be too distraught to drive home after receiving news of termination.  You might suggest that they call a friend or family member to pick them up.  You could offer to send them home in a taxi instead.  It will be very difficult for them to simply pack up their personal belongings from their desk, accumulated over the years.  Perhaps you could suggest they return on a specified date, possibly after hours, in the near future to do so.  Or you might assign a friendly and compassionate co-worker to assist them.

Let them say goodbye.

Friendships that form in the workplace are often some of the strongest bonds.  Give the individual the option to say goodbye to their close friends in a private setting, while keeping it brief.  A hug and some reassurance may be just the thing they need to compose themselves before walking out the door.

Firing someone is always an unpleasant task.  Keep it kind.  When done right, dignity and mutual respect will remain intact.  (And may save employers the costs and hostility of an inflamed and emotionally charged termination battle.)

Employment Standards FYI – Rest Periods

This post is a quick primer on the subject of hours of work and rest periods for provincially regulated employees in Ontario.

punch clockThe Ontario Employment Standards Act (“ESA”) has several rules regarding hours of work for employees, including permitted length of shift, time off between shifts and time off during a work week. See my past blog posts on the intersecting areas of overtime and breaks.

The fine print:  As with the overtime and breaks rules, the rest period minimum requirements of the ESA are minimum requirements.  If your collective agreement, contract or workplace policy provides for greater entitlements, those will be the contractual entitlements that apply.  The below discussion sets out the minimum floor of entitlements, but these entitlements may be modified by contract if greater benefits directly related to the same subject matter are provided. There are many cases analyzing what is a greater benefit, and whether we are comparing apples and oranges of contract provisions, so, as always (cue the disclaimer), this blog post is a general discussion that may not apply to every situation or contract.

Daily Limit

For most employees (as always there are exceptions) the number of hours they can work during a day is 8. It is permissible for an employer to require that the employee work beyond this, but in this case the agreement must be in writing and the employee must be provided with an information sheet about hours of work and overtime pay before the agreement is made.

Weekly Limit

For most employees the weekly limit on hours of work is 48. The same work around as above is permitted, but, in addition, the employer must obtain approval from the Director of Employment Standards. While approval is pending, hours of work may exceed 48, up to 60 hours, so long as certain conditions are met during this decision period.

Rest Between Shifts

Generally employees must receive at least eight hours free from work between shifts. This is true whether shifts are “split shifts,” “on call shifts,” “back-to-back” shifts or ordinary daily shifts.

Rest between shifts is not required under two circumstances, if:

  1. The total time worked during both shifts does not exceed 13 hours. This is common in the restaurant industry where, for example, a server works a three hour lunch shift from 11:30 to 2:30 and then a three hour dinner shift from 4:00 to 7:00; or
  2. The employer and employee agree in writing to reduce or forego the eight-hour rest period.

Note that while an employee can agree to waive the rest between shifts requirement, they cannot waive the daily rest requirement, discussed next.

Daily Rest

Regardless of the length of their daily shift, or shifts, an employee must have at least eleven consecutive hours free from performing work in each “day.”

A day means a 24 hour period but does not have to correspond with a calendar day. For the purposes of this rule, an employee’s day starts at the beginning of their first shift and ends 24 hours later.

Weekly and Bi-Weekly Rest

In additional to all of the above, employers must provide employees with 24 consecutive hours free from work each week, or 48 hours free from work in every period of two consecutive work weeks.

If an employee does not receive 24 hours free from work in a week, the employee must receive 48 hours free from work the following week. This one can get a little bit tricky, so if this is a situation that arises in your organization, you may want consult a lawyer or take a look at the Ministry’s information on this topic, which can be accessed here.

Exceptional Circumstances

In ESA defined exceptional circumstances an employee can be required to work more than the daily and weekly limits, or during required rest periods. The ESA’s exceptional circumstances rules only apply when it is necessary to avoid serious interference with the ordinary working of the employer’s operations.

Examples are an emergency, a natural disaster, an accident or breakdown of machinery requiring urgent repair or an unforeseen event that would interrupt the continued delivery of essential public services or a continuous process.

Exceptional circumstances are not: filling rush orders, doing inventory, seasonal busy periods, or routine maintenance activities.

Exempt Employees

Rest periods and hours of work are a very technical area of the ESA, full of exceptions and variables.  These requirements do not apply to every class of employee.  For example, IT professionals and management employees do not receive these protections. Check out the Ministry of Labour’s user friendly tool for determining which employment rules apply to which jobs.  For the more complex or muddled situations in your workplace, give us a call.

Employment Standards FYI – Breaks

This post is a quick primer on hours of work and eating periods.

coffee mug

Photo Credit – Lisa’s Dad

The Ontario Employment Standards Act (“ESA”) requires that employees be given a meal break of at least 30 minutes within each five consecutive work hours. The ESA builds some flexibility into this, as the employer and the employee can agree to split the 30 minutes into two eating periods (provided they total 30 minutes) in each consecutive five hour period.

Generally meal breaks are unpaid and do not count towards the employee’s total hours of work for limits on hours of work or for overtime purposes. Even if a meal break is paid, the employee must still be free from work during the break.

Other than this 30 minute meal break, employers are not legally required to provide their employees with coffee or smoke breaks. If an employer does allow employees breaks beyond the meal break, whether or not the break will count towards working time depends on if the employee is expected to stay at the workplace during the break. If they are permitted to leave then it does not count towards working time.

Many collective agreements, employment contracts or workplace policies modify this minimum standard to provide longer or additional breaks.  Employers cannot contract below the ESA minimum standards, and are contractually bound to written promises made that provide more than ESA minimums.

As is the case with entitlement to overtime which I discussed last month, several categories of employees are exempt from the rules on eating period breaks.  For example IT professionals (as defined in the ESA), those employed in the entertainment production industry, and lawyers are exempt from certain ESA standards, including eating period breaks.  The Ministry of Labour has a user friendly tool for determining which employment rules apply to which jobs.

See the Ministry of Labour’s guide on eating periods for more information or contact us if you have any questions on how to apply the ESA standards to your workplace.

 

New AODA Requirements Effective January 1, 2017

As of January 1, 2017, several new requirements have taken effect under the disability law regime in Ontario.  The Integrated Accessibility Standards (IAS) made under the Accessibility of Ontarians with a Disability Act (AODA) sets out a comprehensive framework for business in Ontario to ensure the accessibility for employees and customers.

Since 2012, employers have had to establish policies and practices to accommodate employees with a disability.  As of this month, even the smallest employers will have to implement an additional round of the complex requirements set out in the IAS.

In addition to all AODA requirements already in place, effective January 1, 2017, Ontario workplaces must comply as follows:

  • 1-19 employees:
    • Make public information accessible when asked; and
    • Make public employment practices accessible, including how you hire, retain and provide career development opportunities to employees.  This would include adding a notification in job advertisements and on job postings.
  • 20-49 employees:
  • 50+ employees:
    • The above have been in place since at least January 1, 2016.  An additional requirement for large employers is to make new or redeveloped public spaces accessible, including parking lots, public outdoor paths of travel, service counters, fixed waiting lines and waiting areas with fixed seating; and
    • File an Accessibility Compliance Report by December 31, 2017.

The IAS requirements are specific and detailed.  The Ontario government provides useful summaries and tools on its Accessibility website, and we are here to help should your business have any questions about the layers of detail and best practices for implementation of the new round of compliance requirements.

 

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