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.

 

2017 Resolutions and Fresh Starts

Photo Credit - Eric Rothermel

Photo Credit – Eric Rothermel

January is a month of resolutions, fresh starts, and goals.  It’s also a good time to run away from 2016 and the upsets and surprises the year rolled out.

Here are 3 lessons that 2016 taught us as we all dig in to a new year in the workplace:

#1 – Surprise High Profile Departures

On Friday, June 24, we woke up to the shocking news that the people of the UK voted in favour of leaving the European Union.  While it will take some time to feel the depth of this dramatic economic and political change, it left everyone stunned and bewildered about what to do next.

When a high profile employee suddenly departs your workplace, it can leave a difficult gap of productivity, decision-making processes, sales relationships and knowledge.  It can also generate fear of lost business and profits.  If handled well, however, it can also produce a tremendous opportunity to take a fresh look at how things are done.

The Take-Aways:

  • Stay calm and review the departing employee’s employment contract. What are their resignation obligations, if any?  Are there any non-competes or non-solicitations to consider?  Is there any equity to sort through?  Any benefits to end?
  • Review what digital and physical assets the employee may have that the company needs to immediately protect? Pull in IT immediately to freeze data and monitor data issues.
  • In the storm, do not head for the nearest port. Rush to protect assets and business, but do not rush to replace the employee, promote people in a panic or make any big HR decisions. Many of my clients have been surprised to see how others will quickly rise to the occasion and pitch in – moments of intense pressure can help you identify who should next rise to the top.

#2 – Popular but Disruptive Employees

On November 8, Donald Trump surprised everyone by winning the US presidential election.  He is a polarizing and controversial figure, but it remains a fact that many millions of people voted for him and/or his party.  He is about to assume the highest office in the US and will wield power for the next four years as a result of enough Americans supporting him.

The Take-Aways:

  • Every workplace is full of politics and a wide range of personalities, perspectives and interpretation of entitlements. Most want to embrace that diversity, but what to do when the top decision makers are causing a disruption?  Obviously many disruptions are great – innovation, decisive leadership, and risk-taking are all essential ingredients to success.
  • However, even the CEO is an employee and subject to the basic rules, policies and practices of the workplace. While there is typically nothing you can do if the owner is a problem, a Board of Directors can step in and deal with the CEO, and the CEO can deal with all other layers of senior management.
  • Balancing popularity with effectiveness can trigger some of the most difficult decisions in the workplace. Clear job descriptions, KPIs, targets and objectives all help make the assessment an objective process, to cut through the popularity context.
  • I frequently see clients struggling with that highly profitable manager is who a terrible manager. Over time, the impact on effective processes and getting the most out of all the other employees who are now distracted by poor management does impact the bottom line.  Employees are typically motivated more by inspiring leadership than fear of reprisals or unpredictable behaviour.

#3 – Bereavement Leaves

2016 was a year full of high profile deaths.  While your workplace may not be full of one-of-a-kind music legends or celebrities, each loss will nevertheless have a significant impact on your workplace.

The Take-Aways:

  • Statutory bereavement leaves vary across the country, ranging from 3 to 5 days. Ontario provides for up to 10 unpaid days of emergency leave, but only for those workplaces with at least 50 employees.
  • In addition, most collective agreements, and some individual employment contracts or workplace policies allow for a few days bereavement, typically in the 3-5 day range. This would be inclusive of any statutory entitlement.
  • Even if not in writing, most workplaces will allow for some amount of time for an employee to grieve the loss of a loved one. To refuse to do so will no doubt lead to a very unproductive, distracted and further upset employee.
  • Having said that, an employer is not obligated to provide an extensive period of time, particularly if there was minimal travel involved to attend to services. Having a specific number set out in writing will assist with clear timelines and processes to determine how to handle requests, including whether to ask for a medical note should the employee indicate that they continue to suffer with depression, lost sleep and other symptoms related to profound loss.

2016 was a year full of upsets, departures and uncertainty on the world stage.  2017 will no doubt be as memorable, but January is a great time for fresh starts and looking forward.

#Clawbies2016 Nominations

clawbies-socialIt’s that time of year to vote for your favourite law blog.  In case you haven’t heard of illustrious awards such as the Oscars, Junos or Clawbies, the Clawbies are the annual awards for Canadian legal blogs in a variety of areas, including practitioner, firm or legal publisher.  To vote, you tweet out your favourites and the Wizards of Legal Blog Oz will make their determinations at the end of December.

My 2016 nominations for individual practitioners this year are:

  1. Doug Macleod: He is a regular blogger with practical wisdom in the employment law space, who has consistently put out content that is interesting, concise and relevant.
  2. Michael Spratt:  Michael is a criminal lawyer in Ottawa that never pulls any punches.  He has the courage to put his full range of opinions on paper and fight for access to criminal justice in a vigorous, compelling manner, while somehow mixing in humour with it all.  He also produces The Docket Podcast, interviewing a great list of Canadian who’s who.
  3. Sean Bawden: Sean’s blog is a great go-to place for employment law updates and analysis. He’s an engaging writer that always seems on top of the latest legal developments.

My nomination for a legal publisher is:

First Reference:  As a Canadian workplace law resource, you can’t beat First Reference.  They are a collaborate, community builder of many employment lawyers in this practice area, providing a daily source of great information for employment lawyers, HR professionals and the public.  (As a disclaimer, I am a contributor and public fan, so have an obvious but well-founded and legitimate bias.)

 

Employment Standards FYI – Overtime

Photo credit: Linda Xu

Photo credit: Linda Xu

Just in time for the holidays, here is a quick primer on overtime entitlements in Ontario.

The Ontario Employment Standards Act (“ESA”) sets out a maximum number of hours an employee can work before they are entitled to overtime pay. The general rule is that employees must be paid 1½ times their regular rate (i.e. “time and a half”) for each hour over and above 44 hours per week. If your employees are salaried, as opposed to hourly, overtime is calculated by dividing their weekly salary by 44 to arrive at their hourly rate of pay.

If your workplace is unionized, the collective agreement may vary these thresholds, but cannot go below the minimums standards in the ESA overall.

The overtime threshold varies from province to province in Canada, and will depend on whether the provincial or federal rules apply (most employees in Canada are provincially regulated).  The range is 40 to 48 hours, calculated by the week in some provinces, or by an 8-hour day threshold in other provinces.

In Ontario, overtime is calculated on a weekly basis for most workplaces.  Some workplaces, however, may have a written averaging agreement in place, or the employer may have sought Ministry approval under section 22.1 of the ESA, which allows for some variation to the default rule.

Time in lieu of overtime is permitted if the employee and the employer have agreed and the time off is taken within three to twelve months of it being earned. Time in lieu is calculated the same way as overtime, one and one-half hours of paid time off work for each hour of overtime worked.

Not all categories of employees are entitled to overtime (or time in lieu).  For example, management employees and IT professionals (as defined in the ESA) are exempt from overtime and several other provisions of the ESA.  The Ministry of Labour has a user friendly tool for determining which employment rules apply to which jobs.

The Ministry guide on overtime is a helpful tool for general overtime information, including how overtime intersects with public holiday pay.  For more complex application of the overtime rules for your employees, feel free to reach out to us with your questions.

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