Employment & Human Rights Law In Canada : Canada Employment Human Rights Lawyer : Lisa Stam, Law Firm : Labour Law in Toronto, Ontario

On December 9, 2009, Bill 168, the Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace) 2009 passed third reading in the Ontario legislature.  This new law will amend the Occupational Health and Safety Act by introducing new duties on employers with respect to workplace violence and workplace harassment.  It is anticipated that this bill will be proclaimed shortly, and is scheduled to come into effect six months after that.

Companies therefore have until summer 2010 to fall into compliance with the new law. 

In a nutshell, the bill requires employers to be far more assertive when dealing with workplace violence and harassment.  General information can be found in these government backgrounders:  Protecting People at Work and New Protections.

Highlights of the bill include the following requirements:

• Develop and implement a policy that specifically deals with workplace violence and harassment
• Develop a program to inform employees about the policy and to implement that policy on an on-going basis
• Take reasonable precautions to protect workers from domestic violence that occurs in the workplace
• Conduct workplace assessments on the risks of workplace violence, and to report back to the health and safety committee or representative, or if neither exist, directly to the employees
• Identify risks of workplace violence from a person with a history of violent behaviour and determine what information should be disclosed to protect the safety of workers and
• Allow workers will have the right to refuse to work if they believe that they are at risk of workplace violence.

The bill introduces some novel legal obligations, and I will provide updates on any interesting initiatives and guidelines that I come across over the next couple of months.

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Should an employer friend his or her employees on Facebook? Connect on LinkedIn, follow on Twitter or read an employee’s blog? There is no consensus and employers continue to grapple with the role of social media in the workplace – and the role employers should take within these vehicles of communication. 

The more difficult question is not whether to friend, follow or read, but whether an employer can then rely on that information as evidence when hiring, disciplining or firing an employee. Does social media produce reliable legal evidence?

In the British Columbia Court of Appeal case, Bishop v. Minichiello, released last week, the court upheld the lower court decision that ordered production of metadata from a plaintiff’s computer regarding his usage of Facebook. The court required the plaintiff to forward a copy of his computer hard drive to a neutral third party who would compile data on the narrow issue of the amount of time the plaintiff was spending on Facebook from 11pm to 5am. This was directly relevant to the plaintiff’s personal injury claim and to alleged fatigue during the day. The court permitted the forensic computer search on narrow grounds. While not an employment law case, the case does speak to how a court would rely on Facebook evidence.

Recent employment specific examples in the case law include:

• Making disparaging comments about the company or the boss online: this is usually valid grounds for some sort of discipline, particularly if a fundamental breach of trust results from particularly nasty comments.
•  Discovering unfavourable information online about a potential candidate and choosing not to hire him or her: this has human rights violation written all over it if the decision to not hire can be connected to the candidate’s age, disability, pregnancy, or any other ground protected by the Human Rights Code.
• Firing someone because of comments posted on someone else’s Facebook Wall: talk about six degrees of hearsay separation! (Alberta Distillers Ltd. v. United Food and Commercial Workers, Local 1118 (Whiteside Grievance) [2009] A.G.A.A. No. 46)
• Firing an employee because of information on their Facebook page if the employee claims the entire Facebook page is a fake page created by his ex-girlfriend: questions arise of proving the evidence found in Facebook.
•  Whether a Status Update on Facebook could violate the confidentiality terms of a settlement agreement: apparently not, if the status is vague enough.

While American employers tend to have more leeway with disciplining employees for information gathered online, Canadian employers must continue to be cautious of the human rights regimes, privacy laws and employment law culture that afford employees more protection of their personal information than our neighbours to the south.

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This week, I had an interesting question from a client: is an employer required to apply for the Work-Share Program? 

This program was introduced by the federal government last winter and it allows employees who are put on a temporary lay-off to apply for EI while still working at least 60% of their regular hours.  It is a product of the tough times businesses have faced in the 2008-2009 recession. 

While the program is an obvious a benefit to employees, for some employers, the paperwork, the requirements to lay out the recovery plan and the negotiation with employees to get consent can be a lot of extra work for what may amount to a relatively short temporary lay-off.

While there may not be any express legal requirement to apply, the costs of employee morale and the potential loss of skilled labour may be too high.  For many, it is a useful program to keep everyone happy while we ride out this recession.

Useful information on the program:

• general backgrounder
• Applicant's Guide
• Application Forms 5100 and 5101

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