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

Employees have a reasonable expectation of privacy in the personal information on their workplace computers, even if that expectation can be significantly diminished with effective workplace policies and practices.  However, whether such reasonable expectations extend to workplace computer evidence admitted in a criminal proceeding was addressed in last Friday’s highly anticipated Supreme Court of Canada decision of R v Cole. 

In that case, a school board computer technician ran a routine system maintenance check on the computer network and he discovered photographs of a naked student on a teacher’s laptop.  The technician advised the school principal.  On the principal’s instructions, the technician copied the photos to a disc, obtained the computer and copied the temporary internet files onto a second disc.  The laptop and both discs were then handed over to the police.

Workplace Computer Evidence Wrongly Excluded at Criminal Trial

The police reviewed the evidence, and charged Mr. Cole with possession of child pornography and unauthorized use of a computer.  At trial, all of the evidence was thrown out, because the police had obtained the laptop and discs without a search warrant.  At the heart of this case is whether an employee has any expectation of privacy of information on a workplace computer, which may attract Charter rights to prevent such evidence from being gathered and used against the employee in a legal proceeding.

The Supreme Court of Canada held that while Mr. Cole’s Charter right to be free from unreasonable state search and seizure had been breached, the admission of that evidence was appropriate in the circumstance and would not bring the administration of justice into disrepute.

Accordingly, the Court ordered a new trial, ordering that the evidence unlawfully obtained by the police should not be excluded in this case.

Reasonable Expectations of Privacy

Although this is a criminal law case, there are a number of employment law aspects to the matter. 

First, while Canadians may reasonably expect privacy in the information found on our home computers, this decision reiterates the principle that information on work-issued computers does attract some reasonable expectation of privacy.  Computers typically contain information that is “meaningful, intimate, and touching on the user’s biographical core”, attracting a protection of privacy. 

Second, while workplace policies and practices may diminish an employee’s expectation of privacy, such “operational realities” around workplace policies and practices do not remove the expectation entirely.  Context will matter.

Third, in this case, the employer was entitled to rely on the evidence it obtained through a standard, workplace maintenance check to discipline the employee as appropriate through its internal procedures.  The school board was not, however, entitled to waive the employee’s Charter rights by handing over such evidence to the police, even if the employer had originally lawfully obtained such evidence for own human resource purposes.  Only the employee could consent to disclosing the private information to the state.

Take-Away for Employers

Workplace policies are a critical tool for employers to enforce workplace standards, but they cannot be left to gather dust on an electronic shelf.  In this case, the Court relied on several facts to lessen the employee’s expectation of privacy in the workplace:

• the workplace policy was up to date, asserting ownership of both the hardware and the data;
• the employer annually reminded the employees that the students’ computer use policy also applied to the employees; and
• the student policy specifically provided that email could be monitored and that users should not assume that any files stored on the network servers or hard drives of individual employer-issued computers will be private.

All of these factors diminished Mr. Cole’s expectation of privacy, but did not eliminate it.  He was entitled to be free from unreasonable state search and seizure of such personal information. 

Employers should not only continue to ensure their computer use, privacy, social media and electronic data policies are up to date, but it is essential that employees are informed and educated about the meaning and impact of such workplace policies so that employers can more effectively rely on such policies and practices. 

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The Ontario Human Rights Code and the Accessibility for Ontarians with a Disability set out the rights and obligations regarding employees, but what about volunteers?  A reader of this blog (thanks Angie!) has asked about the application of these laws when recruiting volunteers.  Human rights codes across Canada work largely the same on this issue, but since Angie is from Ontario, I’ll focus on this province.  

Volunteers are not “Employees”

First of all, volunteers are not “employees”.  The Ontario Employment Standards Act defines “employee” as a person who performs work or services for an employer “for wages”.  As long as the person is receiving wages, they are not a volunteer and are therefore entitled to minimum wage, paid holidays and all of the other minimum standards set out in the Employment Standards Act. 

It is possible to reward a volunteer, but that reward must be purely discretionary and not tied to performance.  In other words, you can provide the volunteer with a generous gift basket on your annual volunteer recognition day, without the risk of creating an employment relationship.  You cannot, however, pay the volunteer $10 for each new donor to your organization that he or she signs up on the street corner.  That’s a commission and tied to performance, indicating an employment relationship. 

But “Employment” Does Include Volunteers under the Human Rights Code

While the Employment Standards Act clearly does not apply to volunteers, it is likely that the Human Rights Code does.  The Human Rights Code does not specifically refer to volunteers, but it also does not limit “employment” to only paid positions. 

Rather, under the Human Rights Code, employment is interpreted broadly and will generally include volunteers for the purposes of applying the Human Rights Code to the workplace.  See the Ontario Human Rights Commission’s website for general guidance (while the Human Rights Tribunal is not bound by the OHRC, the OHRC remains a persuasive voice in the human rights regime in Ontario).

Volunteer Canada has published a useful guide for organizations that engage volunteers.  The Canadian Code for Volunteer Involvement sets out guidelines for policies and procedures for volunteers, indicating that such policies and procedures should be consistent with human rights legislation (see page 13 of the guide). 

Recruiting Employees/Volunteers

When recruiting employees (which will include volunteers under the Human Rights Code), the law is clear that you cannot discriminate against an individual based on any of the grounds set out in the Human Rights Code:

Employment

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

For example, it is discrimination if you refuse to hire someone because they are disabled, are pregnant, are too old, are members of a lesbian social club, are members of a particular religious organization, etc. 

The Human Rights Code further specifies that the recruitment process itself cannot be discriminatory:

Employment

23. (1) The right under section 5 to equal treatment with respect to employment is infringed where an invitation to apply for employment or an advertisement in connection with employment is published or displayed that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination.

Application for employment

(2) The right under section 5 to equal treatment with respect to employment is infringed where a form of application for employment is used or a written or oral inquiry is made of an applicant that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination.

Questions at interview

(3) Nothing in subsection (2) precludes the asking of questions at a personal employment interview concerning a prohibited ground of discrimination where discrimination on such ground is permitted under this Act.

Employment agencies

(4) The right under section 5 to equal treatment with respect to employment is infringed where an employment agency discriminates against a person because of a prohibited ground of discrimination in receiving, classifying, disposing of or otherwise acting upon applications for its services or in referring an applicant or applicants to an employer or agent of an employer.

Special Interest Organizations

It is clear an organization cannot discriminate – but can an organization prefer volunteers that reflect the membership or purpose of the organization?  Many volunteers are engaged by special interest organizations, which by definition may exist to promote specific religious beliefs, gender issues, sexual orientation or cultural backgrounds, etc. 

Can organizations recruit to favour and/or exclude volunteers based these otherwise protected grounds? 

To some extent, yes, they can.  The Human Rights Code sets out special rules or exemptions in the area of recruitment for “special interest organizations” as follows:

Special interest organizations

18. The rights under Part I [the general section on Freedom from Discrimination] to equal treatment with respect to services and facilities, with or without accommodation, are not infringed where membership or participation in a religious, philanthropic, educational, fraternal or social institution or organization that is primarily engaged in serving the interests of persons identified by a prohibited ground of discrimination is restricted to persons who are similarly identified.

For example, a woman’s shelter is not discriminating against men if it has a policy to recruit only women volunteers.  A church club for teenagers can require members to adhere to the religious practices of that church.  A Dutch social organization can require board members to have a Dutch background.

This exemption is complicated.  There will be limits to this section, and we most often see the limits determined when you have competing human rights issues.  For example, can a religious organization refuse to recruit a transgendered volunteer?  A full review of competing human rights would require a separate blog post, but suffice it to say that an organization can prefer volunteers that reflect the purpose or mandate of the organization, so long as the organization is not discriminating against the volunteer applying for the position (which I know is easier said than done in many situations).  

Volunteers and AODA

The other piece to the human rights regime in Ontario is the Accessibility for Ontarians with a Disability Act, 2005.  Both the Customer Service Standard and the Integrated Accessibility Standard under the Accessibility for Ontarians with a Disability Act, 2005 specifically require organizations to train both employees and volunteers about the provision of goods and service to persons with a disability and about the accessibility standards set out in the legislation.

The purpose of AODA is to achieve accessibility for Ontarians with a disability.  The standards willbe read broadly and interpreted to achieve the highest standard available under AODA and the Human Rights Code.  Any ambiguity around the application to AODA to a volunteer will likely be read widely to capture volunteers and ensure all individuals engaged at an organization are bound by the AODA standards.

Take Aways

The world of volunteers is outside and yet part of the employment context.  It is not always crystal clear what role a volunteer has within an organization, but given the quasi-constitutional status of human rights legislation in Canada, employers and organization that engage volunteers would be most prudent to assume the full range of discrimination law applies to their volunteers. 

This includes ensuring your volunteers are held accountable for any discriminatory conduct they engage in while representing the organization.  As always, setting out expectations in a policy for all members of the organization - whether paid or unpaid – will provide clarity around human rights issues.

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I doubt there is anything more dry than reading a blog post about mandatory workplace government posters, but it’s a mandatory requirement that comes with fines and cranky inspectors if you don’t comply with the requirements. And I will try to make this a short post to minimize the pain.

New OHSA Requirement

As of yesterday, all workplaces in Ontario must post a new mandatory government poster called, “Health & Safety at Work – Prevention Starts Here”. The poster explains the key rights and responsibilities of employers and employees, and sets out how to obtain additional health and safety information and how to contact a Ministry of Labour inspector.

Other Posting Requirements

While employers have always had to post a copy of the Employment Standards Poster, “What You Should Know” and the Occupational Health and Safety Act, this new requirement adds more to your collection of documents that must be posted in a conspicuous location (e.g. cafeteria or lunch room) in all Ontario workplaces.

The specific posting requirements are primarily under the follow acts:

• Employment Standards Act (ESA);
• Workplace Safety and Insurance Act (WSIA);
• Occupational Health and Safety Act (OHSA); and
• a key regulation under OHSA, Workplace Hazardous Materials Information System (WHMIS).

A full summary of workplace posting, training and policy requirements is set out on the Ministry of Labour’s website.

Although not likely on the top of anyone’s fun list, this may be a good moment to do an audit of your workplace posters, training and policies to make sure your workplace is meeting the latest requirements.

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Working from home, telecommuting, flexible hours, – whatever you call it, it is part of the Gen Y paradigm of focusing on work product rather than work process. In an information economy where so many workers are producing electronic written and graphic content rather than a physical product, many employees are pushing to work where they are the most comfortable, happy, and hopefully, the most productive – at home. 

Having said that, while there is a general perception that the Gen-Y workforce will continue to push for change in flexibility, the push to telecommute may equally come from your older workforce who have settled into the workplace hierarchy, already have a good relationship with the boss and no longer need face-time, have the space in their larger suburban home, and have a busy schedule with family and community outside of work. 

For example, in a study by Regis called “Meeting the Future of Work”, the author suggests that despite their tech savvy, mobile and socially connected instincts, many Gen-Yers still recognize a need to be in the office, near the work flow and near the boss:

We found that younger staff expressed 15% to 20% less desire than their older colleagues to choose their time and place to work. In fact, they actively seek out every opportunity to be in the office in the closest proximity to their boss.We found a direct, almost linear correlation between age and appetite for flexible working – from over 70% enthusiasm among older staff declining to under 40% with Generation Y staff.

Perhaps, as well, your typical 25 year old employee’s 500 square-foot Toronto condo doesn’t quite live up to the quest for freedom and space they envisioned. In other words, the interest in telecommuting will likely cut across all generations in the workforce. 

Whether the push is from your Silocon-wannabes, or the sandwhich-generation juggling small kids and elderly parents, here are some of the key legal issues employers need to think about when offering telecommuting to employees:

1. Policies:

As with most areas of the employment law universe, the legal backdrop should be a policy that sets out employer expectations around issues such as hours of work per day or week, preserving confidential information, home office insurance and liability issues, ownership of equipment and content, reporting structures, how to monitor work product and deadlines, any obligations to attend on-site meetings, and reserving a general right to pull the employee back into the office if necessary.

2. Discrimination:

Determine up front whether the right to telecommute will be offered to all employees. If you are offering the choice to work from home only to your high performers or the ones you “trust” the most, you may open yourself up to complaints of favourtism or, in some cases, discrimination. 

If you do deal with telecommuting requests on an ad hoc or project basis, ensure your workplace policy sets out objective criteria for allowing employees to work from home. Without an objective criteria, refusals to allow telecommuting can amount to a discrimination claim, as was the case in the Human Rights Tribunal of Ontario case last month of Devaney v ZRV Holdings (2012 HRTO 1590).

In that case, the applicant was an architect who had extensive elder care responsibilities at home. Denied the request to work from home and ultimately fired for failing to work in the office (his work product was good and his main client ultimately hired him directly), the tribunal ordered the employer to pay the employee $15,000 for discrimination on the basis of family status.

3. Constructive Dismissal Issues:

Most employees would view working from home as a positive term and condition of their employment. But what happens if corporate realities change and you want to bring employees back into the office? What if an employee’s productivity has become outweighed by their knowledge of day-time TV schedules? Without reserving the right in the workplace policy or employment contract to dictate work location, you may open yourself up to a constructive dismissal claim for introducing an adverse term (i.e. requiring the employee to return to a work office) into the employment relationship. 

The ongoing shift in how information and work product is created, stored, gathered, processed and packaged for clients will continue to evolve the workplace paradigm, which will inevitably include workplace location. For those employees who see themselves as more of a free agent to an employer rather than some sort of employee serf, flexibility around work location will be increasingly be viewed as more of an entitlement than a perk. Managing these job expectations will continue to be an interesting challenge for traditional workplace environments.

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Many Ontario employees will be surprised to learn that the Civic Holiday on the first Monday of August is not a statutory holiday in Ontario.  If your private sector workplace offers the day off, it is a perk, not a requirement.  The Ontario Employment Standards Act is silent on this holiday, and while many collective agreements and employment contracts may recognize the day, it is a negotiated extra day, not one of the 9 statutory holidays set out in the Ontario ESA.

Having said that, Ontario seems to widely recognize the Civic Holiday, but that is more of a collective desire to have a long weekend between Canada Day on July 1 and Labour Day at the beginning of September.

For the other provinces and territories, only British Columbia, New Brunswick, Saskatchewan, the North West Territories and Nunavut officially recognize the Civic Holiday as a statutory holiday. 

Not Just A Camping Holiday

While I have always considered this Monday one of the more important Camping Holidays of the season, according to Wikipedia (the source of all wisdom), the Civic Holiday in fact has a long history, tracing back to a holiday to mark the abolition of slavery in the British Empire in 1834.  In Toronto, "Simcoe Day" traces back to a municipal holiday in honour of Lord Simcoe, the first Lieutenant-Governor of Upper Canada, the colonial governor who is credited for ending slavery before Queen Victoria did, setting up our judicial system, creating Yonge Street, and setting up the Royal Agricultural Fair.  (What have you done lately?)

These are rather notable roots that make the Civic Holiday that much more gratifying in the middle of our particularly hot and sunny Canadian summer. 

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The United Nations International Labour Organization (ILO) just held its annual conference in Geneva from June 1-18, 2010.  The purpose of the annual conference is to develop and monitor compliance with international labour standards. 

The ILO is a tripartite agency of the United Nations, comprised of employer, employee and government representatives.  They have been responsible for pushing forward numerous initiatives to improve workplace standards, develop international standards and raise awareness of workplace issues internationally.

HIV/AIDS in the Workplace

At this year's annual conference, the ILO focused on an international labour standard regarding HIV/AIDS in the workplace.  While the issue of HIV/AIDS in the workplace has been has been discussed in various forums over the years (e.g. the ILO and the Commission on HIV/AIDS and Governance in Africa in 2004) it was in 2007 when the ILO initiated a working group to develop an international standard. This reflects an increasingly obvious awareness that HIV/AIDS remains an issue that is dealt with in a broad range of approaches in workplaces around the globe. 

Final Text of Recommendation Passed by General Assembly

The final text of the new standard was passed by the General Assembly in a vote on June 16, 2010.  The standard is unique in that it is the first internationally sanctioned legal instrument aimed at strengthening the contribution of the world of work to universal access to HIV prevention treatment, care and support.

The new standard is in the form of a Recommendation and must be communicated to national parliaments and discussed in terms of how it will be implemented through national policies and legislation. 

This is a historic development for those suffering from HIV/AIDS and those affected by this pandemic.  Let's hope the international standard will be able to push forward a better understanding of the skills, talent and hard work that employees with HIV/AIDS can contribute to the workplace.

The head of the employment and labour group in my firm, Kevin Coon, served as the Canadian employer delegate and has been working on the international labour standard for a couple of years.  In a press release about the new standard, Kevin notes that two thirds of those living with HIV/AIDS participate in the workplace, which is why the development of the standard is critical to the ongoing support, awareness-raising and protection of those with HIV/AIDS.  You can check out his video interview on the ILO website as well.

Impact in Canada

While it remains to be seen how the new international standard will be applied at Canada, increasingly, Canadian courts and arbitrators are considering international labour standards in the interpretation of other national laws.

Good examples are the Supreme Court of Canada cases of Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia and Fraser v. Ontario (A.G.) (the latter of which was heard in December 2009 but for which a decision has not yet been released). Both cases consider the international labour standard of freedom of association in the context of rights set out in the Charter.

While the development of policies, standards and recommendations of the ILO may seem a world way, their impact on local law continues to grow.

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There is a lot of activity, spilled ink and worry about complying with Bill 168 out there.  For my own spilled ink, see my previous posts on the issue: 

• Bill 168 Assessments: Deadline is Just Around the Corner
• Bill 168: Ontario Workplace Violence & Harassment (summary of the Bill)

Also see the Ministry of Labour/OHSCO's resources at:

• What Employers Need to Know
• The Toolbox

The week alone I revised a couple of policies on workplace violence and harassment, spoke to 100 employers at an industry association meeting about how to comply by June 15 and conducted an assessment of workplace violence with a client. 

Yes, there is a lot to do, but, given that it is a Friday morning before a long weekend and I'm feeling particularly cheerful, I wanted to point out that it is not all doom & gloom.  A pattern I'm seeing emerging is the number of opportunities this new legislation is creating for employers:

• Conversations about improving workplace health and safety:  Obviously everyone benefits from a safer workplace.  Addressing risks of both violence and harassment may raise issues that are bubbling under the surface, clear up long-standing issues, or at least lessen future incidents. For employers, fewer incidents of workplace violence and harassment means fewer resources, time and money spent on these issues, and a decreased risk of liability, all of which are good for the bottom line of the company.
• Raise awareness:  The training and the revised and/or newly introduced policies on workplace violence and harassment are opportunities to educate your employees about the issues.  If done well, it can both clarify what is not harassment (e.g. not every unkind word amounts to harassment) and identify what is workplace violence (e.g. certain "horseplay" or practical jokes that cross the line)
• Educate on domestic violence:  This issue raises the most questions and concerns, which means people are actively turning their mind to it.  While I don't believe employers should become the watchdog of their employees' private life - and very few are qualified to actively counsel on this issue - as of June 15, there will be an express legal duty to not turn a blind eye to the issue when it exposes any employees to the risk of physical injury in the workplace.  This is an opportunity to gather resources and become aware of the telephone numbers, websites and booklets you could provide to an employee you suspect is suffering from domestic issue.  As a start:
  • Assaulted Women's 24-Hour Helpline: 1-866-863-0511
  • Domestic Violence Doesn't Stop When you Go to Work:  How to get Help or Support a Colleague who may Need Help
  • Shelternet at 416-642-5463
  • The Ministry of Labour -OHSCO Guide and Toolbox mentioned above
• Assess the physical attributes of the workplace:  In the course of the mandatory assessment, employers have the opportunity to revisit the basic physical attributes of their workplace: lighting, parking lot obstacles that may increase risks, battery life on panic buttons, general access to the building by strangers, family members and service providers, whether isolated areas should have a phone installed, etc. 
• Engage your employees:  Employers need employee "buy-in" to make the entire exercise successful.  Employers need the information from employees if any trouble is brewing on the floor, and employees need to understand that it is equally their responsibility to relay information about risks of violence and harassment in the workplace.   Safety issues often impact women more than men, so this is also an opportunity to strengthen the voice of women in your workplace and provide them with a vehicle to raise concerns about workplace safety.
• Engage your union reps:  Many union reps will welcome the opportunity to work with management on identifying and dealing with workplace violence and harassment.  Often your union rep is the front-line gatekeeper that has to decide whether a complaint from a union member actually falls within "harassment" or "violence".  If they are wrong and choose not to file a grievance, they may face a Duty to Fairly Represent complaint from their members.  The conversations, training, assessment and updating of policies all assist the union and management to clarify what various expectations are and what are the general parametres of the legislation.  While we are unlikely to see any overall decrease in grievances on the issue, hopefully these conversations can help eliminate some of the more frivolous complaints not contemplated by the legislation or the parties.
• Engage high risk individual employees:  Several employers have told me that they will use the training as an opportunity to address specific issues already at play in their workplace.  For example, if you have two employees engaging in excessive flirting, and one of those employees has a spouse with a particular temper, after the training you can pull them each aside separately and point out how they fall squarely within the concerns raised by the domestic violence provisions of the Bill, and how your employer duties require you to pro-actively address the situation.  Similarly, during the training, you can identify certain types of behaviour that may violate the new provisions and put your employees on notice that the workplace will be actively dealing with these issues (e.g. "horseplay", excessive practical jokes or teasing, etc).

If you have experienced other positive results from working on your Bill 168 compliance plan, I'd love to hear from you. 

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Just in time for Valentine's Day, Toronto city councillor Adam Giambrone made a statement to the media  last night that he has had "intimate relations" with women other than his spouse throughout most of 2009. 

While at 32 years old, the politician may be excused for the lapse in judgment, given his former bid to run for Mayor of Toronto, the jury is out whether public opinion will be quite so forgiving.

In my view, the interesting issue is not so much whether he had affairs, but rather, the extent to which the news will have a negative affect on his credibility and ability to assume the role of leadership and responsibility of running a large city.  In fact, he has stepped down from his candidacy within a day of the news.

Companies are forced to deal with this all the time.  What happens when one of your senior people starts behaving inappropriately at the staff party?  When rumours start to fly about an affair with a junior person in the organization?  Or when two people approach you, as owner, to declare that their mature romantic relationship will not impact their workplace professional relationship?

The courts zero in on consent - if a senior executive is romantically involved with a junior employee, is the employee really fully consenting?  Or is he or she just worried about job security? 

Unless your workplace policy says otherwise, it is likely fairly benign for employees to engage in relationships with people at the same level, at least in the short-term while they are each at the same level.  The cases are clear, however, that relationships crossing supervisory roles are a problem.

In the 2009 Ontario case Cavaliere v Corvex Manufacturing, the plaintiff sued the company for wrongful dismissal.  He had worked his way up the company to a senior management position.  After a warning about sexual relationships with one employee, the plaintiff engaged in a relationship with another employee.  When that employee's husband found out, he went straight to the owner.  The owner - and the court - found that the pattern of behaviour was sufficient grounds for dismissal.

The plaintiff insisted that the relationships were consensual and relied on a 1995 case that found consensual relationships in the workplace were not grounds for dismissal.  He argued that if the relationships were consensual, his dismissal was wrongful and he was entitled to damages for pay in lieu of notice. 

The court in Cavaliere, however, held that in 2009, the achievable expectation for an harassment free workplace required a look at all of the facts, which included:

• the company had already warned him in writing to cease the behaviour;
• he was in a position of senior management; 
• the last relationship was with a particularly vulnerable junior subordinate; and
• the plaintiff just "didn't get it" that the behaviour in the circumstances was inappropriate.

These were all reasons to uphold the termination and deny him any termination pay.

Those in leadership roles will bear a greater onus to guard against romantic relationships with subordinates.  While many Canadians still agree that the state (or the courts or the company) has no place in its citizens' bedroom, for leaders and senior folks in your organization, that may not be quite so true.    

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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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What do your workplace policies say about using a cell phone while driving?  For companies with a sales staff, delivery drivers, and couriers for example, there may be a large number of employees on the road every day. 

Who pays for traffic tickets when the employee is stopped by police? 

Last month, the Ontario government passed Bill 118, a law amending the Highway Traffic Act, banning cell phones, blackberries and other hand-held wireless communication devises while driving.

Needless to say, bluetooth sales are on the rise.  You can still talk on your cellphone, but it must be handsfree.

While there has been a grace period before the police begin enforcing the new law, on February 1, 2010, police will begin issuing tickets.

If an employee is acting in the course of duty, an employer is vicariously liable for his or her actions.  If an employee is calling into the office on a hand-held cell phone while driving between client appointments, for example, would the employer be responsible for paying for the ticket?  Or worse, if the employee is at fault in a car accident because of talking on the hand-held cell phone, who is liable?

To avoid the disputes about liability and/or who pays for traffic tickets, employers may want to think about revising workplace policies to reflect the new law.  You should expressly forbid employees from using any hand-held devices and indicate directly in the policy that employees are expected to comply with the law.  That way, expectations are clarified between the parties, and should an employee get ticketed for chatting on the phone while driving - whether work related or not - an employer can then point to the workplace policy that prohibited the conduct in the first place. 

Perhaps as importantly, you may want to refrain from speaking to your employees by telephone when they are driving, particularly if the company is choosing not to upgrade company cell phones to handsfree technology.  Besides the obvious contribution to unsafe driving, by expecting them to talk to you on the phone while driving, you are essentially condoning the use of hand-held cell phones while driving, making it more difficult to rely on the policy should you need to.

While employers in general remain vicariously liable for the conduct of employees during the course of work, illegal behaviour on the part of an employee that has been expressly addressed in a workplace policy may assist with mitigating the employer's liability.

What steps have you already taken to deal with this?  Have many of you found that your existing policies already cover this new law?  Are companies simply upgrading company cell phones to make the devices handsfree? 

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