Top 10 mistakes to avoid when hiring your first employee

For this week’s blog, we have gathered a list of the top 10 mistakes commonly made by freelancers and startups when hiring their first employee.  Avoiding these pitfalls will help start you off on the right foot and avoid the hiring headaches!

We’ve also covered our Top 10 list in this month’s SpringForward Legal Updates if you prefer to watch the webinar instead. Email us for the replay link.

#1 – Misclassifying your worker – Independent contractor, employee or freelancer?

Businesses often have a blend of workers.  Make sure to know which classification your workers fall under.  Employees can be hired for either a fixed or indefinite term whereas independent contractors are hired for services on a specific project and generally service their multiple clients/businesses.  

It is helpful to decide ahead of time what the right hiring path is for your business and what type of worker best suits your business needs and to make sure the hiring contract reflects that classification of worker.  Is the project short term or is this a permanent role you are trying to fill? What is the type of service and industry you are in? These answers will help with the decision-making process.

#2 –  Missing CRA and statutory requirements

The following is a helpful checklist to ensure you are completing the required CRA and statutory requirements for a business with employees:

  • Open an account with CRA for payroll source deductions
  • Have employee(s) complete a TD-1 and a TD1ON Form
  • Year-end T4A & CRA requirements
  • Determine if your business is required to open a Workplace Safety and Insurance Board account.
  • Distribute the Ministry of Labour Fair at Work Ontario Poster
  • Workplaces covered by the Occupational Health and Safety Act (“OHSA”) must display a health and safety at work poster, have a copy of the Occupational Health and Safety Act available, as well as the names and locations of your workplace joint health and safety committee members;
  • Health and safety awareness training is required for every worker and supervisor under the  OHSA.

#3 – Mucking up the employment contract

When hiring new employees, remember that the employment contract is very important!  Make sure that it includes at least the minimum standards for notice, benefits and vacation, etc.  Focus on the termination clause, a lot, and specify employment and post-employment rights and obligations.  Ensure that your new employee agrees to the terms of employment and signs before their first day or all of your hard work in creating a great employment agreement means nothing.

#4 – Mucking up recruitment

When hiring, remember that all stages of the employment relationship are covered by “employment” in the human rights legislation, including the recruitment stage.  The hiring process cannot be discriminatory i.e., differential treatment based on disability, race or gender, etc. Always include this in your post and offer accessibility to those who need it.

#5 – Loosey-goosey remote working rules

For those employees that work remotely, ensure that you have a good policy in place that includes eligibility to work remotely, requirements around responsiveness and communications, digital security, productivity, unauthorized overtime and confidentiality.  Protect your business’ digital assets during employment to make sure they are protected upon termination.

#6 – Being cynical about disability issues

You might be surprised, but this is the busiest area of employment law for lawyers.  Always give the employee the benefit of the doubt (even if something about their doctor’s note and communications to you smells bad).  Workplace “stress” and its medical symptoms are real and can be very expensive for an employer if you get it wrong. Employers are not without rights and recourse, but it’s tricky and one of the few areas we strongly recommend against a DIY approach.

#7 – Failing to manage performance before blow ups

Communication is key with your employees.  Always provide constructive criticism along the way and make sure to document it.  This helps keep emotions in check along the way and ensures that both the employer and employee are on the same page.  It is very hard to fire for cause and you can’t do so without written records of sharing your performance concerns. Mere incompetence is not enough.  

#8 – Giving away your ideas

Business owners are generally very passionate about what they do.  Don’t let all of your hard work leave with your terminated employee.  Have employees sign a confidentiality, non-compete and non-solicitation agreement which will limit their ability to solicit your clients and/or compete for those same clients in the same area.

#9 – Not protecting your ideas

Identify what your intellectual property is and pay a lawyer to protect it.  Period!

#10 – Firing friends and family badly

Hiring friends and family can be great for your business.  They generally have your best interests in mind and you already know that you like them!  When the relationship ends, however, things can go badly. Make sure you protect your business upfront when the relationship is still good.  Always have an employment contract in place. Prepare a termination letter and release ahead of time and do not complete the termination meeting alone, make sure to have another person present. It is also good to always provide the terminated employee with time to consider the termination package received.

Takeaways

We hope that the above list of mistakes to avoid will lessen the stress with the hiring of your first employee as your business grows.  It’s an exciting time – congratulations!

Always remember to always write things down, set expectations upfront and hope for the best but plan for the worst.  Employment contracts and policies are key to avoiding mishaps down the road.

If you have any questions about your first hire or would like help with drafting your employment contracts, feel free to get in touch!

Fired by a robot!

Amazon has been in the news recently for its practice of tracking warehouse workers’ box packing speed and firing them if they do not “make rate.”  According to internal Amazon documents, related to a termination at a Baltimore Maryland warehouse location, Amazon’s automated tracking system automatically generates a series of warnings. After 6 warnings in 12 months, a termination is automatically generated if workers fail to meet “efficiency” standards.  These termination decisions are made automatically by the system and without input from a real person, though Amazon says that supervisors are able to override the automatically generated terminations.

We have truly reached an age where people and robots are working together and where robots are effectively performing an HR function. HR, unlike a self-checkout or an assembly line robot, is something we normally think of as a soft, people only skill! Robots are branching out! However you may feel about machines in the workforce, we think it’s pretty cool that robots are expanding their skill set. While there are certainly risks to be navigated and considered, there are also undoubtedly gains to be had in terms of efficiency and elimination of bias. Robots do not have teacher’s pets!  But should robots be making human resources decisions?

When Your Boss is a Robot

So, effectively, Amazon workers are, to an extent, monitored and managed by these rate tracking robots. The robot supervisors also track the time an employee is “off task” – reportedly causing some employees to skip bathroom breaks. Decisions about productivity rates are made by (human) managers outside of the facility and changed only if more than 75% of the workforce fails to meet the targets. Targets are reviewed quarterly.

Amazon says that a worker can apply to have their termination reviewed by the general manager of their facility or to an appeals panel of their peers. In the Baltimore documents noted above, the terminated worker on one occasion gave the excuse that his “rate” was low because he was ill. He was told by the peer review panel that he should not have come in if his illness was going to slow him down and impact his rate.  

Amazon in Canada

The above details are about Amazon in Baltimore Maryland, where the employment law landscape is different – and much less worker-friendly – than it is here in Canada. However, Amazon has not been without its own bad press here in Ontario. Amazon courier contractors, who employed unionized workers, have gone bankrupt reportedly because the costs of a unionized workforce made it impossible to meet Amazon’s standards for low costs and efficiency. Courier drivers are also reportedly texted – presumably by an automatic system –  if they are not making deliveries fast enough.

Is This Legal?

While we do not know if the Baltimore warehouse situation is playing out in Canada if it is it presents some red flags regarding legal compliance and employer obligations. In Ontario, workers are protected by the Employment Standards Act, the Occupational Health and Safety Act and the Human Rights Code.  

While robots are good for treating everyone the same, workers who need accommodations based on protected human rights grounds, for example, disability, sex or age, need to be given those accommodations up to the point of undue hardship to the employer. In other words, not everyone should be treated the same. The standard of undue hardship for Amazon would be pretty steep – much more than just having to tolerate lower efficiency from one worker. This means that if a worker could not work as fast as Amazon expected because, for example, they had an injured knee or had to take breaks to pray, terminating them for not making rate would be a violation of the Human Rights Code.

Similarly, employers have an obligation under the Occupational Health and Safety Act to provide safe working conditions. Requiring an employee to work so fast that they cannot take bathroom breaks is arguably not safe.

In Canada, employees cannot be terminated “at will” the way they can in the States. While absent human rights reasons, Amazon could terminate an employee for failing to “make rate” it is highly unlikely that this reason would constitute cause, meaning that the terminated employee would need to be provided with notice of termination.

From a Canadian perspective, the practice of automated firing by a robot is concerning. While in some sense the elimination of human bias is good from a human rights perspective, terminating an employee without exploring the possible human rights reasons for which they may not be able to “make rate” is risky!

If you’d like to chat about the impact of technology on your workplace, get in touch!

Sexual Harassment in the Fundraising Donor Space – Part Two

Firstly, Happy May Day and Happy International Workers’ Day!

This week we will be continuing our series on Sexual Harassment in the Fundraising Donor Space and exploring situations where needed donations or funding come with strings attached.

If you haven’t read our Part One from last week, you may want to check it out before reading on.

In our last post, we discussed the employer’s obligation to protect workers from violence, harassment and sexual harassment in the workplace and covered the broad definition of the workplace. Then we posed a variety of tough questions around what to do when the perpetrator of that violence or harassment towards the worker is someone the organization needs. Is tolerating bad behaviour from an important donor just the cost of doing business? And if so, what are the costs?

Employer Obligations

Taking steps to protect workers from violence, harassment and sexual harassment is the law. Employers – and by the way, an employer is defined in the Occupational Health and Safety Act (OHSA) as anyone who employs or contracts for the services of ONE or more workers – must have policies and programs in place regarding their OHSA violence and harassment obligations. Check out the Ministry of Labour’s Guide on this topic for a helpful breakdown. The truth of the matter, however, is that often even employers who have their ducks in a row in terms of policies and programs do not walk the walk when it comes to important clients, investors or donors and look the other way when it comes to bad behaviour. So what happens then?

Complaints and Investigations

If an employee is being harassed and they either complain – formally or informally – or the employer somehow comes to know about the harassment, the obligation to conduct an investigation appropriate in the circumstances is triggered. This is a legal requirement under OHSA and can be a really big deal. If the alleged harasser is someone powerful either in the organization, or an important donor or client, it will likely be difficult to keep the investigation in-house. The person who investigates should neither be involved in the incident nor under the control or influence of the harasser. If the harasser is powerful, it will likely be best to retain a neutral 3rd party investigator. Our own Marnie Baizley is one of these investigators, so feel free to give her a call if you want to learn more.

Investigations can be expensive and disruptive. Arrangements must be made while the investigation is taking place to protect workers and witnesses – this could mean temporarily re-assigning people so they don’t work together, for example.

The investigator will make findings about the allegations and the employer will need to take action based on those findings.

The Consequences of Tolerating Bad Behaviour: Employer Liabilities

While investigations, and whatever tough decisions flow from their findings, aren’t cheap or easy, there are also liabilities for an employer if proper actions regarding harassment are not taken.

Employees who experience harassment in the workplace have the option to bring a variety of claims against an employer who did not take adequate steps to protect them. These could be in the form of notice damages if, for example, an employee leaves claiming that the harassment they endured constituted a constructive dismissal. Employers could also be liable for damages for bad faith, where the employee suffered mental distress as a result of the harassment, or human rights damages where the harassment has a connection to a protected ground, such as sex. Damage amounts are all over the map, but the mere fact of having an employee or ex-employee send an organization a demand letter will start the clock on what can be huge legal fees and a huge suck of energy and moral for an organization.

Employees who feel that their employer is not taking steps to protect them can also complain to the Ministry of Labour, who will then investigate themselves and potentially issue an order to the organization to do something. Often the order will be that the employer conducts an impartial investigation into the harassment complaint. Ministry of Labour inspectors can also initiate Provincial Offences prosecutions for violations of OHSA.

Employer Excuses – But we need that guy!

The need to preserve donor, client or business relationships is not a sufficient excuse for not complying with the law. Employers may think that a decision maker will be sympathetic to them if they could only know how much the organization relies on the harasser and his or her money, but this is not the case. Even if protecting employees from harassment might mean losing the funding that pays their salary, employers still have a legal obligation to protect employees from harassment. The consequences will not be any lighter because of how needed the harasser is.

Takeaways

While looking the other way may be tempting when the harasser brings needed funding or work, not complying with the law and not letting these offending individuals know that their behaviour is unacceptable can be hugely expensive and embarrassing for an organization. Not to mention disruptive and potentially harmful to employees and the workplace. Fortunately, we are seeing a cultural shift where more bad behaviour is being exposed, instead of silently tolerated, and where bullies and harassers are being stood up to. The more we all do our part within our own organizations the faster this needed change will come.

If you’d like to talk more about how to deal with harassment in your organization get in touch! We are passionate about this issue and eager to help.      

Sexual Harassment in the Fundraising Donor Space – Part One

We have talked a lot about workplace sexual harassment on this blog. Practising exclusively in workplace law we, unfortunately, see the issue of workplace sexual harassment come up a lot. Helping employers and employees of all shapes and sizes deal with issues related to sexual harassment makes up a lot of what we do.

Employer Obligations

Ontario organizations and businesses, be they big or small, for-profit or non-profit, as long as they have at least one worker of some type, paid or unpaid, have obligations regarding workplace harassment, violence and sexual harassment under the Ontario Occupational Health and Safety Act (OHSA), as well as the Ontario Human Rights Code. Other provinces have similar legislation and employer obligations. Employers must take steps to protect workers from violence, harassment and sexual harassment on the job and in the workplace.

Workplace, by the way, does not just mean the physical office or worksite but any land, premises, location or thing at, upon, in or near which a worker works. If a worker goes on a work trip, attends an event as part of their job, or travels to a client site then those places are also the workplace and the employer’s obligation to keep the worker safe travels with them.

Safe From Whom?

Given the expansive definition of the workplace, readers will likely not be surprised to learn that employers – who must take every precaution reasonable in the circumstances to protect the worker – must guard against violence and harassment that may come from outside of the workplace. Workplace harassment does not just mean harassment that may occur between employees or co-workers. Harassment may also come from donors, clients, outside vendors, board members, volunteers or investors.

When the Harasser is Important to Business

The unfortunate reality in many workplaces is that the harasser is powerful and needed. This is why, presumably, all those people in the know at CBC kept quiet about Jian Gomeshi for so long. His ratings were good and he was an important part of the show. That he has been replaced by the great Tom Power and that Q is still going strong is perhaps a lesson in how even the seemingly irreplaceable are replaceable.

In 2017 and 2018, we saw many news stories about sexual harassment in Silicone Valley and the venture capital world.  Many stories came from women entrepreneurs seeking funding from powerful and wealthy venture capitals. Seed funding, in many cases, seemed to come with the condition of grinning and bearing sexual harassment or worse.

Of course we all know about the #metoo movement over the last couple of years in which the arts industry found a very public online voice that brought down some of the most powerful aggressors in Hollywood and beyond.

This begs the question of what to do when needed money, support, power or influence comes with the condition of tolerating harassment? Or, how to handle the situation if your most important client keeps hitting on your receptionist?  Or the job is conditional on agreeing to sexual conduct? An employer may want to keep a top performer, an important client or take the money of a smarmy investor or donor but can they? Or equally as important, should they? What are an employer’s obligations in these cases? We will explore these questions in our next post.

In the meantime, if you are dealing with harassment in your work get in touch or read our past posts on harassment and sexual harassment for more on this issue.

Let’s talk ergonomics!

You may be scratching your head at our title. What’s ergonomics got to do with law? Maybe even asking, what the heck is ergonomics? Well in this post we will answer both of those questions and tell you why workplace ergonomics should be on the radar of employees and employers alike.

Ergonomics is the science and study of working conditions with respect to the physical body and duties of the worker.  If you work in the public sector or a large organization you’ve probably heard this word, maybe you have even had an occupational therapist come and give you an ergonomic assessment! Lucky you! Ergonomic adjustments for office workers will include things like chairs, standing desks, special keyboards or computer displays.

Ergonomics in the Workplace

Ergonomics is on our mind because the Ontario government recently published a useful new guide called Ergonomics in the workplace. As the guide explains, and as we know from working with clients, ergonomic workplace issues can impact all kinds of workers from construction workers to desk workers and everyone in between. Ergonomic issues can be things like sitting in an awkward position, being in a desk set up where you are constantly having to look over your shoulder to serve clients at the counter, holding a vibrating jackhammer all day, lifting or transferring a patient out of bed in a care setting, changing a beer keg and so on. Think anytime you’re using your body to do your job, yes even if all your body is doing is sitting and clicking a mouse.

Ergonomics and the Occupational Health and Safety Act

The Occupation Health and Safety Act (OHSA) applies to almost all workers and workplaces. Covered employers have a legal obligation to protect workers from hazards, including those that could be caused by poor ergonomics. Ergonomic issues most often turn into workplaces issues when workers develop musculoskeletal disorders (“MSD”) and/or fall.    

The OHSA requires employers to keep equipment, materials and protective devices in good condition. Even things like office chairs that don’t raise and lower properly could cause MSD through extended awkward posture. MSD can result in lost productivity and lost time for employees. Even poor lighting is considered an ergonomic issue that could result in employee eye strain or headaches.  

Employers also have a duty to provide information, instruction and supervision on health and safety. This could be where an ergonomic assessment comes in. Employers have an obligation to teach their employees how to do things like lift safely. Employers also have an obligation to communicate hazards to employees and to take every precaution reasonable in the circumstances to protect workers.

Ergonomics in the Modern Workforce

Many workplaces are moving towards more flexible work arrangements where employees are not necessarily spending all their time working in an office. Some employees work exclusively outside of the office. How do ergonomics and the employer’s OHSA obligations apply in these workplaces? OSHA does not apply to work an employee performs in his or her own home. However, even where there are no legal obligations to do so, it’s a good idea to make sure that your employee’s home office is set up in an ergonomically effective way to ensure that your employee is as comfortable and productive as they can be.

If you have questions about the OHSA or workplace injuries get in touch!

Bill 66 Passes

Bill 66 has passed! Further to our past post on Bill 66 the oh so neutrally named Restoring Ontario’s Competitiveness Act received Royal Assent in the Ontario legislature on April 3, 2019.

This Bill ushers in further changes to the Ontario workplace statutory landscape, with amendments to the Employment Standards Act, 2000 (ESA), the Labour Relations Act, 1995 (LRA) and the Pension Benefits Act (PBA). The ESA and PBA changes are now in effect. The majority of the LRA changes will come into effect on a day to be named by proclamation of the Lieutenant Governor.

Changes to the ESA

The changes to the ESA came into force on April 3, 2019, and have a practical impact on workplaces where overtime is common and where employees work more than the ESA maximum weekly hours of work – 48 hours.

Bill 66 amends the ESA to remove the requirement that employers obtain the approval from the Director of Employment Standards regarding agreements with employees or bargaining units on overtime and excess weekly hours of work.

Overtime Averaging – As was previously the case, employers are allowed to enter into agreements to average the hours an employee works over a specified number of weeks in order to limit the employee’s entitlement to overtime. Prior to Bill 66, approval from the Director of Employment Standards was required. Approval is no longer required, though there are new requirements:

  • Averaging can occur over a maximum of 4 weeks
  • The averaging agreement must include a start date and an end date

Excess Weekly Hours of Work – The maximum weekly hours of work remains the same, 48. Approval was previously required to have employees enter into agreements to exceed the maximum. A written agreement between the employee or bargaining unit and the employer is still required to exceed the maximum, but approval from the Director of Employment Standards is not.

ESA Poster Requirement – Previous to Bill 66, the ESA required that the ESA poster, which is a one-page graphic about employment rights be posted in a conspicuous place in the workplace. Bill 66 has removed this requirement. Employers are still required to provide employees with a copy of the poster upon hire.

Changes to the LRA

Bill 66 amends the LRA to expand the definition of “non-construction employers” to include a wide number of public sector organizations such as municipalities, hospitals, universities and various administrators. The LRA has specific provisions for the construction industry and this change will impact whom those provisions apply to. This provision is not yet in effect, however, a provision allowing some entities to “opt-out” of this change is now in effect and these entities now have three months to file an “opt-out” election.

Changes to the PBA

The Bill 66 amendments to the PBA impact the process by which private sector employers convert single-employer pension plans to jointly sponsored pension plans.

Takeaways

We expect the changes to the ESA to have the biggest impact on day to day operations of private workplaces. If your workplace has averaging agreements or excess hours agreements in place these changes may impact you. Get in touch to talk about the specifics of your situation, we’re here to help!  

Alternative Dispute Resolution in Employment Law – Part 2

Last week we discussed traditional ways of resolving employment law disputes. This week we will dig into the alternative!

Alternative Dispute Resolution (ADR)

Given the limitations of formal dispute resolution processes (for more on this check out our post from last week), the use of ADR has increased in significance.   ADR involves the implementation of a range of techniques – such as negotiation, use of technology and risk mitigation strategies – to resolve disputes or avoid them entirely.  

Workplace disputes can be emotionally charged as they often involve the messy dynamics of human relationships.  Still, most claims will have a monetary value attached to them. A key part of the dispute resolution strategy, for both employees and employers, should involve getting the best deal possible.  As informational asymmetries decrease with constantly evolving legal research technologies, parties should increasingly have an objective assessment of what a claim is worth. This is why our lawyers at SpringLaw use artificial intelligence, for example, to determine reasonable notice periods with an unprecedented level of accuracy.  The closer we can get both sides to agree to the value of the claim, the more quickly a dispute can be resolved, with less money spent on lawyers.

While the use of technology and negotiation are powerful tools to resolve disputes, avoiding disputes altogether is always preferable.  Many disputes that we encounter could have been avoided entirely with properly drafted contracts, termination letters or workplace policies.

The Future of Dispute Resolution

We think that negotiation leveraged through technology and dispute avoidance will be increasingly vital dispute resolution tools.  The Lord Chief Justice of England and Wales recently hailed the potential of big data and AI to reduce litigation and promote settlement. Also, check out our past post for some insight into how Ontario judges are pushing lawyers to use technology.  

We also anticipate that technology will increase the accessibility of formal dispute resolution processes for workplace disputes.  The Civil Resolution Tribunal in British Columbia is Canada’s first online tribunal and has been incredibly successful in resolving claims and increasing access to justice.  We expect similar initiatives to come to Ontario before long.

Other examples of online and tech-driven dispute resolution mechanisms include:

  • Online Dispute Resolution (ODR), which is, in essence, the implementation of ADR techniques via technology.  With the proliferation of the internet and e-commerce in the 1990’s, ODR emerged as an alternative to traditional courtroom processes for resolving consumer disputes.  Large corporations such as eBay and PayPal have since effectively implemented ODR as a mechanism for dispensing with high volumes of consumer disputes.
  • Innovative ODR platforms have recently emerged to resolve a wider range of legal disputes. BidSettle is a Quebec based startup that offers an online negotiation platform for the resolution of monetary disputes across Canada.  By removing the need for lawyers (and their fees) in the negotiation process, the platform allows parties to make confidential offers and counteroffers free of charge in a less adversarial way. If consensus is achieved, both parties pay 2.5% of the cost of the settlement, and the platform will create binding settlement agreements on behalf of the parties.
  • South of the border, Sagewise is developing a dispute resolution protocol for smart contracts, which includes automated bots for routine disputes, to a “crowd jury” for more nuanced disputes.

Resolving and avoiding workplace dispute requires a solid understanding of the law, workplace dynamics, and goals of the parties involved, along with an arsenal of progressive dispute resolution strategies.  At SpringLaw, we are happy to leverage all of these tools to help you best resolve your workplace issues. Get in touch if you’d like to chat!

Alternative Dispute Resolution in Employment Law – Part 1

The practice of law has changed.  The days of the gun-slinging Harvey Specter-esque litigator, sipping single malt scotch whiskey and ready to obliterate his opponent at a moment’s notice, has given way to a new breed of tech-savvy, collaborative and cost-conscious lawyers who are more concerned with serving their clients’ personal and business needs than delivering memorable zingers in the courtroom.  

There is still a time and a place for the Harvey Specters.  Certain conflicts are unresolvable and require the full arsenal of “bet the company” legal mercenaries.  But business, technology and work culture have evolved. Employment lawyers know that it often is not worth the cost, uncertainty and effort involved to demoralize an adversary in the courtroom.  Working towards collaborative solutions and front-loading the risk of litigation are often in everyone’s best interests. In this post and next week we will explore Alternative Dispute Resolution in Employment law.

First, we’ll take a look at some of the formal ways of resolving workplace disputes.

Formal Resolution of Workplace Disputes

In Ontario, there are currently three main forums for resolving workplace disputes, each serving different purposes and bringing their own set of strengths and weaknesses.

1.  Ministry of Labour (MOL)

The MOL investigates complaints regarding violations under the Employment Standards Act, 2000 (ESA) and the Occupational Health and Safety Act and is a free resource for employees who could not otherwise afford a lawyer. The MOL Employment Standards hotline offers information about employment standards and can help employees to understand their ESA rights. Employees can also make employment standards claims through the MOL which will deal with issues related to ESA rights, such as unpaid wages, vacation or overtime. The MOL and employment standards claims only deal with statutory ESA rights, so will not be useful for addressing disputes arising from the contract of employment or other entitlements.

2.  Human Rights Tribunal of Ontario (HRTO)

The HRTO is a free dispute resolution process to address violations under the Ontario Human Rights Code.  While it is a useful forum for employees to address workplace discrimination issues, decision makers are limited in their ability to award punitive and aggravated damages, unlike a judge in court.

3.  Court

A court action can address violations of any employment law related statute, contractual disputes, or claims for punitive or aggravated damages occurring as a result of an employment relationship.  However, there are filing costs associated with a court action which will often require a lawyer for proper representation and the losing parties can be liable for the winning party’s costs. Perhaps for all these reasons, people have been turning less and less to courts to resolve disputes.

Stay tuned for our post next week in which we will discuss the alternative to these formal dispute resolution forums.

So You’ve Been Fired…Introducing our new e-book!

At SpringLaw one of our goals is to educate people about their legal rights in the workplace and upon termination, but this can be hard to do on a large scale. We want to reach many more people than those who we are able to serve individually. This is one reason why we are so active on our blog and why we have written our new e-book, So you’ve been fired, now what?  

When You Can’t Afford a Lawyer…But You Want to Know if You Have a Case

Let’s face it, lawyers can be expensive! This often feels particularly true for someone who has just lost their job. For some, putting down money for a legal retainer or wracking up a legal bill in order to figure out their rights when they’ve just lost their income source is simply not an option. We get a lot of inquiries every day from people in just this position. Many will decide that they just can’t afford a lawyer and will simply sign off on their termination package, or walk away from their jobs without ever really understanding their legal rights and what they may be leaving on the table. We wrote So you’ve been fired, now what? for these people, with the hopes that this would happen less often.

This book is designed to answer questions and provide information so that those who have been recently fired can educate themselves and figure out if they might have a case worth pursuing. It also provides information about options on what to do, from going to the Human Rights Tribunal, making an Employment Standards Complaint, negotiating directly with a former employer and information about when talking to a lawyer might really be necessary.

So you’ve been fired, now what?

Our ebook will help terminated employees to answer the following types of questions:

  • What are my rights?
  • What do I do now?
  • Should I sign?
  • Did I get enough?
  • Is my employer even allowed to do this?
  • Have I been treated fairly?
  • What about how I was harassed?
  • What about the discrimination I faced?
  • What about that non-compete agreement I signed?
  • What are my entitlements?
  • How can I get paid what I’m owed?

We will also help those who don’t even know what questions to ask.

If you or someone you know has recently lost their job and has some of these questions, then head on over to our page to learn more.

Whose device is it anyway?

Technology continues to blur the lines between our personal and work lives.  How often have you answered a client email on your work laptop, only to receive a follow-up question via text message on your personal phone?  

Many workplaces have adapted to the fluid use of technology and encourage their employees to use their own technology at work through bring your own device (BYOD) policies.

BYOD can provide many benefits to workplaces and employees. It has been shown to improve efficiencies and worker engagement while powering a more innovative, productive and collaborative workforce.  

As the use of mobile devices increases relative to personal computers, and as organizations continue to embrace the benefits of remote working arrangements, we believe that BYOD will continue to trend upwards.

But what are some of the legal risks and best practices surrounding BYOD which organizations should be aware of?

Permitted Uses

Employers should define the acceptable uses of personal devices for work purposes.  An employee’s use of email, instant-messaging and the internet can be a vehicle for inappropriate, discriminatory or harassing behaviour, especially for employees who feel less inhibited using their personal device.  

For example, an employee who exchanges inappropriate images with another employee on their respective personal devices could be engaging in workplace harassment.  As such, employers should be clear about the acceptable uses of workplace technology, regardless of who owns the equipment.

Vicarious Liability and Security

Vicarious liability refers to a concept whereby employers can be held responsible for the negligent actions of an employee, which includes an employee’s use of technology.

What happens when an employee’s personal computer is stolen, yet is flush with highly sensitive client information and which has minimal security preventing access to the computer, company networks and applications?  What about an employee who uses their personal computer to visit questionable websites on their personal time and is then subject to a malware attack which places confidential company information at risk?

Employers should educate employees on the importance of security best practices, such as not storing any work product locally.  Organizational best practices can also include using a password manager like LastPass and using a Virtual Private Network (VPN) to add security and privacy to private and public networks.

BYOD policies should also contemplate the security of confidential information on personal devices for departing employees.  The exit requirements should include a process for deleting data and proprietary information, as well as revoking access to organizational networks and applications.

Overtime

We have previously written about some of the issues surrounding constant connectivity, which can include claims for unpaid overtime to employees who are checking and responding to emails after work hours.  This is especially true for remote workers and workers who use their personal devices at work.  Employers should, therefore, have clear policies about the use of personal devices for work-related activities after hours.

Takeaways

While there may be some logistical hurdles in implementing an effective BYOD policy, we do not think it is something employers should shy away from.  Studies suggest that up to 67% of employees use a personal device at work, whether an organization has a BYOD policy or not.  You might as well embrace the fact that your top performers will check their work email on their brand new iPhone and access your cloud platform from their tablet in a trendy coffee shop on a Sunday afternoon.  

Organizations should therefore proactively devise and manage effective BYOD policies so that both employers and employees can reap the benefits of leveraging technology in the workplace.  

If you need help developing a BYOD policy, we would be glad to assist.

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