In my last blog posts (here and here), I discussed the emerging importance of coworking spaces in the post-industrial workforce and some of the risks around data security and privacy. In this part three of the series, I set out some of the employment law issues related to human interactions in coworking spaces: booze, sexual harassment and discrimination.
Unlike most traditional offices, coworking spaces are designed to be relaxed, inspiring and fun, on the premise that a happy, connected worker is a productive one. Alcohol is available at many coworking spaces, and that can make the most creative soul, well, overly creative –professionally and socially.
For smaller spaces, alcohol may become too much of a social glue and lead to uncomfortable situations. There is no “employer” to discipline anyone and no one is counting the number of times that you returned from lunch with the smell of a pint or 3 on your breath.
For small employers using coworking spaces – and especially those employers in a combined living/coworking space – some sort of policy around expectations of hours, productivity and general conduct would save you grief when an employee/partner/intern acts up one time too many. At the very least, setting out expectations can lay down the foundation for necessary terminations down the road, as well as act as a due diligence document you can pull out if sued because of your employee’s drunken misconduct.
(2) Sexual Harassment
The relative youth of the coworking world, the long, intense hours, no supervision, occasional booze, and close physical working space, all invite sexual tensions that could become augmented in the relaxed coworking space. Sexual harassment need not be an intentional act to be illegal. Any unwelcomed sexualized behavior towards someone (of whatever gender and sexual orientation) can give rise to problems and potential liability.
While the lack of supervision is a key attraction for most, the lack of enterprise infrastructure or HR personnel means individuals don’t really have someone from whom to seek advice or formal support, and no discipline system to “fire” the harasser. The onus is on the parties to figure it out.
For employers, regardless of where your employees work or how large your operation, you have an obligation under the Occupational Health and Safety Act to keep your workers safe. For employers with more than 5 employees, there are various additional obligations, such as implementing policies with respect to workplace harassment, including measures and procedures for workers to report incidents of workplace harassment, details on how the employer will investigate and how deal with incidents and complaints of workplace harassment.
Size doesn’t matter when it comes to the Ontario Human Rights Code. As a quasi-constitutional document, the Human Rights Code applies to all employers. Here are the key provisions on discrimination in the workplace:
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.
Harassment in employment
(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
Any individual with a complaint under the Human Rights Code can file an application with the Human Rights Tribunal, a tribunal with a very busy employment-related caseload, and at which you need not be represented by a lawyer. This makes it fertile ground for complaints by employees.
In addition to concerns about discrimination in the workplace, employers must also be mindful of the pro-active duties imposed by the Accessibility for Ontarians with a Disability Act(“AODA”) (See my various AODA blog posts here). Regulations under AODA set out how customers with an accessibility need must be treated by your employees. As well, various employment related standards will be rolled out over the next few years under the AODA Integrated Accessibility Regulation, touching on everything both before and during the employment relationship. Accommodation of employees with a disability will continue to be an increasingly busy and complicated aspect of managing all workplaces.
From data privacy to accommodating an employee with a disability, employers big and small have various employment law duties, most of which continue within the coworking space, and most of which apply regardless of the size of your operation.
Stay tuned for the next post in this series where I set out some strategies for managing employees in the coworking space.