PHIPA Fines in the Workplace

Photo Credit - Brandon Morgan

Photo Credit – Brandon Morgan

This spring the largest penalty to date was issued under Ontario’s Personal Health Information Protection Act (“PHIPA”). A social work student was convicted of accessing personal health information without authorization, and ordered pay a $20,000 fine and a $5,000 victim fine surcharge after pleading guilty to “willfully accessing the personal health information of five individuals.”

The breach took place in Goderich, Ontario’s prettiest town, where the student was completing a placement with a family health team. The student also admitted that she had accessed the personal health information of 139 individuals, including that of her family, friends, local politicians and the staff of the clinic. No doubt she had an interesting time doing so, but this fine sends a strong message that employees must keep their curiosity in check. Previous fines include two in the amount of $2,505, which were issued 2016 to two hospital workers in connection with breaches of former Toronto Mayor Rob Ford’s health information during his cancer treatment.

In our digitizing and digitized workplace privacy is always a hot topic, but privacy laws in Canada remain spotty. Currently broad privacy legislation only applies to the federal sector workplaces (banks, tele-com, shipping, mail etc.) via the Personal Information Protection and Electronic Documents Act and the Privacy Act. In Ontario, health information is governed by PHIPA, but most other workplace related information is not subject to any regulation.

Despite the lack of clear legislative guidance in many arenas, employers should have privacy policies in place with respect to private employee and customer information. Policies should also specify consequences in the case of a privacy breach, or inappropriate employee snooping. Remember, there is now a common law tort of invasion of privacy, “intrusion upon seclusion,”  and clear policies and appropriate employee training will go a long way in protecting employers from the potential for vicarious liability.

As always, a balance must be struck between an organization’s need to collect, use and disclose personal information and an individual’s right to privacy.

Examples of good practices are:

  • Designating one person as responsible for personal information
  • Clearly identifying the purpose for the collection of information
  • Obtaining consent before information is collected
  • Collecting only necessary information
  • Disclosing and retaining information only as necessary
  • Employees must be permitted to access their own information

Millennial employees, who have grown up with social media, may have a different conception of privacy than that expected by the culture of the organization. Clear communication, and documentation, around what is expected is crucial.  

At SpringLaw, we regularly advise on privacy, technology and how to make workplaces work for everybody. If you think your workplace might need a privacy overhaul, or you just need some general advice, give us a call.


Pot in the Workplace

Photo Credit - Get Budding on Unsplash

Photo Credit – Get Budding on Unsplash

Marijuana has been legal for medical use since 1999. As you undoubtedly know, the Trudeau government has tabled legislation that would expand legal use to the recreational sphere. Employers need to be prepared for how the potential legalization of recreational marijuana will impact the workplace.

Background on the Bill

Here’s a little background on the Liberal Bill – Bill C-45, the Cannabis Act, was introduced by Minister of Justice Jody Wilson-Raybould (she’s from Vancouver) in April. In June it passed second reading and was referred to the Standing Committee on Health. The Committee is expected to begin hearings on the Bill in September.  Anyone wishing to participate in the process can make a submission to the Committee.

The Bill would allow for legal possession of up to 30 grams of cannabis by those 18 and older. Individuals will also be allowed to grow up to four cannabis plants in their homes, though these must be under one metre tall.  Because sale and distribution of marijuana will now be regulated, anything to do with illegal marijuana will remain illegal.

Impact in the Workplace

So what will this all mean for the workplace? Many employers will already be familiar with the need to accommodate the use of medical marijuana in the workplace, where an employee uses it to treat an illness or injury falling under the definition of disability in the Human Rights Code.

An addiction to marijuana can also fall under the definition of disability and require accommodation. This does not mean that employers must permit employees to be impaired by marijuana while at work – accommodation must always be balanced with safety, and is required only up to the point of undue hardship.

Practically speaking, employers need to be prepared to handle the presence of marijuana in the workplace. Employers should make themselves aware of the signs of marijuana impairment. Employees have never had the right to work while impaired, and the Cannabis Act won’t change that. Workplace policies may need to be amended. For example if a workplace policy prohibits employees from drinking alcohol on the job or at lunch, it will also need to prohibit them from using cannabis during work hours or on breaks. On the flip side, policies that prohibit recreational marijuana use, due to its illegality, will need to be updated.  

Monitoring Marijuana in the Workplace

Marijuana impairment can be difficult to detect, especially with the rise in popularity of odourless edibles.

Along with Bill C-45 came Bill C-46, which would change impaired driving laws in preparation for the legalization of marijuana. Testing for impairment by marijuana is tricky, as drugs metabolize differently from alcohol, and can remain detectable in the body long after the effects have passed. This is one of the reasons why the caselaw tends to treat the detection of drug and alcohol impairment differently. Bill C-46 would give peace officers the power to demand a bodily sample from drivers suspected of impairment.

I will address the nexus between recent caselaw on random drug testing in the workplace and the legalization of marijuana in a later post, as it’s sure to be a hot topic post July 1, 2018, the date Trudeau would like the new legislation to be in place.

Bill 148 Fair Workplaces Changes: Unionized Workplaces

Over the last several weeks I’ve laid out some of the changes that will affect workplaces governed by the Employment Standards Act, 2000 (ESA). In this post I’ll touch on how Bill 148 proposes to change the legislation that governs the business of unions, the Labour Relations Act, 1995 (LRA). Like the proposed changes to the ESA, the overall tone of these changes is pro employee/union.

Photo Credit - John Salvino

Photo Credit – John Salvino

Certification Process

Many of the changes involve the certification process, which is the process by which a workplace or group of workers becomes unionized. Certifications can be a shifty business, and historically both employers and employee organizers have been known to play dirty, or skirt the rules. The proposed amendments aim to combat some of these issues. Here are some of the proposed changes:

  • Under the revised LRA the Ontario Labour Relations Board (OLRB) would be able to order the employer to provide the union with a list of employee names and contact information, where the union can demonstrate that at least 20% of the organization’s employees are already members of the union. Having names and contact information would make the certification process easier for the Union;
  • Following certification, first contract arbitration would be streamlined and include a mediation requirement;
  • Certification in the temporary help agency industry, the building services sector and home care and community services industry would be “card-based.” Card-based certification, whereby employees express their wish to join the union by signing a card, is favoured by unions. In vote-based certification, employees sign a card and then a secret vote is held. Unions have argued that the time in between the signing of the card and the vote gives employers an opportunity to coerce employees into voting against unionization;
  • Under the proposed amendments, unions would be more easily able to certify where the employer engages in misconduct that contravenes the LRA;
  • The OLRB would have the power to conduct certification votes electronically and by telephone;
  • Labour Relations Officers would be authorized to give directions regarding the voting process to assure neutrality; and
  • Employers would not be able to discipline or discharge (without just cause) any unionized employee during the period in between certification and conclusion of the first contract.

Discipline/Discharge Freeze

Similar to the freeze during the negotiation of the first contract, employers will also not be able to discipline or discharge (without just cause) any unionized employee between the date at which the employees are in a legal strike or lockout position and the execution of the new collective agreement. Most collective agreements contain “just cause” protection, that does not allow employers to terminate employees but for “just cause.” This change extends that protection to periods where there is no collective agreement in force.

Successor Rights in Building Services

An interesting change relates to the extension of successor rights to instances where building services are re-tendered. Building services are services such as cleaning, food and security services. The change will make it easier for unions to retain bargaining units when work is re-tendered and a new provider chosen. For example, if unionized staff provide the security services at a building, when the security services contract is retendered any existing bargaining rights and collective agreements applying to the previous security staff will transfer to the new provider of those services. This could temper service providers, who do not have unionized employees from bidding on work in buildings with existing union relationships.

Structure of Bargaining Units

The proposed legislation would allow the OLRB to change the structure of bargaining units where one employer has multiple bargaining units, all within the same union.

In order for the OLRB to review and potentially consolidate bargaining units, the following conditions must be met:

  • The application requesting the review is made at the time of the certification application, or within the subsequent three months;
  • No collective agreement can have been entered into yet; and
  • The trade union certified, already represents employees of that employer in another bargaining unit.

Upon application, and if the above conditions are met, the OLRB would have the power to consolidate bargaining units, amend the description of the bargaining unit, direct which collective agreement will apply, with or without modification, and amend the collective agreement in order to ensure the consolidation works in practice.

The impact of this change will likely be that the OLRB will more easily certify small and fragmented bargaining units, which previously would not have been appropriate candidates for certification.

Notably, these new powers would not apply to the construction industry.

Return to Work from Strike

This proposed change would remove the six-month limitation under which striking employees can apply to return to work. Employers will be required to reinstate employees at the conclusion of lawful strike or lockout and employees will have access to arbitration if there is any refusal to reinstate an employee.

Maximum fines under the LRA would increase to $5,000 for individuals and $100,000 for organizations (up from the current $2,000 for individuals and $25,000 for organizations).

This concludes my series on Bill 148 for now. As always we will keep you posted as to what happens through the public consultation process and when the legislature gets back to work after the summer break.


Bill 148 Fair Workplaces Changes:  Scheduling, Leaves and Vacation

Photo Credit - Kazuend

Photo Credit – Kazuend

This is the third post in my series about the proposed Bill 148 legislative changes. In this post I discuss changes related to scheduling, leaves and vacations.   

Under the proposed changes employees will have the right to increased workplace flexibility and increased leave entitlements. Let’s take a look at the breakdown of these expected changes.


After three months of continuous employment, an employee can request a schedule or location change without fear of reprisal. If the employer wants to deny the request, they are required to provide reasons for the denial. A discussion of the request with the employee is mandated in any case.

Vacation Entitlement

Under the current Employment Standards Act, 2000 employees are entitled to a minimum of two weeks vacation, regardless of seniority. Bill 148 would amend this vacation entitlement provision to increase entitlement to three weeks for employees with five or more years of service to the employer.

Leaves of Absence

The Bill proposes increased entitlements to various forms of leave. Unpaid family medical leave would be increased from up to eight weeks in a 26-week period, to 27 weeks in 52 week period.

A proposed new section of the Employment Standards Act, 2000 would establish an unpaid leave of up to 104 weeks in the event of the death of a child. Under the current version of the Employment Standards Act, 2000 the employee’s entitlement to leave ends, rather harshly, at the end of the week in which the child dies.

The current 52 week entitlement to leave for the crime related disappearance of a child would also increase to 104 weeks. Presently there is a 104 week entitlement where a child dies as a result of a crime.

Personal Emergency Leave

Under the current version of the Employment Standards Act, 2000, personal emergency leave is required to be provided only by employers with 50 or more employees. The changes proposed by Bill 148 would make this leave available to all employees, regardless of employer size. The leave entitlement would include the first two days of the present ten day entitlement be paid days.

Personal emergency leaves can only be taken for a prescribed list of reasons. These include death, illness, injury, or medical emergency related to the individual, an immediate family member, or a dependant family member. The Bill would expand the current list of reasons to include the individual or a family member experiencing sexual or domestic violence, or the threat of sexual or domestic violence.

While employers can ask for evidence to support an employee’s personal emergency leave, they will not be permitted to require a certificate from a qualified health practitioner.

Public Holidays

Under the proposed amendments, Family Day, as an official public holiday, will move from O. Reg 185/01 to be included under the definition of Public Holiday in the Employment Standards Act, 2000. It will continue to fall on the third Monday in February. The rules about public holiday pay are also proposed to change with respect to how the pay is calculated, and with respect to the substitution of a different day off for the public holiday.

In my next post I will cover more of the proposed changes, including those related to unionized or union vulnerable workplaces.

Bill 148 Fair Workplaces Changes: Wages

Photo Credit - Fabian Blank

Photo Credit – Fabian Blank

Last week I posted about Bill 148. In this post I will discuss some specifics of the proposed changes related to pay. The Bill proposes several changes that will affect how much employees get paid.

Minimum Wage

Perhaps the most wide sweeping change will be the proposed increases to Ontario’s minimum wage. General minimum wage is currently $11.40 per hour and there are different minimum wages for different classes of workers, such as students and servers. Bill 148 proposes increasing the general minimum wage to $14.00 per hour on January 1, 2018, and then to $15.00 on January 1, 2019, followed by annual increases at the rate of inflation.

Equal Pay for Equal Work

Pay rates will also change based on the equal pay for equal work provision of the Bill. These will affect pay for those in more precarious employment positions such as temporary, casual and seasonal employees if they are doing the same job as full-time employees. The same thing goes for employees from temporary help agencies performing the same job as permanent employees at the agencies’ client company.

Practically this means that employees will be able to request a review of their wages if they believe they are being paid differently than full-time or permanent employees. Employers will be required to respond to requests for pay review either with a pay adjustment, or an explanation for the difference. Pay differences will be acceptable if they are based on relevant factors such as seniority, or if pay is determined by another metric such as quantity of production. Reducing the rates of regular employees to bring everyone in line will not be a legal way to comply with this proposed section.

Overtime Pay

This change will apply where an employer has one employee with two different jobs, and where the rates of pay for the two jobs are different. The hours worked in both jobs will be counted towards total weekly hours with respect to the overtime threshold. So for example, let’s say Barb is a pizza delivery person, and also sometimes works in the kitchen. She gets paid a different rate for each job. If Barb works 30 hours in the kitchen and 20 hours delivering pizza she will be entitled to overtime pay for any hour above the threshold, based on the combined hours in both of her jobs. She will be entitled to pay at one and one-half times the regular rate for the work performed during the overtime hours. This change could mean more money going towards wages for small businesses who have employees wearing many hats.


The new scheduling provisions call for minimum pay for shifts under three hours, minimum pay for being on call, and the right to three hours of pay if a shift is cut short or canceled without 48 hours notice. In all of these situations employers will be required to pay the employee for a minimum of three hours, even if they were on call and not called in, were called in for less than three hours, were scheduled for a shift of less than three hours, or had their shift cut short.

Notice Pay for Temporary Help Agency Workers

Employers who hire temps for assignments of three months or more will be required to provide them with one week’s notice or pay in lieu if the assignment is terminated before the end of the estimated term. There is an allowance for mitigation, where notice will not be required if the employee if offered another assignment, lasting at least one week.

I will discuss Scheduling, Leaves & Vacations in my next post.

Introduction and Economic Viability of Bill 148

Photo Credit - Viktor Forgacs on Unsplash

Photo Credit – Viktor Forgacs on Unsplash

I posted in May about upcoming reforms to Ontario’s workplace laws and you’ve likely heard other rumblings in the employment and HR world about Bill 148, known as the Fair Workplaces, Better Jobs Act, 2017. Early in June the first reading of the Bill was carried, the second reading discharged and the Bill referred to the Standing Committee on Finance and Economic Affairs. The Committee is now tasked with examining the economic impact of the proposed changes, something that may be on many employers’ minds. The Committee will be holding public consultations across the province during the month of July. Those interested in participating in the process can find more details here.

What has many employers concerned is that the changes proposed by the Bill largely favour employees. Premier Wynne has said that the changes are intended to address the new realities of working in Ontario brought on by technology, increased automation and the rise in precarious contract, freelance and part-time work. Critics think that the workplace changes could decrease the attractiveness of Ontario to businesses looking to expand operations or set up shop. For example the Ontario government reports that should the Bill pass, more than a quarter of Ontario workers will receive a pay hike due to the increase to the minimum wage.

On June 7 Alberta passed new workplace legislation, similarly designed to make workplaces more employee friendly. It will be interesting to watch how these changes play out. But are economic growth and improved rights for employees mutually exclusive? Premier Wynne thinks not. I guess it depends what side of the fence you sit on.

Ontario lawmakers are on summer recess until September 8, with January 1, 2018 being the proposed effective date for most amendments it’s expected that the Bill will be finalized some time this fall.  

In the next series of posts I will address the specifics of the Bill and what changes will mean for Ontario workplaces.

Employee Engagement in the Modern Workplace

Photo Credit - Daria Shevtsova

Photo Credit – Daria Shevtsova

I regularly speak on the issues of employment and human rights law, but it turns out that lawyers really do end up with a warped view of the world. 

Yesterday I spoke on a panel of HR and people-management thought leaders: David D’Souza, Anna Petosa and Shaun Scott, moderated by Chris Taylor of Actionable. I was the only lawyer on the panel, which makes sense since lawyers are not typically people-management thought leaders.  In fact, I was surprised at how divergent some of our views were.  

The modern workplace requires innovation, agility and creativity when it comes to employee engagement, learning and development, how to accept and embrace the high turnover, gig economy, and how to stop generalizing generations.  I agree with this, and believe an organization will only grow and thrive when it can figure out how to engage all individuals, not just certain demographics or generations.  

My co-panelists rightly emphasised the benefit of individualized and customized learning and development, the value of more frequent, less formal feedback, and the role of peer mentoring and review.  These aspects of a forward-thinking workplace each help with attracting talent, retaining that talent and infusing the organization with knowledge and expertise.

So what do you do when an individual employment relationship goes south?  This is where the dour lawyer comes in.  All those informal meetings providing career development feedback are great.  Are they written down?  Are expectations mutual, or is the organization inadvertently trying to use these interactions as focus groups for long term workforce development?  If so, are these conversations and the soliciting of what will engage and satisfy an employee creating expectations to which the employee believes they are now entitled?  When ideas are raised, are they agreed to, or do both sides of the table understand this may be just a brainstorming session? Is bespoke learning and development modifying the contractual relationship by adding on new duties, augmenting a role, providing greater responsibility – but no increase in pay?

I’m fully aware that these questions sound cranky and old-school.  I’m also fully aware that the vast majority of time, the benefits of sophisticated and deeper employee engagement outweigh worries of a future and possibly remote legal battle.

But – there’s always a legal but – I so often see situations that have unnecessarily become nasty and expensive for the employer, largely because of broken telephone, misunderstood expectations and most people’s preference to avoid conflict and difficult conversations along the way.  

A large global organization can absorb the cost of a very difficult termination. For a small employer, it can be devastating financially, from a time resource perspective, and general employee morale.  

There is great value in much more frequent, informal feedback designed to develop careers, not to build a case against an employee.  When a termination becomes unavoidable, however, a bit of evidence is awfully handy.  

True, companies shouldn’t organize their whole system around the rogue employee, and rather, should build systems that are based on trust and on the assumption that employees want to thrive.

All I suggest is that in the midst of embracing the modern workforce, that leaders also document mutual expectations to ensure clarity, to make sure everyone is on the same page.  A friendly follow-up email, a check-in through the company IM platform, or at the least, a follow-up discussion that references the agreed upon expectations, goals and deliverables will let everyone have the best of both worlds – regular check-ins AND clarity.  

What is a natural corollary of bespoke and individual learning and development and flexible job roles, is that we all have bespoke and individual minds that view the world from our own individual lenses.  It remains important to have a method to sort out the disputes that do occasionally arise from all those individual perspectives, while focusing on the engagement and development of the workforce generally.

Ontario Employment Law Reform on Horizon

Photo Credit - Alex Robert

Photo Credit – Alex Robert

The Ontario government has been reviewing employment laws and labour standards in Ontario, the first such major review since the mid-1990s. A package of reforms is expected to be released next week.  “Changing Workplaces” has been a two-year review, headed by outside experts Michael Mitchell and John Murray.  The Ministry of Labour’s website contains the interim report (its only 312 pages, if you’re looking for a good read) and details on the review.

Although not yet available to the public, some Canadian news sources are starting to report on the likely contents, including the Toronto Star and CBC.

According to the media reports, the Changing Workplaces will address widespread reforms, including:

  • Increasing minimum wage, up to $15 an hour (up from the current $11.40)
  • Dealing with the increase in precarious and temporary worker jobs
  • Requiring the same pay rate for employees in part-time positions performing the same job
  • Protection for independent contractors doing the work of an employee
  • Increasing the minimum paid vacation days per year
  • Introducing paid sick leave
  • Expanding emergency leave to employees at companies with less than 50 workers
  • Eliminating some of the current exemptions to expand certain worker rights
  • Increasing private sector unionization support
  • Expanding successor rights for unions

Stay tuned for more updates as the reforms are released.


Getting Sued by an Ex-Employee


What is an employer to do when served with a Statement of Claim?  Here are the most common questions we get:

  • Is a response mandatory or can we ignore the claim?
  • How do we get rid of this ridiculous claim?
  • How much is this going to cost?

Is a Response Mandatory?

Yes, an employer must respond by serving and filing a Statement of Defence.  The failure to respond will mean the court may deem all of the facts in the Claim to be true, potentially leaving the employer liable for the damages claimed by the plaintiff without putting a defence on the table.   

A company representative can pick up the phone and try to settle the matter in exchange for the ex-employee dropping the claim, but that has about a 1% chance of success.  Typically, the plaintiff feels he or she has already made significant efforts to settle the matter. By the time you get that Statement of Claim, the Ship of Amicable Settlement has probably already sailed.

For incorporated employers, it’s time to lawyer up.  Under the Ontario Rules of Civil Procedure, a party to a proceeding in the superior court that is a corporation must be represented by a lawyer, except with leave of the court (Rule 15.01(2)).

How Do We Get Rid of this Ridiculous Claim?

Employment lawyers are busy for a reason – there are two sides to every story, and especially emotionally driven stories involving a person’s livelihood, ego and career identity.  The best way to get rid of a ridiculous claim is to vigorously defend.  There are no short cuts prior to filing a Statement of Defence.  

Once the pleadings close (ie the Claim, Defence and Reply(s) are filed), there are some options.  The rules next call for an exchange of Affidavits of Documents (ie the evidence upon which a party intends to rely), but we’re seeing some parties in the employment law context push to mediation quickly, prior to the exchange of documents or examinations.  This has various pros and cons and should be carefully considered before trying to skip or defer the document disclosure and/or examination steps.

Another option is to bring a motion for Summary Judgement, arguing that there is no genuine issue for trial.  If there are any material facts to resolve, the motion is unlikely to be granted, and most employers are better off focusing on a strong defence than getting sidetracked by expensive motions along the way.

How Much is this Going to Cost?

Once an employer is dragged into litigation, there are inevitable costs including legal fees, court filing fees and general diversion of internal company resources to gather, compile and share relevant evidence with counsel.  

There are a couple of things a client can do to help contain their own legal costs.  First, write down a detailed chronology cross-referenced to the main documents.  Lawyers read faster than they can listen to an individual’s story, and it will always be a useful tool for everyone to refer back to.

The evidence gathering stage is not only one of the most critical stages, but can be the most expensive, other than trial.  Between documents, email, texting, and enterprise chats, there is more often a challenge with too much evidence to sort through, rather than not enough. Organizing this evidence in a methodical, clearly indexed system before handing it over to the lawyers can save a company a ton of legal fees. Always have a detailed discussion upfront about how your lawyer wants the information, what software do they use, are they paperless, and what are the key issues around which the evidence should be gathered.  

A final tip to help control the costs is to ask for an estimate of the different stages upfront. If your lawyer says it’s impossible to predict, ask for ranges for each stage of litigation.  If they relentlessly respond with “It depends/each case is different/yours is a unicorn”, then be prepared for a unicorn of a bill at the end.

A trial is rarely the right outcome for anyone but the lawyers, but there are many stages along the way that provide for good opportunities to clarify facts and drill down to the core dispute between the parties, facilitating a settlement that wasn’t possible prior to that claim landing in your inbox.

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.