Privacy and Porn on Workplace ComputersEmployees 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. 

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”

Can You Discriminate Against a Volunteer?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 transgender 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 will be 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 crystalCan You Discriminate Against a Volunteer? 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.

 

Mandatory Workplace Postings in Ontario - Lisa StamI 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 following 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.

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 Silicon-wannabes, or the sandwich-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 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.

I have questioned the teeth of the Accessibility of Ontarians with a Disability Act (“AODA”) in my past blog post, Where’s the Teeth?.

While the fines for non-compliance are huge (up to $100,000 per day – see section 83 of AODA Reg 191/11), the regime relies on the Ministry of Community and Social Services (the “Ministry”) to identify, initiate and enforce compliance, as there is no mechanism within the AODA regime for an individual to initiate an AODA complaint against one’s employer or an organization. In other words, an organization would have to somehow get on the government’s radar in the first place.

So how does an individual seek to enforce the standards for disability accessibility set out in AODA? Last fall, I was told by a representative at the Ministry that there is no gap as individuals can take their complaint to the Human Rights Tribunal of Ontario (“HRTO”). He further explained that the purpose of the AODA regime was to focus on compliance, not punishment, and that the Ministry will respond to patterns of a large number of complaints, but not necessarily individual, one-off complaints.

The HRTO’s “does not enforce the AODA”

Since AODA began applying to the public sector in 2010, we have seen about a half dozen HRTO cases involving both public and private organizations that refer to AODA as a floor or minimum standard of accessibility requirements an organization must meet.

However, in Bishop v. Hamilton Entertainment and Convention Facilities Inc., one of the few HRTO cases that have considered AODA this year, the HRTO declined to reference the AODA standards and concluded the following:

The Tribunal does not enforce the AODA. There is a statutory framework for Director’s orders and administrative penalties set out in the AODA at sections 21 to 25.”

As a classic example of weak facts impacting the law, in the Bishop case, the applicant was unable to establish any discrimination based on disability.  The applicant claimed that the manner in which the respondent company was attempting to enforce a debt against the applicant’s non-profit organization was discriminatory. He, in part, relied on AODA’s Customer Service Standard to argue that the company did not provide services in accordance with the standards outlined in AODA.

Ultimately, the HRTO held that based on the facts in this case, there was no link between the debt enforcement and his disability, and it dismissed the matter.

Is there a gap for individual disability rights?

In dismissing the matter, the adjudicator in Bishop concluded that the HRTO “does not enforce AODA”. This makes sense from a statutory perspective – the Tribunal is not referenced in the AODA legislation, and it is the Ministry of Community and Social Services that enforces the AODA regime as against organizations.

However, the Tribunal remains the “enforcer” of human rights standards for individuals in Ontario. The AODA legislation expressly states that in the event of any conflict between the AODA standards and the Human Rights Code, the higher standard will trump. Allegations of discrimination on the basis of disability remain squarely within the reach of the Tribunal.

What remains unsettled, is the extent to which the AODA standards will be referenced as the minimum standards required to be met to avoid a discrimination claim. Many had thought the AODA standards would become a kind of checklist or enumerated criteria that an organization must meet, something we began to see in the HRTO cases, Wozenilek v 7-Eleven and Polangio v Cochrane.

This would promote an objective component to the human rights regime that would no doubt be encouraged by disability advocates, and would frankly provide some clarity for organizations regarding accommodation, accessibility and how to avoid a discrimination claim.

Competing or Complementing Administrative Regimes?

The Bishop case is a relatively short, succinct decision without any detailed analysis on AODA. I hesitate to jump to any conclusions based on this one case, but I am certainly curious what sort of discussion is happening behind the scenes at the HRTO.

Is the HRTO prepared to absorb the AODA standards and become the “enforcer” of the standards for individuals? While the standards will not tie the hands of the HRTO, is there a reluctance to be the high profile interpreter of the standards? To what extent will the Ministry of Community and Social Services look to the HRTO for guidance on interpreting its own standards?

It will be interesting to see how the caselaw develops given the distinctly different mandates of the two respective administrative bodies.

In the meanwhile, given the huge fines for non-compliance, employers are best off to continue to work towards AODA compliance, while being prepared for individuals to use the AODA standards as, at the least, a reference point in individual discrimination claims at the HRTO.

For more info on AODA, here are some of my past blog posts:

The Ontario provincial government just released proposed regulations for the accessibility of the built environment. The standard introduces various amendments to AODA’s Integrated Accessibility Standard (Reg 191/11), including the introduction of the new Part IV.1, entitled Design of Public Spaces Standards (Accessibility Standards for the Built Environment).

The new Standard will only apply to new construction and planned redevelopment, and will primarily apply to the public sector and to large organizations (i.e. organizations with 50 or more employees in Ontario). The proposed standard would come into effect on January 1, 2013.

Public Comment

The government is inviting public comments by October 1, 2012, by emailing comments to designofpublicspaces@ontario.ca.

Highlights of the New Proposed Standard

Private sector organizations will have to meet the requirements regarding “public spaces” that are new or redeveloped on or after January 1, 2017 (large organizations) or January 1, 2018 (small organizations).  

While “public space” is not defined, the proposed regulation sets out requirements for the following areas:

  • Recreational trails/beach access routes
  • Outdoor public-use eating areas like rest stops or picnic areas
  • $(document).ready(function () { // toggles the slickbox on clicking the noted link $(‘#two’).click(function () { $(‘#dtwo’).toggle(); return false; }); }); Outdoor play spaces, like playgrounds in provincial parks and local communities         $(document).ready(function () { // toggles the slickbox on clicking the noted link $(‘#three’).click(function () { $(‘#dthree’).toggle(); return false; }); });
  • Exterior paths of travel, like sidewalks, ramps, stairs, curb ramps, rest areas and accessible pedestrian signals         $(document).ready(function () { // toggles the slickbox on clicking the noted link $(‘#four’).click(function () { $(‘#dfour’).toggle(); return false; }); });
  • Accessible parking (on and off street)         $(document).ready(function () { // toggles the slickbox on clicking the noted link $(‘#five’).click(function () { $(‘#dfive’).toggle(); return false; }); });
  • Service-related elements like service counters, fixed queuing lines and waiting areas         $(document).ready(function () { // toggles the slickbox on clicking the noted link $(‘#six’).click(function () { $(‘#dsix’).toggle(); return false; }); });
  • Maintenance

Proposed Private Sector Requirements

Many requirements will primarily fall within the public sector’s mandate. Beach access routes, playgrounds and recreational trails are likely not on your corporations to do list. Other requirements, however, will also fall within the private sector’s responsibility.

Some examples include:

  1. Exterior Paths of Travel – large organizations will have to meet the Standard’s requirements for functional exterior paths of travel that are outdoor sidewalks or walkways designed for pedestrian travel, but not intended to provide a recreational experience.
  2. Parking Lots – all organizations both large and small must meet the requirements for off-street parking facilities. Interestingly, however, there are exemptions to these requirements, including that the requirements do not apply to parking facilities that are used exclusively for employees, buses, delivery vehicles, police, ambulances or impounded vehicle lots.
  3. Service Counters & Waiting Areas – all organizations both large and small must meet the requirements for any new or redeveloped service counters, fixed queuing guides and waiting areas. As a specific example, when providing a new or redeveloping an existing waiting area, where the seating is fixed to the floor, three per cent of the new seating must be accessible, but in no case shall there be fewer than one accessible seating space.
  4. Other Requirements:  large organizations will have to meet various specific requirements in the public space, such as for ramps, handrails, slopes, landings and stairs. Such requirements include slip resistant surfaces, specified slopes, specified minimum width and length of ramps, curves on ramps, the minimum risers in stairs, etc.

Small vs Large Organization Requirements

While most of the requirements apply to public sector and/or private sector large organizations (50 or more employees in Ontario) only, a few of the requirements also apply to small organizations (1-49 employees in Ontario). Most notably, small organizations must meet the parking facilities, service counter, fixed queuing guides and waiting area requirements.

For example, if you own a small family-run mechanics shop with less than a dozen employees, you will still need to ensure the customer waiting room meets the accessibility requirements in the Standard.

More Info on AODA

For more background on AODA, feel free to visit my past blog posts on the subject:

·       AODA for Employers Part 1:  Customer Service Standards

·       AODA for Employers Part 2:  Integrated Accessibility Standards

·       AODA for Employers Part 3:  Where’s the Teeth?

 

How will the new Proposed Standard effect your organization?

 

For any fellow space geeks out there, the last few week have been a very exciting NASA adventure, with Curiosity landing on Mars and transmitting amazing photos back to earth.  Videos and photos of the NASA employees erupting with joy after the 7 minutes of silence during the landing were very moving.  I love such great news stories.

Employers can learn a lot from NASA as an employer.  I say this not just because I’m going to be an astronaut when I grow up and want to suck up to my future employer, but also because NASA has managed to nail on the head the use of social media in the workplace – at least it so appears to a mass consumer like me.

Simon Houpt wrote a great piece in the Globe & Mail the week of the landing setting out the ways that NASA employees have successfully used social media to discuss and promote its workplace activities.

From the Twitter feeds (@MarsCuriosity, over a million followers), to Facebook, to the personable interviews generating great social media content, NASA has generated an online buzz through its own employees.  This includes spin-off NASA related online conversations, such as the entertaining Twitter feed of @SarcasticRover (e.g. “I just did my first geological survey of Mars… most rocks are undecided, but still plan to vote. Go Democracy! #curiosity2012).

NASA employees engage with the public (i.e. the customer, client, audience) directly through tweets, blog posts and interviews.  NASA has cut out the middle person and encourages the press to directly access NASA’s own media sources, rather than farming out the information through a third party.

I realize most employers do not have an annual budget of $18 billion, or the universally known and valued brand that NASA enjoys.  I also suspect NASA’s main recruiting “problem” is which super smart and capable applicant to choose from.

Even given those obvious advantages, the fact remains that NASA has a very important brand to protect.  How do you do that if your employees are tweeting at will with no central control?  It’s the ongoing debate of spending lots of the marketing budget to create a globally recognized, unified brand and voice, while figuring out how to engage in social media, which involves an inherently individual voice and effort.

In NASA’s case, perhaps it’s an elaborate internal marketing strategy to appear to be giving their employees free reign on social media, while in fact only tightly controlled and pre-approved content providers are seemingly tweeting at will.  I’ll let you know when Starfleet Academy – I mean, NASA – hires me on.

Every organization has its own mandate around sensitive information, controlling its brand, and dealing with a broad range of employee literary and social media skills – from the Law Society, to a military defence manufacturer, to a non-profit religious charity, there will be no one-size fits all.

The lesson from NASA, however, is that even a large, high profile, globally branded enterprise with presumably plenty of sensitive and confidential information has managed to allow the individual voices of their employees to be heard online – and concurrently, to have a personable corporate social media voice.

 

Terminating an employee’s employment without cause in Canada comes at a price. The various employment acts and codes set out the requirements for termination notice or pay in lieu of notice (and in Ontario and federal workplaces, severance pay in addition to termination pay). The required termination period will range from 1 to 8 weeks, depending on the length of service of the employee, and depending on the province (plus severance pay, if applicable).

But what are an employer’s obligations during the notice period besides payment of wages?

The Statutory Requirements

Employment statutes in Canada require an employer to payPhoto by Striatic at http://flic.kr/p/mhpdd wages/salary for the notice period, as well as to continue benefit contributions. In Ontario, the Employment Standards Act requires an employer to continue the employee’s wages and terms of employment, and to:

“continue to make whatever benefit contributions would be required to be made in order to maintain the employee’s benefits under the plan until the end of the notice period.”

Notice period obligations, therefore, include the payment of whatever benefits the employee was otherwise entitled to, including benefits such as group health care and dental premiums, life insurance, LTD, STD and travel insurance. When crafting a termination package for an employee who has been terminated without cause, the package must include the continuation of benefits throughout the statutory notice period.

The problem employers run up against is to what extent will the insurance companies continue to insure benefits after an employee is no longer “actively” employed. Most seem to recognize the statutory obligations for general benefits like health care and dental, but some do refuse to insure the bigger ticket items like LTD or life insurance after an employee’s last day of active employment.

At the end of the day, it is the employer who is obligated to provide benefits during a notice period, not the insurer. The insurer is simply obligated to satisfy the terms of the contract between it and the employer.

And then there’s the Common Law

The gap between what is required and what is actually insured during the notice period becomes even greater for the common law notice period. The employment statutes set out minimum employment standards. The courts will almost always award significantly more damages than the statutory minimum for a wrongful dismissal (i.e. a termination without cause without notice).

For example, a judge would award a 62 year old supervisor with 15 years service at the company damages of many more weeks than the 8 weeks of termination pay and 15 weeks of severance pay required under the Ontario statute. Assuming no other issues such as age discrimination (unlikely!), the notice period would probably be in the range of at least a year, and possibly more given the age of our hypothetical employee.

Assuming that the notice period is a year in this example, the case law makes it clear an employer is required to make the employee whole for the entire year’s notice period. In other words, the employee will be entitled to whatever she would have earned had the termination not occurred. This includes for example, any regularly scheduled wage increases, any non-discretionary bonus tied to company performance, and the continuation of all benefits.

The Insurance Gap in the Case Law

If the insurance company refuses to continue to insure the terminated employee beyond the 8 weeks statutory notice period, the employer is on the hook if our hypothetical terminated employee needs to access the benefits in weeks 9-52, after the statutory termination notice period expires.

As an example, in Alcatel Canada Inc v Mary Egan, the Ontario Court of Appeal upheld the notice period of 9 months awarded to a director-level, senior management employee with 21 months service (she was induced from prior employment). The employee was terminated without cause on July 3 as part of a mass termination, and on November 27, she was diagnosed with a major depressive disorder, which the court held had commenced on October 1. The statutory notice period was long over when the disability arose, and all benefits, including the STD and LTD benefits were canceled at the end of the statutory notice period. The employee was denied disability benefits when she applied during the common law notice period because the coverage had already been canceled.

In that case, a particular problem for the employer was that the STD and LTD policies provided that the employer, not the insurer, determined when coverage was to be terminated. The Court of Appeal upheld the trial judge’s finding that because the disability arose during the notice period, and because the employer “wrongfully discontinued her coverage prior to the onset of disability”, the employer was therefore liable for any resulting loss. The employer was liable for the value of the disability benefits that would otherwise have been paid – not just the benefit premiums.

Also important to note in this case was that the employer’s obligations actually exceeded the awarded notice period. The court held that the employee was entitled to recover damages for the entire period of disability, regardless of when the notice period ended. In this case, the disability ended when the employee recovered 6 months after the notice period ended. The end result was that the employer was found liable for $146,825.98, plus costs of $25,000 to the plaintiff employee.

The employer got lucky here. Had the employee not recovered from her disability, the amount would continue for that length of time the insurance policy would have covered her, had the policy not been terminated during the notice period. This employee was 40 years old – there could have been another 25 years of liability.

In Brito v Canac Kitchens, the employee became permanently disabled and did not recover. After 24 years of service, the employee was diagnosed with cancer at age 55, deemed totally disabled by his doctors, and was awarded the LTD benefits he should have received had the benefits not been canceled at the end of the statutory notice period. The court awarded the employee damages for lost income for 22 months, STD benefits for 17 weeks, and LTD benefits thereafter to age 65, plus costs of $20,000. Again, the employee was awarded not just the benefit premiums, but the cost of the benefits themselves for over 10 years.

Penny Wise Pound Foolish

I find some employers are reluctant to continue the “expensive” premiums during a notice period and are willing to gamble that their otherwise healthy and vibrant employee will stay well. But should anything happen to your terminated employee during the common law notice period, as the above cases indicate, those premiums all of a sudden look like a bargain.

Contracting out of the Statute

A proactive way to avoid the above scenarios is to enter into an employment contract when the employee starts. While this doesn’t solve the problem with your 20 year employee who started at the company before you started using employment contracts, it does provide clarity for new and future employees. The vast majority of employment law cases are a dispute around termination entitlements, and a reasonable and clearly drafted termination provision can usually avoid the problem upfront.

Provided the parties exceed the minimum statutory standards (i.e. provide more than the termination and severance payments set out in the statute), the termination provision can carve out and contain the entitlements on termination. For example, if the contract provides three weeks of salary for every year of service, it is permissible for the contract to then provide that benefits will cease two months after the last day of active employment.

But should you contract out of providing benefits during the notice period?

As long as the provision in the employment contract exceeds the statutory minimum, freedom of contract prevails. From a practical point of view, however, if the insurance company permits, providing benefits during the full contractual notice period is often highly desirable for the employee, especially if he or she has a family or is older and has some health issues.

Continuing to pay monthly premiums may be a small price to pay for a cooperative former employee who doesn’t try to challenge the contract on some other basis, who is able to leave the workplace with certainty around their family’s benefit coverage, and is able to deal with a medical emergency that may arise following termination while looking for a new position. This will particularly be a big selling point for older employees given the end of mandatory retirement in Canada.

Ultimately, it will be a matter of choice and market demands when entering into the employment contract upfront, well before the parties are contemplating any health issues.

How does your workplace deal with benefits during the notice period?  Is it standard to offer, or do employees have to bargain for it?  

[As with all of my posts, the above is not legal advice, but rather, legal information.  As soon as benefit insurance issues are involved, there are many caveats, contractual exceptions and contextual variations to many situations.  If benefits coverage is a specific issue for you, before making any decisions regarding termination, I would contact your workplace insurance company to clarify what are the policy’s terms and conditions.]

Disclaimer: This material is being kept online for historical purposes. Though accurate at the time of publication, it is no longer being updated. The page may contain outdated information.

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.

Last week, the Human Rights Tribunal released a very interesting decision in which discriminatory comments made by a union president on the union’s blog raised the issue of competing human rights – namely the right to be free from discrimination in the workplace vs the right to freedom of expression and association: Taylor-Baptiste v. Ontario Public Service Employees Union

The case turned on two issues:

(i)               whether the union president’s blog posts were work-related and captured by the Human Rights Code’s right to be free from discrimination “in the workplace” and/or “in respect of employment” (they were not); and

(ii)             whether the union’s right to freedom of expression and association trumped the manager’s right to freedom from discrimination (yes, it did in this context).

Facts

In this case, a female manager claimed that the union’s president was posting discriminatory comments about her on the union’s blog. There was no dispute in the decision that the comments were discriminatory:  references to her sleeping to the top, having “intimate knowledge of another deputy”, suggestions that the manager had only obtained her position through sex, and that if she didn’t know the answer to something so simple, she should call her “boyfriend” over at his office.

The comments were made on the blog during heated collective bargaining in the fall of 2008. The union president states that the purpose of the blog was to communicate to the union membership, particularly in light of the ongoing negotiations. It was apparently a widely read blog in the workplace.

The union argued that the comments on the blog were not “in the workplace”, while the manager argued that the blog was an extension of the workplace, and that social media are integrally woven into the fabric of the modern workplace.

Competing Rights

The Ontario Human Rights Code prohibits discrimination “with respect to employment” and “in the workplace” as follows:

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

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, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

[emphasis added; provisions are as amended since the case was heard]

It is important to note that the manager filed the claim against the union and the union president only. The employer was not named. This impacted the analysis as to whether discrimination occurred “with respect to employment” and/or “in the workplace”.

Were the Blog Posts “In the Workplace”?

In deciding upon the application of section 5(2), the adjudicator, David Wright, concluded that the blog posts were not conduct “in the workplace”:

[25]  I agree with the applicant that employers can discipline employees for actions they take in cyberspace, and that the Code may apply to workplace-related postings on the internet.  It is not open to serious doubt, in my view, that in 2012 postings on blogs and other electronic media may be part of or an extension of the workplace and that the Code may apply to them.

[26]  However, I agree with the respondents that in the circumstances of this case, the blog comments themselves were not harassment “in the workplace” under s. 5(2). They were made on a blog identified with the union that, although open to the public, was directed at communication between union members and their leadership. There is no evidence that Mr. Dvorak made the postings while at work for the employer. There may be circumstances in which postings in cyberspace are sufficiently connected that they are “in the workplace”. However, even giving them a broad interpretation, the words of s. 5(2) cannot apply to this blog, given the context.

There are plenty of examples where online conduct, such as comments on Facebook or a blog, gets pulled into the workplace as a disciplinary offence. In this case, however, the adjudicator allowed the employee to wear two different hats, and contextualized the comments accordingly.

Thus, while wearing his union president hat, the respondent could post on the union blog comments that were directed to union members. Whether or not the comments were discriminatory or harassing, the comments were not made “in the workplace” and so not captured by section 5(2) of the Code. This was so, despite the union president being an employee in the same workplace as the manager about whom he was blogging discriminatory comments.

Were the Blog Posts “In Respect of Employment”?

Section 5(1) of the Code has a broader application. It will capture issues around a generally poisoned workplace, not just specifically targeted conduct. In this case, because the manager did not name the employer (i.e. the party who had the primary power to address a poisoned workplace), the analysis became limited to the union and its president’s responsibility and liability.

Ultimately, the adjudicator held that the comments were made in the course of the blogger’s duties as the local union president, and that his comments on management were protected by the Charter of Rights and Freedoms:

Fundamental Freedoms

2. Everyone has the following fundamental freedoms:

(a)

freedom of conscience and religion;

(b)

freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c)

freedom of peaceful assembly; and

(d)

freedom of association.

            [emphasis added]

The comments were limited to a couple of posts within one month, in the midst of a large volume of other posts about the ongoing bargaining. The manager was unable to prove that the online comments had specific reverberations in the workplace, although the manager pointed out her resulting stress and use of the employee assistance plan.

This case pits the manager’s right to freedom from discrimination against the union president’s right to freedom of expression.

In resolving these competing interests, the adjudicator looked to the nature of the comments themselves, finding that they focused on labour-management issues such as genuine concerns around nepotism and updates on the contract negotiations in play at the time, albeit using sexist language while doing so. The adjudicator held that the comments were:

“analogous to comments on labour-management issues made at a union meeting or a union newsletter. Comments on such issues are at the core of the constitutional protections of freedom of association and expression and the union’s right to operate independently of the employer.”

The blog comments were characterized as advocacy on behalf of union members by a local union president, and as such, held to be protected by the Charter right to freedom of expression and association (see Ontario (AG) v Fraser, 2011 SCC 20).

In this circumstance, core Charter rights and freedoms trumped over the Code’s rights to freedom from discrimination.

Context Does Matter

People often describe online comments as having the same exposure as an employee shouting out comments in the hallways of the workplace. A public comment is a public comment. This is apparently not the case, and context really will matter.

While post-modern Gen-Yers who continue to carve out their online rights will no doubt roll their eyes and sigh, “Duh!”, the rest of us over 35 will be a little surprised that discriminatory comment about a manager posted on a public blog is okay.

Social media continues to push the envelope on what is appropriate “public” commentary, what is workplace conduct, and what is personal vs professional. This decision moves the discussion forward on what is protected online free speech for unions.

Disclaimer: This material is being kept online for historical purposes. Though accurate at the time of publication, it is no longer being updated. The page may contain broken links or outdated information.