Over the last few months, I have been working with a colleague from our IP practice group (Stephanie Vaccari) and from our Competition & Technology practice group (Arlan Gates) to develop a cross-disciplinary social media team at my office.  Together, we have been able to tackle social media issues from all angles, and to walk through client issues in a way that reflects business reality, namely that social media issues cut across all departments of an organization, requiring a wholistic approach to the problem.

And so, we have recently launched our Toronto office initiative, Social Media in Your Business.  We have put together a brochure outlining the broad ways that social media can impact your business, are hosting our first client webinar today (I’ll post the link when it becomes available), and will continue to collaborate to learn from each other and expand our collective wisdom on social media issues.  I’m looking forward to sharing more details as we continue to grow the initiative.

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 Though accurate at the time of publication, it is no longer being updated. The page may contain broken links or outdated information.

 

Over the last couple of months, there has been an interesting debate in Canada and the US about whether an employer can ask for a social media password. For some of the highlights of the conversation in Ontario, see:

South of the Border

The issue originally hit the headlines when the American Civil Liberties Union complained on behalf of a Maryland correctional officer.  The ACLU uploaded a video on YouTube and asserted that the employee’s privacy rights had been violated when his employer turned to the employee during a re-certification interview and demanded his Facebook password. Maryland has since passed the first US law prohibiting employers from demanding social media login information.

California, Illinois, Texas, Washington and New York have also introduced social media privacy bills, and earlier this week, the Password Protection Act of 2012 was introduced at the federal level to prohibit employers from demanding social media login information as a condition for employment.

So Should Canadian Employers Ask for Social Media Passwords?

At this point, only Nova Scotia has introduced a bill banning employers from asking for social media passwords.  The first reading was in April, so it is only in at the beginning of the process.

Last week, the Ontario Office of the Information and Privacy Commissioner introduced a guideline recommending against employers asking for social media passwords.  Other provincial privacy commissioners have published similar guidelines about social media background checks.

At this point, however, there is no specific law on the issue in Canada.

I personally come down on the side of those who see this as a very, very bad idea for employers to consider, and yet if an employer merely gathers the data and does nothing with it in Ontario, it probably isn’t a technical legal violation.  (See my blogs posts here and here on the privacy law gap for Ontario employee information.)

For provinces such as British Columbia, Alberta and Quebec with provincial privacy legislation, employee personal information has greater protections and asking for such information will likely cross the legal line.

Even in Ontario without specific protections for employee personal information, the problem is, of course, that for most employers, it will be very tempting to quietly pass on the candidate whose online profile indicates she is 4 months pregnant, highly politically charged, controversial, clearly a bit of a drunk (while pregnant!!), has sued her last 10 employers and believes working Friday afternoons should be banned in Canada. If the employer were conducting a regular interview, most of this information – some protected under the Human Rights Code, some not – would remain unknown until she starts running amuck in the workplace. I get why an employer would want to avoid the situation, but there are just too many landmines to worry about when demanding a social media password during an interview.

Terms of Service

The focus of the debate has been correctly centred on the discrimination and privacy concerns. Another issue receiving some, but not enough, attention is the extent to which the social media platforms themselves permit this use. Users enter into a contract with the social media in order to use their service. The services may be free, but no less legally binding.

By demanding that a candidate hand over his or her social media password information, an employer is asking that candidate to breach the terms of service with the social media provider.  Facebook itself issued a statement in March condemning the practice and advising users they should not reveal their login information.

The Facebook Statement of Rights and Responsibilities includes the following statements:

  • 3(5) – You [User] will not solicit login information or access an account belonging to someone else.
  • 3(10) – You [User] will not use Facebook to do anything unlawful, misleading, malicious, or discriminatory.
  • 4(8) – You [User] will not share your password, (or in the case of developers, your secret key), let anyone else access your account, or do anything else that might jeopardize the security of your account.

Not only is the candidate prohibited from sharing his or her password, but should the HR Manager conducting the interview happen to have a Facebook account, he or she would be violating the Terms of Service of his or her own account by soliciting the login information of someone else. Arguably he or she is doing so on behalf of the employer, so vicarious liability arguments could come into play. Should there be clear company policy prohibiting the practice, however, an employer could argue that the rogue HR Manager was acting beyond his or her duties.

Either way, it all gets so messy. Why ask for the hassle for information that is frequently inaccurate, dated and irrelevant, particularly when you usually cannot legally use the more juicy information in the first place?

Dan Michaluk’s Best Practices

If you do intend on asking for social media passwords, I suggest you review Dan Michaluk’s useful “employer-friendly” post on his All About Information blog, which includes the following best practices in managing the legal risks associated with conducting social media background checks:

  1. Check at the end of the hiring process. This is a background check, not an evaluative process. It should come as the next to last step in the hiring process.
  2. Check only when there is a demonstrable need. What’s the need? What are the alternatives? Why is this the better alternative? Document your needs analysis.
  3. Search based on objective criteria. It will be very hard to establish the validity of a profiling exercise – i.e., an exercise in which you attempt to draw broad inferences about job performance or trustworthiness based on social media activity. Unless you have a qualified expert prepare a defensible predictive model, don’t profile. Look for objective behaviors that raise legitimate concerns in light of job responsibilities. For example, you may look for statements that a candidate for a sales or marketing position has made critical comments about your company or industry that are incompatible with becoming a representative of the company.
  4. Have someone other than the decision-maker search. This is a means of ensuring that the decision-maker does not see irrelevant information that may be related to a personal characteristic that is protected by anti-discrimination legislation.
  5. Direct a written report to the decision-maker. The report (which contains only feedback on the objective search criteria) goes in the hiring file and is part of the formal record upon which the hiring decision is made. This record is designed to assist in the defence of discrimination claims and is a record of due diligence. It makes the actual (forensic) record of the internet search irrelevant to a discrimination claim, which should minimize e-discovery risks.
  6. Validate negative information. Positively identifying the author of internet publications can be difficult. Validate authorship and seek an explanation.

This Too Shall Pass

Given the number of legal and practical risks, employers should be careful what they wish for. Should you feel it essential to wade into this dodgy, dangerous water, be prepared for the potential consequences.

From what I can tell anecdotally, few employers actually ask for social passwords so let’s hope this pseudo-storm will pass over as we figure out how to integrate social media into the workplace in a manner that works for both employers and employees.

Are you an employer that finds it necessary to ask for your employee’s social media passwords?  I’d love to hear your perspective, given the prevalence of the anti-password and login information voice.

Last Thursday, the Ontario Office of the Information and Privacy Commissioner released its new guide for online reference checks.  In the face of the recent debates about whether an employer can request personal social media passwords during job interviews, the release of this document is quite timely.

The guideline is entitled, Reference Check:  Is Your Boss Watching?  The New World of Social Media:  Privacy and Your Facebook Profile.  The guideline reviews the various issues around online background checks, and provides a number of suggestions on how a candidate or employee can protect him or herself.

I attended the event last Thursday at which the Privacy Commissioner, Dr. Anne Cavoukian, unveiled the new guideline and discussed the various risks and problems associated with employers asking for social media passwords.  It will be a surprise to no one that she firmly opposes requiring a candidate or employee to provide their personal social media passwords, although her reasoning was based more on privacy principles than legal prohibitions, given the ongoing gap in privacy law for provincially regulated employees in Ontario.

In her speech, Dr. Cavoukian summarized five unintended consequences of requesting and obtaining a candidate or employees’ personal social media passwords:

  1. Accessing a candidate’s personal social media profile may lead to uncontrolled secondary use of personal data, such as data regarding a candidate’s friends and family.
  2. Once the employer is in the possession of the data, the employer becomes responsible for that data and assumes liability for the privacy issues regarding the data.
  3. An employer may lose out on qualified candidates who are deterred from applying for a position because of the employer’s practice.
  4. Possible loss of reputation of the employer.
  5. Costs of legal liability should a claim arise regarding the use of the information gathered during the social media background check.

Most of the consequences are focused on potential risk or reputational damage.  The reality is, given the privacy law gap in Ontario for non-medical employee personal information, any direct legal consequences are more likely to flow from the breach of a workplace policy, collective agreement, or contract (assuming one exists that speaks to the issue of privacy), than any specific law at this point.

I discuss the Ontario privacy law gap in an earlier post here.  Until the landmark Ontario Court of Appeal decision, Jones v Tsige, was released in January, there was no employee recourse, so it will be interesting to see how the new Guidelines will be used by adjudicators as a thought-piece and articulation by the Ontario Privacy Commissioner of what the law should be for Ontario employers.

 

As a nod to the increasing frequency and complexity of social media issues in the workplace, this year’s Law Society of Upper Canada’s Special Lectures is “Employment Law and the New Workplace in the Social Media Age”. As a two day presentation on April 25 and 26, 2012, the schedule presents a broad array of speakers and panelists, including several high profile speakers from Canada and the US.  This will no doubt be a comprehensive look at social media in the workplace.

I have the honour of joining Stuart Rudner and Ari Blicker on a panel chaired by Janice Rubin, taking place both on days to discuss the issue of “Professionalism Issues for Lawyers as Employees and Employers Using Social Media”.  

As we all start to jump into social media as a legal marketing tool, it raises many questions about client-solicitor privilege, inadvertently creating client relationships, disseminating legal advice vs information, how communications on an internal social media platform should be treated, and more.  In fact, in one of our prep calls, we had difficulties confining the broad range of professionalism issues into the two half hour sessions.  

Am looking forward to the discussions, and to meet many of my virtual colleagues in real life!   

More Info

In addition to the below info from an LSUC email, check out the LSUC link, and the uber-modern Law Society sources of information at the Facebook page, and follow the Twitter hash at #lsuclecture. The LSUC also has an app (!!) by going to http://m.guidebook.com/1654 on your mobile phone browser.

LSUC Email Info:

“The Game Has Changed. Are You Ready?  You can no longer afford to play by the old rules.
Register Today for the Special Lectures presentation of:

Employment Law and the New Workplace in the Social Media Age
April 25 & 26, 2012
Live in Toronto/Live Webcast

 

Law practitioners have long recognized the dangers that social media presents in the office. The safe move, in the early days, was to avoid it. That’s no longer an option. Social media is becoming as fundamental to the workplace as e-mail.

  • Do you have a social media policy?
  • Can you confidently advise your clients on their social media concerns?
  • Do you understand the issues raised by gaps in the law?

As part of our Special Lectures series, we’ve assembled lawyers, human resources professionals, as well as technology, security, and social media experts, to get you up to speed on employment law in the context of the social media age.

REGISTER TODAY (http://ecom.lsuc.on.ca/cpd/product.jsp?id=CLE12-0040899)

“LIKE US” on FACEBOOK for all the EVENT DETAILS AND INFORMATION OUR FREE SMARTPHONE APP http://www.facebook.com/pages/LSUC-Presents-Special-Lectures-2012/147382122047640

Follow the conversation about SPECIAL LECTURES 2012 on Twitter (#lsuclecture)

Follow us on TWITTER @LSUCCPD for the most up-to-date information on CPD events and resources. https://twitter.com/#!/LSUCCPD

To register for a program by phone please call 416-947-3315 or 1-800-668-7380 ext. 3315″

 

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.

Businesses do not experience the impact of social media in fragmented departmental silos. Rather, social media is an inherently cross-department, internal and external experience for most organizations. Employees, clients, third party providers, experts, consumers, journalists and competitors all participate in social media about your organization, whether or not invited to do so. And regardless of whether you are at a multi-national company, social media ignores borders and engages users from around the globe.

Depending on the business, the whole point is to broadcast your message as widely as possible. For others, it is an ongoing attempt to limit exposure and to retain confidentiality about products, developments or strategies.

Social Media is a People Issue

Addressing the legal implications requires the same sort of cross-discipline, cross-practice and cross-jurisdictional approach. But if social media doesn’t recognize departments, borders or realms of authority, why does it seem to be such a prevalent issue for employment lawyers in particular?

I had an interesting lunch with a partner in my firm’s Information Technology and Communications practice group last week. We agreed that legal issues involving social media tends to arise in the employment context more than any other area of law. I suggest that this is because the underlying purpose of social media is to connect people, not computers, issues, products, regulations or governments, making employment law the natural centre of gravity for social media issues.

While social media takes place on computers, it is not a computer issue. It is a people issue that flows from individuals communicating with each other about everything from what one had for breakfast to how to overthrow a government.

In the business context, problems arising because of social media use will eventually involve the HR manager who must deal with the human being that posted, tweeted or blogged out of line – or more optimistically, to reward the human being that created an exciting new opportunity for the company.

More than Messing Around at Work

In any event, we’ve moved past the basic time theft issue of people wasting hours looking at high school friends’ photos on Facebook during work hours (just discipline them as you would discipline the guy chatting at the water cooler too much).

The legal risks and opportunities of social media that impact businesses in all corners of the organization continue to grow in sophistication and diversity, notwithstanding that HR will inevitably deal with the aftermath.

Issues that businesses face include:

  • revealing business and trade secrets through social media
  • breaching privacy law
  • dealing with negative consumer comments that verge on defamation
  • meeting corporate social responsibility and stakeholder expectations through social media
  • breaching anti-spam legislation through enthusiastic social media
  • breaching professional regulations through social media information that has become relied upon advice
  • breaching advertising and competition regulations with online communications and contests
  • determining how and when evidence from social media can be preserved and used in litigation, and
  • how to ensure your third party providers comply with your social media policies and strategies.

The employment issues are similarly broad:

  • balancing the private and public, personal and work realms (about which opinions will widely vary depending on how old the employee is)
  • balancing employee freedom of speech vs the employer’s right to manage
  • ensuring workplace policies that touch on social media consider workplace culture, the organization’s branding and marketing strategies, any research and development employee agreements, general computer use policies, human rights and harassment policies, etc
  • director and officer liability issues around who is authorized to represent the company through personal or company social media
  • ownership of any Twitter lists, LinkedIn contacts, Facebook friends and other social media connections after an employee leaves the organization (see my post on Phonedog Noah)
  • online recruitment and what to do with the juicy Facebook dirt about prospective candidates
  • and at least 1,000 other issues that have come up in the social media context…

It is the cross-discipline, cross-jurisdictional nature of social media legal issues that makes the area so personally interesting. It gives me the opportunity to interact with the intellectual property, litigation and IT lawyers in the Toronto office of my firm, as well others in my firms’ offices around the globe (including participating on a panel on social media in our Tokyo office in April with lawyers from Chicago and Sydney).

If there was ever a truly global area of law, social media is it.

For anyone interested in an around-the-world overview of social media and employment law, feel free to check out the two articles I co-wrote last fall:

If you have encouraged your employees to set up a Twitter account to tweet information about the company’s business, who owns the followers if they leave? This is the question in Phonedog v Noah Kavitz, a California case that will no doubt have an impact in Canada.

Phonedog Noah

In that case, Phonedog encouraged its employees to use social media for marketing its cell phone products. One employee, Noah Kavitz, set up a Twitter account with the user name @Phonedog_Noah. He proceeded to amass over 17,000 followers.

After four years, the employee resigned, apparently on good terms, changed the username to his own name, and continued to send tweets to the followers. As of today, he has an impressive following of 24,398, an increase no doubt due to the publicity of this case.

[CASE UPDATE AS OF DECEMBER 2012:  The parties settled out of court and the terms remain confidential.  Unfortunately, we’ll have to wait for another case to make its way through the courts for a final decision.  The issues raised in the case, however, remain unsolved and of great interest to many workplaces.]

Employer Sues Noah

The employer then sued its former employee for continuing to use the Twitter account. The employer allocated a value of $2.50 to each Twitter follower and claimed damages of $340,000 for (1) misappropriation of trade secrets; (2) intentional interference with prospective economic advantage; (3) negligent interference with prospective economic advantage; and (4) conversion.

In November 2011, the employee lost his attempt to have the matter summarily dismissed, so there is still no final decision on the issue. We’ll have to wait for the case to make its way through the court systems.

For Noah’s side of the story, see Samantha Collier’s blog “Social Media for Law Firms” for an interesting interview with him, as well as a link to his CNN interview.

Commodification of Followers

This commodification of followers has led to a couple of interesting developments:

  • First, it generated a lot of funny tweets out there about striking it rich overnight because of Twitter follower numbers (as of today, I personally have another $1,430 to add to my kids’ RESP! Oxford here they come!);
  • It introduced a so-called “industry standard” of how much a Twitter follower is worth, although it remains unclear how the “industry standard” was arrived at, upon what research it is based and whether, in fact, their marketing folks just made it up; and
  • It has generated a lot of philosophical blog posts about whether we are all widgets to be traded electronically, or whether we are human beings with human relationships that should not come with a price tag.

Personal or Business?

One of the reasons attaching a price tag to people is distasteful in this context is that we all want to believe that social media is always about personal relationships, not deliberate, targeted marketing.

Social media is all about the individual voice. The marketing gurus have known this for a while, and deliberately get into the social media space to sell/place/plug a product by an individual. The Millennials are far too sophisticated to put up with blatant advertising at them. They want someone to share with them his or her individual opinion about a product or service, enabling the consumer to make decisions based on whatever level of trust or influence exists between the parties.

And so, Phonedog_Noah chirped to his followers about himself (to build trust) and about the product (to sell, as part of his job).

It is precisely the blending of personal and business that sells to Millennials and beyond, but it’s a pain in the neck for employment lawyers. Had Phonedog required its employees to set up an account for business purposes only, it would have a stronger argument that the followers were no different than a Rolodex or customer list, which an employee is not entitled to take with them when they leave a job.

On the other hand, social media is not as engaging, interesting or successful if it is a generic mantra from a company with no personal voice. The mix of personal and business may sell, but it creates a lot of ambiguity about who owns the results of the employee’s efforts.

Take-Away for Employers

Yes, I know I say this in virtually every blog post, but a good policy is key. If you have a workplace social media policy that clearly articulates where that line is between personal and business, then as an employer, you will be in a much better position to lay claim to the followers, friends, or connections that are generated for work purposes only.

The policy should require employees to separate the business and personal wherever possible. If you’re requiring your employee to participate on Twitter or Facebook, then have them set up both a personal and a professional account to keep the lines clear.

Among other things, the policy should also cover the standard provisions about whether the employee can engage in personal social media during work hours and what the employee is permitted to express about the company on any personal accounts.

It is also worthwhile for employers to think about the content of the employment agreement itself. If you know up front that social media will be a required part of a candidate’s job, laying it out expectations in a contract can save you some headaches down the road.

I have no doubt that a case like Phonedog will come to Canada at some point. Until then, we have no clear line about who owns the work product of social media. All you can do is remove as much ambiguity as possible through policies and communications.

And while you’re at it, have your marketing people talk to your HR people once in a while.

My thanks to my colleagues Maartin Vestering (in our Amsterdam office) and Justine Phillips (in our San Diego office) for bringing this case to my attention.

As of today, individuals can now sue for the tort of privacy in Ontario.   (Thanks to Professor Doorey for the heads up in a tweet and blog post this afternoon).

The new tort is based on the following statement:

One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his or her private affairs or concerns, is subject to liability to the other for invasion of his or her privacy, if the invasion would be highly offensive to a reasonable person.

Jones v Tsige

Today the Court of Appeal of Ontario released its highly anticipated decision in Jones v Tsige, which finds that an individual can now file an action with the court based on the tort of “intrusion upon seclusion”.

In this case, one bank employee named Tsige looked into the bank account of another employee named Jones (who became involved with Tsige’s ex-husband) at least 174 times over 4 years.  Jones sued, lost at trial and appealed.  The Ontario Court of Appeal awarded her $10,000 for the tort of intrusion upon seclusion.

Important Development in the Law

Previously, courts held that there was no right to an independent claim based on privacy, and that any privacy claims must be part of another claim, such as breach of an employment contract that contained a privacy provision.  Plaintiffs, therefore, required another underlying action in order to also address any privacy claims.

Furthermore, given that no privacy legislation applies to non-health related personal information in most private sector workplaces in Ontario, there has been a gap in the legislation that prevented employees from filing a complaint with the Privacy Commissioner.

See my post on Privacy in the Workplace 101 from last summer for more details on the gap.

Take-Away for Employers

Employees can now take their claims of invasion of privacy directly to court. While the Jones v Tsigecase involves two employees, there is nothing that prevents an employee from taking his or her employer to court over privacy issues.

In light of this very important development in the law, employers will want to consider whether their workplace policies, procedures and processes sufficiently address protection of privacy, now that employees have direct recourse in the courts.

Here are my last minute Clawbie nominations.  This year, there are way too many excellent Canadian legal blogs to choose from, so here is my unscientific and utterly biased criteria:

  1. Must focus on employment and labour law (because frankly, I rarely have time to read other blogs and wouldn’t have a clue anyway).
  2. Must be an individual’s blog, rather than a firm blog.  I prefer to get to know the voice, personality and perspective of the individual writing.  I also want to applaud the extra effort it takes for an individual to keep up the hard work without having the resources of ghost writers or a marketing department.
  3. I like frequent postings. This is my most hypercritical criteria, since I never blog as much as I’d like to.

My Top 3:

Doorey’s Workplace Law Blog – Lots of opinions, lots of passion and frequent, interesting updates on Canadian employment and labour law.

Quebec Labour Law -Gabriel Granatstein does a great job of regularly posting relevant, accessible and interesting blogs on Quebec employment and labour law. It’s a unique and valuable resource.

Canadian HR Law

Stewart Rudner’s blog posts in the HR Reporter website are a great source of employment law concepts and practice points.  As the king of legal social media in the employment realm in Toronto, Stewart is a great example of how to communicate, interact and relate to his audience.

Runner’s Up:

Human Rights in the Workplace

Donna Seale consistently writes interesting, compassionate, topical pieces.  She has told me that business was unusually busy for her this fall, so her posts are not very frequent, but are still great when she manages to fit it all in. I would have put her in the top 3 if she wasn’t such a successful, busy lawyer.

Watershed LLP

Michael Fitzgibbon has been a long-time blogger that provides brief yet dense posts that highlight new developments in employment law in an interesting, accessible manner.  His business model and approach to client fees makes him both a business and thought leader in our field.

Canadian Workplace Law

Greg Gowe’s blog has been around since 1997, long before most of us had heard of the word “blog”.  Based in BC, he provides diverse, frequent and current employment and labour law updates.

First Reference Talks

Yosie Saint-Cyr and her team of bloggers have become my go-to starting point on many issues.  In depth, timely and well written articles. Yes, I know this one doesn’t meet my second criteria, but it’s such a good blog and has a small team, and the posts still read with lots of individual personality.

Happy holidays everyone!

DECEMBER 31, 2011 UPDATE:

I am pleased to note that my blog has been selected for a 2011 Clawbies Award for one of the 3 best private practice legal blogs in Canada.  Thank you to everyone who nominated me, to those on the panel who made the decision, and to the readers who keep me on my toes!

This is Part 3 of my three part series on the Accessibility for Ontarians with a Disability Act, 2005.  In the first post, I discussed the Customer Service Standard and in the second post, I outlined the Integrated Accessibility Standards.  Both standards are regulations under AODA and set out further detail on the requirements of businesses and workplaces to become accessible for individuals with a disability.

AODA Penalties for Non-Compliance

What are the penalties for failing to comply with AODA?  While AODA lays out the basic framework for how the compliance mechanism will be set up, the details are in the Integrated Accessibility Standard.  The compliance provisions expressly apply to both the Customer Service Standard and the Integrated Accessibility Standard.

In short, organizations can face fines of a daily penalty up to a maximum of $100,000 against the corporation and $50,000 against an individual, in addition to other non-monetary remedial penalties permitted by AODA.

Under AODA, inspectors have the authority to carry out an inspection by entering a business without a warrant, and may require production of documents or data, and/or interview any person present in the business on matters relevant to the inspection.

Where’s the Teeth?

AODA’s objective is to encourage corporate compliance. There is no individual complaint mechanism set out in AODA, and the Ministry will not be pursuing individual complaints about an AODA violation.  The Ministry may, however, look into patterns of complaints about certain organizations, but again, with a view to the organization complying, rather than a focus on prosecution.

Where we will see all the action for individual complaints – and for the respondent employers – is at the Human Rights Tribunal of Ontario.  For anyone with an individual complaint about his or her ability to access particular goods or service in Ontario, he or she can file a discrimination claim at the Tribunal.

AODA specifically provides that any law (e.g. the Human Rights Code) that imposes a higher level of accessibility shall prevail, and the Human Rights Tribunal continues to issue awards upholding the paramountcy of the Human Rights Code.

Because the AODA standards came into effect for the public sector in 2010, we are already seeing cases come out of the Tribunal that cite AODA and its regulations as the minimum accessibility standards that organizations should meet.

Human Rights Tribunal Case Law

For example, in Palangio v Cochrane (Town), the employer was ordered to pay $10,000 to a town counselor because of the manner in which the council addressed (or initially, failed to address) his requests to record the council meetings due to his low hearing.  In that case, the fellow council members suspected he was leaking details to the media and refused his request.  Among other things, the Tribunal held that the town of Cochrane failed to train its employees on how to deal with AODA complaints.

As with so many discrimination cases, the process and method of communicating with individual complainants remain key issues that trigger awards.  For example, in Wozenilek v. 7-Eleven Canada Inc., the Tribunal awarded an individual who uses a wheelchair $6,000 because his local Seven-7 convenience store dilly-dallied in installing an automatic door device.  The Tribunal specifically cited the AODA standards and held that while the Customer Service Standard didn’t kick in for private sector businesses until January 1, 2012, Seven-7 knew it was coming down the pipe, has the deep pockets to install a relatively inexpensive device, and was contemplating doing so anyway.  It was the failure to respond to the individual in a timely, effective manner that likely tipped the balance the most.

Take-Away for Employers

While the AODA feel-good compliance framework may not sound very threatening, employers must be aware of the likely increase of discrimination claims at the Human Rights Tribunal.  It may prove to be a better use of resources to comply up-front, rather than waiting for an individual to complain about their inability access your goods or services, or for an employee to file a claim for discrimination in the workplace.

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.

I jumped into blogging in 2009 and have been grateful for the opportunity to participate in the online conversation about the workplace, employment law, and social media in general. 

We continue to be in a technological revolution that has forever changed how we communicate to each other – or at the least, for you cynics and/or technophobes out there, has added an additional layer of opportunity that lets us each reach out to people we would never have met a decade ago.

Lexblog, the back-end publisher of my blog, recently wrote an article that touches on why I blog.  My thanks to Nick Shekeryk, who took the time to pick up the old-fashion phone and call me.  For anyone out there considering whether it’s worth the effort, I can tell you that I’ve met a lot of generous, helpful and smart people through blogging.  Yes, it’s led to clients, but of more value to me is the connection to people all around the continent and beyond as a result of our borderless online world. 

For any newbies looking for employment law blogs, the Justica.com blawg search is a great starting point.

And for readers interested in Canadian law blogs, it’s Clawbies time again!  The nomination process for the Canadian Law Blog Awards is not only collegial and fun, but a great way to find out what blogs are out there.  I encourage everyone to keep an eye on the Clawbie website, and if you’re on Twitter, follow the discussion with #clawbies2011.