Recently, a reader asked me whether cutting back the hours of a department of hourly paid employees by about 5 hours a week for a few months would create any problems. She correctly identified constructive dismissal as the issue to consider.

What is Constructive Dismissal?

“Constructive dismissal” is when an employer unilaterally makes such substantial changes to the employee’s contract so as to breach the terms of the contract, amounting to an indirect termination.

For anyone who has seen the movie Office Space (and everyone absolutely should), dear Milton is the classic case of constructive dismissal. Rather than firing him – or for that matter, trying to figure out what he actually did at the company, since he had been laid off a few years earlier, but continued to be paid through a payroll glitch – they gave him progressively demeaning conditions of work to the point where they relocated his office to a corner of the basement with leaky pipes, no phone or stapler, and piles of boxes and supplies around his desk.

With slightly more precedential weight, the oft-cited Supreme Court of Canada case, Farber v Royal Trust Company explains constructive dismissal as follows:

24.  Where an employer decides unilaterally to make substantial changes to the essential terms of an employee’s contract of employment and the employee does not agree to the changes and leaves his or her job, the employee has not resigned, but has been dismissed.  Since the employer has not formally dismissed the employee, this is referred to as “constructive dismissal”.  By unilaterally seeking to make substantial changes to the essential terms of the employment contract, the employer is ceasing to meet its obligations and is therefore terminating the contract.  The employee can then treat the contract as resiliated for breach and can leave.  In such circumstances, the employee is entitled to compensation in lieu of notice and, where appropriate, damages.

Practically speaking, an employee traditionally had to repudiate the revised terms by leaving the job and then sue for damages after the fact.  The risk to an employee is very high, since they may be resigning from an employer who in fact had no intention of firing him or her, but rather, simply made some changes to the business about which the employee was unhappy.

Recent Developments

This area of the law is evolving, and some recent cases suggest an employee may be expected to stay on to mitigate his or her losses while looking for another job if the atmosphere is not hostile or embarrassing (e.g. Evans v Teamsters Local Union No. 31).  As well, in Wronko v Western Inventory Service Ltd, the Ontario Court of Appeal held that simply providing notice of fundamental terms may no longer be sufficient to avoid a claim of constructive dismissal.

The Employment Standards Legislation

The Ontario Employment Standards Act provides that constructive dismissal is a “termination” under section 54 if:

56(1)(b)    the employer constructively dismisses the employee and the employee resigns from his or her employment in response to that within a reasonable period.

An employer found to have constructively dismissed an employee is therefore liable for the same statutory termination and severance pay amounts as required for general terminations.

Examples of Constructive Dismissal

In addition to the demeaning actions against Milton, examples of constructive dismissal include:

  • unilaterally revising an employee’s contract to introduce a very narrow termination clause without consideration (i.e. without something in return, such as a bonus payment);
  • revising an employee’s job description to remove significant aspects such as supervising a team or leading an important ongoing part of the business; or
  • moving an employee from a corner office to a cubicle.

More obviously, any decrease in compensation usually triggers the risk of constructive dismissal.  Examples include:

  • moving an employee from straight salary to a lower salary with commission;
  • changing positions into a lower pay scale;
  • transferring an employee to a jurisdiction with a higher cost of living but no salary increase;
  • removing a car bonus; or
  • cutting hours.

Can you Decrease a Department’s Hours?

So what about slightly decreasing an entire department’s hours temporarily? This is a common strategy in our struggling economy. Assuming the department is not comprised of only one, otherwise poor performing or problematic employee, and assuming the decrease is small and temporary, a department-wide slight and temporary decrease of hours based on an objective business decision should be fine. Yes, there is a risk, but not significant, primarily because no individual is being targeted.

In addition to whether an individual is being targeted, the caselaw looks at the impact on the employee’s wallet at the end of the day. Very generally, if the decrease or change in compensation scheme amounts to an overall compensation cut of over 10%, you can be sure there is a constructive dismissal claim. Anything under 5%, particularly if backed up by objective, strong business reasons, is usually okay. The 5-10% range enters into a danger zone, and will depend on the context and surrounding factors in each situation.

Of course, all of the above is subject to any terms or conditions found in an employment agreement that speaks to the company’s right to make changes to the position in question.

Tips for Employers

Communication is the key. Employees know the economy is still tough, and most would prefer a job with small modifications than to have no job at all. In my experience, constructive dismissal claims arise more from an employee who felt pushed out, hurt and angry, rather than any true complaint of a decrease in salary or responsibilities.

Communicate the business reason for the change and provide as much notice as the business can bear. Reassure the employee(s) that the company is happy with his or her work, but is forced to make some hard business decisions. Study after study shows that employee satisfaction is based more on being valued and playing a meaningful part of the organization than on whether he or she receives a 50 cent raise this year.

And for goodness sake, try and avoid issuing a press release the next day that reports the company is enjoying an excellent quarter and top bonuses are scheduled to be paid to management as a result of top profits.

If you, in fact, have every intention of pushing an employee out the door and hope that he or she will quit so you are off the hook for termination and severance pay, you may want to rethink your strategy.  Aside from issues of workforce morale and employee productivity, particularly nasty constructive dismissals may also face the risk of bad faith damages.

How has your workplace been dealing with the ongoing recession crunch?  Any tips you’d like to share on how your organization has creatively weathered the storm?

 

While we may share a love of hockey, beer and Justin Bieber, there remains many intangible cultural and legal differences between Canadian and US employment law.  Given the global nature of most of the clients I work with, I frequently advise US employers on the subtle – and sometimes not so subtle – distinctions between our legal landscapes.

Here are a few of the more common questions:

1.  Which laws apply to our Canada-based employees?

It will depend on which province the employee works in, as well as the type of industry.  Section 92(13) of the Constitution Act, 1867 lays out the list that divides the powers up between the provinces and the federal government.

Keep in mind the context of when and where this list was made:  in 1867, Canada (finally) became a country, there were only four provinces (the largest of which was a French, Catholic population), and there was a quasi-alcoholic anglo prime minister in Ottawa (which was essentially in the middle of the forest to avoid attack by the Americans) who was trying to hang on to the areas that would consolidate political power, while encouraging economic growth and political support in the regions.  So, railroads, banks, postal service, telegraphs, shiplines and the military, for example, are governed by the federal government.

“Property and civil rights”, however, falls under provincial jurisdiction, and over the years, has been read more and more broadly, contributing to the growing decentralization of powers since the country’s 19th century birth.  To make a long constitutional story short, labour and employment falls under this category, so that by default, the provincial laws usually apply (unless your industry was useful to the federal government in 1867, as per preceding paragraph).  Wikipedia has an article on Canadian federalism if you are keen to know more.

2.  There is no “at-will” employment in Canada?  I can’t just fire anyone I want??

Actually, employers can usually fire all they want, but it will be very, very expensive.  The biggest difference between US and Canadian employment law is that we do not have “at-will” employment north of the border.  Every employment relationship is deemed to be based on an employment contract.  An employer breaches the employment contract if it terminates an employee without sufficient notice, giving rise to an entitlement to the employee for damages.

3.  Isn’t the employment contract just the signed agreement between the parties?

No, the employment contract can be express or implied, written or oral, and ultimately, all workplace documents, handbooks, policies, offer letters, etc. form part of the terms and conditions of employment.  Employees can therefore initiate legal claims for promises made in any of these workplace documents, such as benefits, compensation, and vacation days.

4.  Why should an employer bother making an employment agreement?

While employees can rely on the employment agreement to enforce rights, by far the most important advantage to employers is to limit the scope of the package upon termination.  While an employer cannot contract out of the minimum requirements set out in the various employment law statutes, the parties can agree to cap such payments slightly above the statutory minimums.  It also enables the parties to articulate other workplace expectations such as compensation, vacation, hours of work, reporting structures and other factors important to a particular workplace.

5.  There’s no employment contract, so why do I have to pay termination pay?

Welcome to Canada!  Land of the termination payment!  All Canadian jurisdictions have employment law statutes that set out the minimum notice an employer must give an employee if it wants to end the employment contract.  An employer can instead pay out that notice, provided the minimums in the statute are met.

In the absence of an employment contract that contains a termination provision, on top of the statutory minimums, the courts will award a “common law” amount.  This is the amount that adjudicators over the years have awarded to employees above the statutory minimums.  Thus, an employer can pay out the statutory minimum only, but the significant risk is that the employee will take his or her termination letter to a lawyer, who will advise that the employee should sue for the amount above the statutory minimums.

This area is by far the greatest source of employment litigation in Canada.  Typically, a plaintiff lawyer will first take a look at any of the employment contracts to see what can be attacked and rendered void to get access to the “common law” damages, so it is always a good idea to seek legal advice when both drafting the original employment contract documents, as well as when developing a termination package for an employee.

6.  One of my employees is not working out.  Can I fire her and give working notice instead of a termination payment?

Employers must either provide sufficient notice (i.e. “working notice”), or make a payment in lieu of notice that required notice.  Some employers want to give notice that the position will end in X weeks, and then expect the employee to remain motivated, loyal and cheerful until that end date.

See my post from July 2010 on working notice – I’m not a big fan for all kinds of practical reasons, most of which turn on the reality that most do not want to keep working when they’ve just been fired.  More often than not, it will be cheaper, less hassle and less risk to your business information and operations to simply pay out the employee and have a clean break.

7.  “My employee takes SO much vacation – like, 3 or 4 weeks a year!”

This is actually an exact quote from one client.  Again, welcome to Canada!  While we are no France, it is quite standard to take at least 3 or 4 weeks a year.  And yes, women tend to take more than 3 hours off for maternity leave.  And heck, occasionally men do too.

8.  Can a salaried employee claim overtime pay?

Entitlement to overtime pay is based on the tasks performed in the job itself, not whether the employee is categorized by an employer as salaried or hourly.  Typically, all employees are entitled to overtime, unless an exemption (such as managerial employees) applies.  The exemptions are generally applied more narrowly than the US overtime laws.

9.  Where are all of your class action suits?

While class actions for employment claims are nowhere near the popular vehicle that they are in the US, there have been a number of claims in Canada, particularly dealing with overtime and with pension/benefit issues.  Individuals have a number of employee-friendly avenues of recourse in Canada, so it’s unlikely we’ll see the heavy use of class actions as a legal vehicle up here anytime soon.

10.  Does everyone speak French in Canada?

Non, pas tout le monde parle le français au Canada.  Okay, I admit that no client has ever asked me this, but I do get questions about managing a workplace in Quebec.  Let’s just start by saying that Quebec, Canada’s French speaking province, is different than any other place on earth.  Quebec has some of the oldest, deeply held culture on the continent, which, as an aside, is partly why there continues to be such a robust, home-grown music and arts scene in Montreal.  Who doesn’t love Arcade Fire, after all?

Quebec continues to comprise of approximately a quarter of the Canadian population, and yes, pretty much everyone in Quebec speaks at least conversational French.  Immigration, sign and education laws all foster the use of French throughout the province.

In addition to a language difference, Quebec’s legal system is based on the civil code, rather than the common law.  While overall the approach to employment law is similar, there are always unique nuances that require the expertise of a bilingual lawyer called to the bar in that province.  (And yes, there is such an expert a few doors down from me in my office, if you should require such expertise.)

11.  What’s up with the Queen?

Yes, statistically, many Canadians (mostly outside of Quebec) still love the Queen, who technically remains the head of Canada.  We went wild when Will and Kate visited us this past summer.  I recently heard that the magazine Hello Canada (which is clearly a front for the Monarchy) is the second highest selling magazine in Canada.  We’re a generally non-rebellious, rule-following culture up here.  The Queen and her matching hats and handbags make us feel good and proper about the universe.

12.  Did you guys really burn down our White House?

Yup, on August 14, 1814 – the only time a foreign power occupied the US capital.  To be fair, the US started it, burning and looting York (now Toronto) in 1813.

 

To my US readers, this FAQ list is just a starting point for discussion.  Please feel free to send me your questions about expanding into Canada and/or about handling HR issues in Canada.  I’ll continue to add to this list as they come in.

 

This is Part 2 of my three part series on the Accessibility for Ontarians with a Disability Act, 2005.  In my first post, I discussed the Customer Service Standard, which was passed this summer and requires the private sector to comply by January 1, 2012.

In this post, I outline the AODA Integrated Accessibility Standards, which set out further detail on the requirements of businesses and workplaces to become accessible for individuals with a disability.

The Integrated Accessibility Standards is divided into 5 parts:

  1. Part I – General: addresses the general purpose of the Standards, and general requirements regarding accessibility policies, plans and training.
  2. Part II – Information and Communication Standards: addresses requirements around accessible formats of documents such as training material and websites, as well as laying out requirements regarding service animals and communication supports.
  3. Part III – Employment Standards:  lays out accessibility requirements during specific stages of the employment relationship such as recruitment, return to work processes, performance management and career development.  This part also lays out requirements regarding emergency response information.
  4. Part IV – Transportation Standards: lays out accessibility requirements for transportation providers such as bus and taxi businesses.
  5. Part V – Compliance: lays out the compliance requirements for both this standard, as well as for the Customer Service Standard.

What to do by January 1, 2012

By January 1, 2012, all employers with at least one employee must provide individualized workplace emergency response information to employees who have a disability, if:

  1. the disability is such that the individualized information is necessary; and
  2. the employer is aware of the need for accommodation due to the employee’s disability.

As with other situations requiring accommodation, employers need not be clairvoyant and detect undetectable disabilities in the workplace.  While employers must be observant of reasonably obvious disabilities in the workplace, employees are similarly required to voice their needs and to actively and meaningfully participate in dialogs concerning their own workplace accommodation.

Take-Away for Employers

For most employers, Part II and III will require the most effort to become compliant.  The deadline to comply is staggered over the next several years, primarily between 2013-2021.  While that sounds like a lot of lead time, some items will require significant effort. 

For example, as I discussed in a post this past summer, the website accessibility standard will require "large organizations" (employers with 50 or more employees) to ensure all website content conforms with the WCAG 2.0 Level A.  If you don’t know what that means, you probably want to simply outsource through your IT department.

Another area requiring some lead time to prepare are workplace policies.  As with most aspects of Canadian employment law, much will turn on your organization’s policies.  AODA lays out general requirements for workplace policies.  While many workplaces already have policies that address anti-discrimination or disability, few will have the layer of detail required by AODA, let alone written accessibility programs to implement and train on the policies.

Finally, the Employment Standards (Part III) will have an impact on your organization’s recruitment process.  Application forms, selection processes, and communications with successful applicants will all require certain steps to ensure accessibility.  Additionally, if you are part of the growing world of online recruitment, you’ll need to ensure your content on Facebook, LinkedIn, your website and any other social media platform "notify" the public, applicants, and employees of the availability of accommodation.

Stay tuned for my next AODA post, which will look at the enforcement and compliance issues associated with the standards.

 

 

 

Today the Supreme Court of Canada will hear a highly anticipated case on Canada’s freedom of religion and speech laws.  The case involves Bill Whatcott and his passionate, public promotion of anti-gay and anti-abortion views, all in the name of his religion.

Kirk Makin provides a good summary in today’s Globe and Mail.

Whatcott’s Case

A prostitute in his youth, Whatcott found religion and, apparently, also found a hateful perspective on some of the issues that tend to push the buttons of Canadians.  In 2005, the Saskatchewan Human Rights Tribunal ordered Whatcott to pay $17,500 to four individuals after he put anti-gay leaflets in their mailboxes.  In February 2010, the Tribunal’s decision was overturned, and today, the parties will make their arguments to the SCC.

The case will turn on whether Whatcott’s flyers contravened section 14 of the Saskatchewan Human Rights Code:

14(1) No person shall publish or display, or cause or permit to be published or displayed, on any lands or premises or in a newspaper, through a television or radio broadcasting station or any other broadcasting device, or in any printed matter or publication or by means of any other medium that the person owns, controls, distributes or sells, any representation, including any notice, sign, symbol, emblem, article, statement or other representation:

(a) tending or likely to tend to deprive, abridge or otherwise restrict the enjoyment by any person or class of persons, on the basis of a prohibited ground, of any right to which that person or class of persons is entitled under law; or

(b) that exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground.

(2) Nothing in subsection (1) restricts the right to freedom of expression under the law upon any subject.

Clear as mud:  you cannot publish or display anything hateful to another person’s dignity, but nothing in the provision restricts the right of freedom of expression.

Freedom of Expression

So do Canadians have the right to say hateful things?  While the US speaks of “free speech” as a religion in of itself, in our land of the Charter of Rights and Freedoms, we can say anything we want, “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.

Clearly, a PR firm did not write our Charter, but it does provide a more sophisticated, albeit complicated approach to the issue of free speech.  This is not, and never will be, a black and white issue.  As a society, we want to deal with discrimination and hateful comments effectively.  However, although I may think Whatcott has archaic and ridiculous views about being gay or a woman’s right to make choices about her own body, I do feel uncomfortable shutting him down completely – that really is a legal dictatorship that relies on mortal law makers getting it right in the first place.

Freedom of Speech in the Workplace

Having said that, I do believe that placing some limits on free speech in the workplace makes sense.  Employees come to work and require a space to thrive, and to keep the company productive.  Unlike the choices we can make outside of the workplace, an employee cannot escape, or choose to sit at a different table at the restaurant client meeting, or choose a different co-worker to share an office with, or decide to not interact with a department that promotes hateful comments about him or her.

The workplace is a confined space, a micro-environment, that requires a common workplace culture to promote employee buy-in and sense of belonging, to keep everyone productive.  If your employees have nutty views – or hateful views – on the big ticket issues, the workplace is not the venue to push the envelope on freedom of speech.

Workplace policies, having your managers lead by example, openly supporting employees you see may be targets of intolerant comments and behaviours are all common sense necessities to balance our society’s right to free speech in the workplace.

Have you had any recent experience with “free speech” issues in the workplace?  Have you run across any innovative ways to deal with it?  I’d love to hear from you.

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.

The Accessibility for Ontarians with Disabilities Act (“AODA”) has been around since 2005, but the specific obligations for employers do not start to kick in until 2012.  This is the first of a series of blog posts I will be writing to discuss the requirements of AODA for employers.

AODA lays out the general framework for ensuring Ontario businesses and workplaces are accessible to people with a disability.  The Regulations made under AODA lay out the details of specific requirements to comply with AODA.  So far, there are three Regulations:

  1. Accessibility Standards for Customer Service, Reg. 249/07
  2. Exemption from Reporting Requirements, Reg. 430/07
  3. Integrated Accessibility Standards, Reg 191/11

The main requirements are in the first and third Regulations, with the Employment Standards set out in detail in the third Regulation, the Integrated Accessibility Standards.  This post will discuss the first Regulation, the Customer Services Standards.

Customer Service Standards

The first regulation outlines the requirements for businesses to ensure customers can access their goods and services.  The public sector had to comply by 2010 and the private sector must comply by January 1, 2012.

The specific requirements include:

  • establish policies, practices and procedures governing the provision of goods or services to persons with a disability;
  • permitting the use of service animals and support persons;
  • notifying the public if there is a temporary disruption of goods or service;
  • ensuring your staff are trained about the provision of goods and services to persons with a disability;
  • establishing a process for receiving and responding to feedback about the manner in which you provide goods and services; and
  • ensure the format of documents that you are required to provide to a person with a disability is in a format accessible to that person.

Several of these requirements are common sense items that most business probably already meet, such as allowing a service animal into your store.  Others, such as training and establishing a feedback process may require more pro-active steps.

Because the public sector has already had to comply for a year and a half, there are plenty of helpful resources out there, including detailed guides on the Ontario government website.

Tricky Areas for Employers

While most employers are happy to get behind the concepts of the Customer Service Standards, I’ve had some clients raise concerns about both the cost and the logistics of compliance.  For example, the cost of providing a large amount of materials in Braille can be prohibitive for a small business or even a large business that runs at a low profit.

The purpose of the legislation is to ensure the parties involved discuss accessibility, that those requiring accessibility are included in that dialogue, and that alternative formats and approaches are considered.  Nowhere, for example, does the legislation require that all businesses must always produce a Braille version of their materials, a prohibitively expensive proposition for some businesses.

Rather, if a customer requests an accessible format, the provider of goods and services “shall give the person the document, or the information contained in the document, in a format that takes into account the person’s disability”.  In a restaurant, for example, the “format” could include simply reading the menu out to the customer.  Braille documents are expensive to produce, and frankly, many people who are blind or have low vision either don’t read Braille or prefer other formats.

The point of the legislation is to not assume and to ask the person affected.  Having said this, employers should expect to shoulder the cost of accessibility when required to do so.

Take Away for Employers

The Customer Service Standard focuses on your company’s obligations to customers and members of the public, not on your obligations as an employer to your employees.  The main obligation that impacts the employment relationship will be the training requirements.  Staff must “receive training about the provision of its goods or services to persons with disabilities”.

A good example of where this amounted to litigation and a $10,000 award against the employer is in the case of Palangio v Cochrane (Town) 2011 HRTO 1491, issued by the Human Rights Tribunal of Ontario last month.  In that case, the applicant was elected as a member of the Town Council who made a request for certain tools, such as permission to record meetings, to enable him to better hear the debate in council meetings.

He was initially denied the request because other members of Council believed he was in fact attempting to surreptitiously record the meetings for ulterior purposes.  The Tribunal held that the ability to replay meetings was directly related to his disability of low hearing.  One of the findings of the tribunal was that the employer should have trained its staff (i.e. the other members of council) on how to deal with requests for accessibility.

While AODA does not provide a direct complaint system for individuals (more on this in a future post on AODA’s teeth), individuals can take their concerns directly to the Human Rights Tribunal.  It is at the Tribunal where we will continue to see AODA act as a minimum floor above which employers must comply.

Has your workplace run into any particular challenges with preparing for AODA compliance?  Any unique obstacles you are facing at this point?

Stay tuned for my next posts on the AODA Employment Standards and whether AODA has any teeth…

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 have recently had the honour of being nominated for the LexisNexis Top 25 Labor and Employment Law Blogs of 2011.  Despite even LexisNexis spelling “labour” incorrectly, I feel quite humbled and privileged to be included on the list.

My Shameless Plug

Now for my shameless plug – LexisNexis is inviting readers to visit their site and vote on the nominations to determine who will be on the final list.  Every comment posted on their Labour and Employment Law Community page (where the nominees are listed) counts as a vote.  It takes less than a minute to post the comment.

At the very least, it’s a great excuse to see what other employment law blogs are out there – most are US based, so it’s an opportunity to expand beyond the Canadian market.

End of shameless plug.  To anyone who does post a comment as a vote, thank you very much.

Excellent Canadian Blogs

The LexisNexis list focuses on the US, but there are a number of excellent Canadian blogs that I read regularly and should have made the list:

…and many more that I know I have inadvertently missed.  Feel free to email me if you think I should have added another to this list.

SEPTEMBER 13, 2011 UPDATE:

Thank you to everyone who kindly took the time to nominate my blog.  I’m happy to announce that the blog was selected as one of the LexisNexis Top 25 Labor & Employment Law Blogs of 2011.  I appreciate the support and remain humbled to be included on the list.

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.

For all you poor souls at a beautiful cottage this hot, sunny summer with nothing better to do but read about employment and human rights law, here’s a brief list of good reads to consider (and with everyone now using some sort of tablet, you can download the info before heading up to the lake):

  • Think Before You Click:  Strategies for Managing Social Media in the Workplace:  this is a great compilation of many of the big US thinkers in the area, including Molly Di Bianca (Deleware Employment Law Blog), Eric Meyer (The Employer Handbook Blog) and Daniel Schwartz (Connecticut Employment Law Blog).  I follow the tweets and blogs of these three lawyers regularly.
  • Donna Seale’s – weekly Twitter Talk:  if I only have a few minutes to spare for social media reading, I usually start with Donna’s Human Rights in the Workplace blog and tweets.  Her Twitter Talk is a great compilation of employment and human rights law tweets.  She’s out of Manitoba, with a Canada-wide focus that’s always timely and interesting to read.
  • Of course, the First Reference blog is a key resource with several contributors and daily content.  They are an HR publishing company, but their material never reads like an ad for their services – it’s good substantive content.
  • Zinio – a colleague recently pointed this app out to me.  I suspect I am the last in Toronto to have heard about it, but it’s a great source of digital editions of a large selection of magazines.  It works beautifully on my iPad.

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.

Good employers always conduct a reference check to determine whether to hire a candidate.  With the world of online communications, however, how far should an employer go when researching the background of a potential candidate?  At what point does that legitimate research become inappropriate snooping into a person’s private life?

I posted on the topic of social media in the workplace last February, and continue to get questions about what social media information an employer can use.

It’s Good Practice to Do a Social Check

Doing some amount of a social check on a candidate is a good practice.  You want to know if your candidate is publicly racist, overly opinionated about his supervisors, or parties a little too hard on a school night.  A basic Google search will pull up most of the LinkedIn, Facebook, Twitter or blogging presence.  It’s free and not overly time consuming.  If nothing else, it will provide a glimpse into the candidates’ general judgment on public comments.

Leave it to the Experts?

Companies are now starting to pop up that specialize in gathering social media and online information about candidates.  One US example that has been in the news lately is Social Intelligence.  While the extent of online information it can dig up has led some to question whether it is going to far, it does appear to remain within legal parameters.  As discussed on the Workplace Privacy Blog, in the US, the Federal Trade Commission recently indicated that “employers that rely on a social check service, like Social Intelligence, to search social media for information about job candidates must comply with the Federal Credit Reporting Act.”.  According to the Federal Trade Commission, Social Intelligence does comply, presumably giving the green light to other similar companies.

In its Factsheet on Privacy and Social Media in the Workplace, the Privacy Commissioner of Canada does not reject the use of social media resources for employment purposes, but does warn that employers should not use the information in a discriminatory manner towards potential candidates.  For example, if you see that a candidate “Likes” a page on mental health issues, the CNIB or a women’s rights organization, it could be discrimination to pass the candidate over on that basis.  This falls in line with the various Canadian human right commission policies on discrimination in the workplace.

Of course, most employers would not expressly admit that they are not hiring a candidate because of the person’s race, gender, or perceived disability, but there is no doubt that the information gathered in a social check would influence a hiring decision.  That is the point of the reference check, after all.

Be Careful What You Wish For

The problem with a social check is whether you can rely on the information you dig up.  A general rule I have is that if the employee wrote the information him or herself, you’re probably good to go.  If they were drunk when they sent out that tweet, then, well, perhaps they should have thought twice – the old “don’t drink and dial” rule is transferable to the online world.

While employers will want to pause to ensure the information is actually posted by the person (as opposed to posted by someone else on their Facebook wall), I say that that information is probably fair game for an employer to take into consideration (with all the usual caveats about not relying on information in a discriminatory manner).

If, however, the information is posted by another person about the candidate, then employers should pause to consider the weight of the information.  Is the information posted by a bitter ex-spouse?  An angry teenage daughter?  A drunk friend who thought it was funny at the time?  Whether a deliberately false statement or an innocently incorrect one, social media checks need to proceed with caution to ensure any employment decisions are based on hard facts, not one or two potentially incorrect or “funny-at-the-time” comments.

Sidenote: The Social Checks Can Bite You Back

As a side note to employers:  the social check can work both ways.  On Bob Sutton’s Work Matters blog, he lays out a checklist for candidates to determine if their future employer will be a “bosshole“.  Potential candidates can now dig for that kind of information online and equip themselves with far more information than a few years ago.

 

 

Privacy in the workplace is an area that invites a broad range of views and perspectives.  Whether the information relates to data on an electronic device such as an employer-provided computer or blackberry, or personal employee information such as bank account information for pay cheque deposits, we all expect some degree of privacy in the workplace.

What remains in dispute in many workplaces is where to draw the line between public space and personal privacy.  The law on workplace privacy continues to evolve in a non-linear fashion, in part because of the patch-work of Canadian legislation that governs privacy.   This post will outline the basic framework of law that governs privacy issues in Ontario workplaces.

Privacy Legislation in Ontario

Ontario does not have its own privacy legislation (other than for health care information) and therefore defaults to the federal Personal Information Protection and Electronic Documents Act (PIPEDA).  PIPEDA applies to the commercial information of an Ontario company, but not to personal employee information, unless the employee works for a federally governed organization (banks, railroads, etc).

Here is the specific language in PIPEDA:

4. (1) This Part applies to every organization in respect of personal information that

(a) the organization collects, uses or discloses in the course of commercial activities; or

(b) is about an employee of the organization and that the organization collects, uses or discloses in connection with the operation of a federal work, undertaking or business.

If the information in question relates to health and medical information, then the  Personal Health Information Protection Act (PHIPA) applies.

Privacy Case Law

To keep it interesting, the courts also continue to develop the common law on privacy.  In addition to filing a claim with the applicable privacy commission office for a breach of a privacy statute, an individual or organization could instead take their matter to the courts. There is still debate, however, about whether one can file a claim in the courts based on an independent claim of a privacy breach, as opposed to adding on a privacy claim to an underlying claim such as breach of contract.

[**JANUARY 2012 ADDENDUM – see my post on Jones v Tsige regarding new developments in privacy case law in Ontario.  We now have a tort of privacy in Ontario and the following commentary on caselaw is out of date.]

The court in the recent case of Jones v Tsige [2011] ONSC 1475 (Ont. Sup. Ct) held that there is no independent right to sue for invasion of privacy.  A bank employee in that case had accessed and viewed another employee’s banking information 174 times.  The case walks through the recent authorities on the possibility of a tort of privacy as its own actionable wrong and concludes that there is no such authority in Ontario.  The court made reference to Euteneier v Lee [2005] CanLII 33024 (Ont. C.A.), a case which noted in passing that there was no free standing right to privacy under the Charter or common law.

There is another line of cases, however, that suggests it may be time to recognize the tort of privacy.  See, for example, Somwar v McDonald’s Restaurants of Canada Limited (2006) CanLII 202 (Ont. Sup. Ct.).

Jones v Tsige is the more recent case, so at this moment, it is likely that a party could not sue on the basis of a privacy claim alone.

The Gap

Given the current state of the legislation and caselaw, for non-health related employee information in Ontario workplaces, there is a legislative and judicial gap.  Often the gap is taken care of through language in a collective agreement, an employment contract, an employee handbook, workplace policies on email or computer use, or general expectations communicated to employees in the workplace.

Where the gap remains outstanding, however, companies would be wise to integrate the principles of privacy law outlined in PIPEDA throughout the organization.  Privacy legislation and privacy caselaw continues to grow and it’s only a matter of time before there will be some sort of express legislation or body of caselaw that requires employers to maintain a minimum level of protection of employee personal information.

In any event, Ontario companies are required to comply with PIPEDA in their commercial dealings, so it may prove difficult to defend if employee personal information is less protected than other corporate data.

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.

Last Friday, the Ontario government passed the Integrated Disability Regulation under the Accessibility for Ontarians with Disabilities Act (AODA).  The Regulation includes a number of requirements for employers to remove barriers and ensure accessibility for employees.  The Regulation contains three standards for organizations to meet, including an Employment Standard at Part III. 

A good summary of the Regulation can be found on the First Reference blog.  Further details can be found on the Ontario government website, including a toolkit that will be available in the fall of 2011.

Workplace Emergency Response Information by January 1, 2012

By January 1, 2012, all employers must provide individualized workplace emergency response information to employees who have a disability, if the disability is such that individualized information is necessary and the employer is aware of the need for accommodation due to the employee’s disability.

Other Requirements

In general, employers will be required to address accessibility of employees, including:

  • develop policies on how the organization will achieve accessibility;
  • establish a multi-year accessibility plan outlining the organization’s strategy to prevent and remove barriers; and
  • ensure that training is provided on the requirements of the accessibility standards.

Depending on the size of your organization, the various requirements of the Regulation must be implemented between 2014 and 2021.

Accessibility of the Internet

An interesting requirement that too few of us put our mind to is the accessibility of the internet.  For many people with a disability, viewing information that is often critical to one’s employment is either very difficult or not possible.  The Regulation includes a number of standards that organizations will have to introduce over the next few years to ensure that all employees have access to the company’s intranet and to computer systems in general. 

This includes ensuring compliance with the WCAG 2.0 Level AA standards, an initiative by the World Wide Web Consortium to improve accessibility of the internet for people with disabilities.

Donna Seale has written a helpful post on her Human Rights in the Workplace blog explaining how to improve internet accessibility.

This will be a challenging but positive process for employers.  I’d love to hear from you if you have any tips on how to smoothly implement accessible technology in the workplace.