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 Though accurate at the time of publication, it is no longer being updated. The page may contain broken links or outdated information.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

 

Well, I’m back in the office this week after a busy but wonderful maternity leave.  I was quite excited to get back at it.  As all parents who have taken a parental leave know, coming into the office is often a welcomed break from the chaos of little ones at home.

Practicing law certainly has its stressful moments, but those nutty emotional breakdowns because my two year old wants to wear her flip flops instead of her running shoes (because they match her hair clip better) or because either kid (again) refuses the nutritious love-filled meal that I so carefully made for them can be a little much sometimes.

Like all employees coming back from a leave, I was curious how things would go this first week.  I have kept in touch with my colleagues and kept up with the law over the last 10 months, but it is nonetheless like walking into a new stage of the job.

Based on my positive experience this past week, here are a few tips for employers to help the transition of employees re-entering the workplace after a leave:

  • Make a point of having a senior person (HR, supervisor, etc) stop by to welcome the employee back.  No matter how senior or secure the employee is, there is always that lingering worry whether there is still a place for them in the office.  One 5 minute visit from the boss can eliminate the air of uncertainty and help everyone hit the ground running.
  • If it was a paternity leave, ask about their kids.  It was their 24-hour a day job for a period of time, so it is likely something on their mind for the first couple of days.  It’s important to acknowledge this exciting addition to their life.
  • Ensure the employee has the tools to do their job.  The IT manager contacted me last week before I started to make sure I was ready to go.  It was a great gesture and on Monday, I was able to hit the ground running with my computer, phone system, etc.
  • If there were any significant changes in the office, have someone update the employee.  In my case, my firm underwent some significant renovations and it was great to have a colleague tour me around so that I could find everyone again.

More than anything, take off the kid gloves – this employee may be missing her or his kids, may still be a little sleep deprived from middle of the night feedings, but they have weathered the challenges and tough hours of childbirth and the long days of taking care of a new human being.  The required multi-tasking and non-stop schedule at home usually makes people more focused when they return to work.  Breaks and lunches get shorter so that we can get the work done to get home to our kids.  Employees are fundamentally the same person that they were beforehand.  If you gave your employee tough assignments and big responsibilities before the leave, then continue to do so now.

Aside from the obvious human rights concerns should an employer do otherwise, employers should assume the employee is ready to go, is more capable then ever and has simply been enriched by their new life experiences during the leave.

 

Canadians go to the polls on May 2 for the 2011 federal election.  Here is a brief review of an employer’s obligations on voting day:

  • Any employee who is a "Canadian citizen and is 18 years of age or older on polling day" is entitled to vote.
  • The hours of voting are set by statute:

(a) from 8:30 a.m. to 8:30 p.m., if the electoral district is in the Newfoundland, Atlantic or Central time zone;

(b) from 9:30 a.m. to 9:30 p.m., if the electoral district is in the Eastern time zone;

(c) from 7:30 a.m. to 7:30 p.m., if the electoral district is in the Mountain time zone; and

(d) from 7:00 a.m. to 7:00 p.m., if the electoral district is in the Pacific time zone.

  • Every employee eligible to vote is entitled, during voting hours on polling day, to have three consecutive hours to vote.  If the employee’s hours of work do not allow for those three consecutive hours, the employer is required to allow time off to vote.
  • If an employer is required to allow time off for an employee to vote, that period of time is at the convenience of the employer, not the employee.
  • An employer is not permitted to deduct the pay of an employee or impose any sort of penalty for the time taken by an employee to vote.
  • The Elections Canada website contains general information about how and when to vote.  This is a good place to direct employees that may have questions about the logistics of voting on election day.

 

Of the many areas of employment and human rights law that change quickly, I have noticed over the last 6 months that disputes over social media in the workplace have started to hit the courts and tribunals at a much faster pace.  While a year or two ago there was virtually no case law for employers to turn to for guidance, this is no longer the case.

Four blog posts over the last two weeks provide good summaries of the recent issues, benefits and pitfalls of using social media in the workplace.

  1. The All About Information blog cites a recent BC Labour Relations Board decision in which two employees were dismissed because of comments posted on their Facebook page that were critical of their employer.  Facebook continues to be a source confusion by employees about what is private and what is public.  Facebook is on the internet, which is an inherently public sphere.  Posting negative comments about your employer in your status update or on your wall is no different than sending a letter to the editor of your local newspaper.
  2. Also from the All About Information blog, there is a reference to an interesting article in the Ottawa Citizen that outlines how insurance companies are "Mining Information from Social Media Sites" to counter disability claims.
  3. In her Human Rights in the Workplace blog, Donna Seale pointed out a good online article about googling potential candidates.  It rightly points out that some quirky online details about a candidate may actually indicate a more interesting, diverse employee that can bring more to the table than a overly cautious or neutral candidate. 
  4. Finally, this morning on the First Reference blog, Stuart Rudner posted a good piece on the different ways employers can, should and/or should not use online content about candidates and employees.  As he notes, social media is "not going to go away" and there can be many benefits of engaging social media for employers throughout the employment relationship.  Whether it is to screen employees for hiring or to review a former employee’s LinkedIn profile to determine whether he or she is mitigating his or her losses, the internet is a wealth of information. 

I particularly appreciate Stuart’s observations that we old folks (i.e. those of us over 30) all engaged in some behaviour that is not particularly Facebook-friendly when we were younger.  The difference is that we enjoyed a world without instantly uploaded pics through a smartphone.  Hopefully common sense will come into play when deciding whether employers should act on online content involving candidates and employees.

While legal disputes are rarely good for anyone but the lawyers, the good news is that the growth in judicial decisions on social media will continue to provide greater guidance for employers who invariably struggle with how to integrate social media information into their workplace decision making.

 

I haven’t blogged since mid-September.  The spirit is willing, but the flesh is weak.  

I’m home in month 3 of a maternity leave with my second baby and simply haven’t been able to get to a computer for a solid period of time.  As anyone who has been on a parental leave with a newborn knows, it is a wondrous, happy time – but it is no vacation.  

My eldest is 2 and was apparently an easy baby (something I didn’t appreciate at the time!).  Then along came #2… I feel very fortunate to have two healthy, happy kids and am trying to appreciate every moment of this special time. My 3 month old, however, spent his first 2 months very grumpy about entering this world, and complained about it 24 hours a day, feeding relentlessly in protest.  He’s finally become human and things are sorting itself out.  But it was one heck of a long, sleepless haul to get here.

For any employers out there who have an employee at home on a maternity leave, I can tell you that they are busy.  I don’t know what we’re busy doing, and I always have a hard time remembering what I all did when my spouse asks at the end of the day, but what I do remember is not having 5 minutes to myself to think. 

I look forward to getting back into the office to read documents that don’t rhyme and that contain more than 1 syllable words, to problem solve more than whether to watch Yo Gabba Gabba or Cailiou on TV, to eat hot food and to put my years of training back into practice.  I know, however, that I’ll be there before I know it and will miss these quiet moments with my baby sleeping on my lap in the middle of the day, "trapping" me in the recliner and forcing me to taking life a little slower. 

If only we could clone ourselves and somehow have both worlds.

 

Recent caselaw suggests that huge damage awards for employees claiming wrongful dismissal is on the decline. Upper courts continue to cut down lower court awards and eliminate “bad faith”-types of compensation.

 

Last month, in Soost v Merill Lynch, the Alberta Court of Appeal reduced the lower court award to dismissed stock broker, Kurt Soost, from $2.2-million to $600,000. The Court held that while the employee was wrongfully dismissed by Merrill Lynch Canada, 12 months’ notice was a sufficient award for a high performing 3 year employee. It reversed the additional $1.6-million bad faith award the lower court had awarded for the loss of Soosts’ book of business as a result of the termination.

 

In Canada, if an employee is terminated with cause, the employee is entitled to no notice or pay in lieu of notice.  If, however, the employee is terminated without cause (or sues and a court sides with the employee), the employee is entitled to notice of termination or pay in lieu of termination.   Although there is no official rule of thumb, most agree the range of notice is between 3 to 5 weeks of notice per year of service – or a payment in lieu of such notice.  Courts have generally capped awards at around 12-15 months, but some have gone as high as 24 months.

 

In addition to the payment in lieu notice reflecting the number of years the employee has worked at a company, courts have inconsistently awarded additional awards for behaviour such as an employer’s bad faith in the termination, the employee’s mental suffering, and other losses suffered by the employee. 

 

Key to the analysis in Soost is whether the employer was acting in bad faith when terminating Mr. Soost.  Since the Supreme Court of Canada’s Keays v Honda Canada case in 2008, employee plaintiffs must prove that the employer’s conduct caused actual losses. The act of dismissal itself is not a sufficient “bad faith” or loss that warrants extra damages from the court. 

 

The trend over the last couple of years has been to limit the damages awarded to employees for wrongful dismissal.  While it remains impossible to predict exactly what a court would award, it appears that for most cases, the basic notice period requirements will be the extent of the damages.

 

For a good summary of the case and further commentary, you may want to visit the following sites: