I love stories like this:  17 year old Courtney Greer from Waterloo, Ontario, tries out for the boys’ soccer team, makes the team on her own athletic ability and is then told she is not allowed to play in the league.  She then has the guts to publicly fight it and files a claim against the Ontario Federation of School Athletic Associations (OFSAA) at the Human Rights Tribunal.  This is teenage courage and bravery at its best.

Given the high likelihood of success at the Tribunal, last week the OFSAA changed its policy to allow girls to try out for the boys’ team, even if there is a girls team available for the girls join. 

The executive director of the OFSAA was quoted in an article by Carolyn Alphonso at the Globe and Mail as saying:   “We were basically forced into this by the Human Rights Tribunal…We don’t think it’s a good thing, no, because what does it say about girls’ sport?”

Blainey (again)

I thought this issue was resolved back in 1986 in the Ontario Court of Appeal case of Blainey and Ontario Hockey Association, (1986), 26 D.L.R. (4th) 728, 54 O.R. (2d) 513, which held it is discrimination to prohibit a person from playing in a sports league on the basis of gender.  In that case, then 12 year old Justine Blainey fought to try out for the boys hockey team. 

At the time, the Human Rights Code contained section 19(2) which provided that "the right under section 1 to equal treatment with respect to services and facilities is not infringed where membership in an athletic organization or participation in an athletic activity is restricted to persons of the same sex." 

Thus, prior to Blainey, while a sports league could not discriminate on the basis of race or religion, for example, it could discriminate on the basis of gender. 

The Ontario Court of Appeal in Blainey explained as follows:

Thus, but for s. 19(2), Justine Blainey would have been entitled to the protection of the Human Rights Code and the benefit of the complaint and enforcement procedures therein provided. But s. 19(2) denies her that protection and benefit. It permits membership in an athletic organization or participation in an athletic activity to be denied solely on the basis of sex without regard to any other factors. Individuals who may in all respects be equal in terms of qualifications for membership in an athletic organization or participation in an athletic activity can be treated differently for no reason other than their sex. With respect to athletic activity in the province, the protection of the Human Rights Code is still available to all others who complain of discrimination on other grounds, such as race, colour and ethnic origin. Only sexual discrimination is permitted. This renders s. 19(2) clearly discriminatory.

The court concluded that section 19(2) was contrary to section 15(1) of the Canadian Charter of Rights and Freedoms, which says:

15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

In Canada, the federal Charter trumps provincial legislation, and so, section 19(2) of the Ontario Human Rights Code was held to be unconstitutional and of no force and effect.  In other words, since 1986, it has been illegal to prohibit a girl from trying out for a sports team.

Undermines Girls’ Sports?

One of the arguments of the OFSAA was that it may undermine the girls’ sports programs.  This was also cited as a concern after Blainey, that we would see a flood of applicants to the boys’ sports leagues, while the girls’ leagues languished with the weak athletes who couldn’t cut the "real" team. 

In fact the opposite has occurred:  girl’s and women’s sports leagues have sprouted up all over the place in Canada.  Hockey, in particular, has increased, leading to all kinds of issues over ice time in our limited number of rinks.  While we must surely have the most ice rinks per capita in the world, it is never enough.

Combine hockey issues & human rights, and you have a serious national crisis in Canada.

In Toronto, for example, it was news throughout the winter that the huge increase of girls playing hockey has actually created challenges with ice time in the various hockey rinks around the city.  The issue of gender equal ice time hit the front line news several times over the winter, with the City of Toronto taking over one of the rinks until it agreed to distribute time more equally. 

Let Skills & Ability Decide

While I am quite sympathetic to concerns about those boys who are displaced because of a more athletic girl (what team do those boys get to play on?), and while I very much value the collegiality and inspiration girls and women can get from playing on a sports team together, I prefer an approach where skill and ability is the deciding factor, not gender. 

 

Earlier this week, I received an email from the owner of a small company who was frustrated at all of the resources available for employees and the lack of resources for employers.  She pointed out that the various human rights commissions across Canada will often offer services to complainants, and that in general, the system felt biased towards employees.

I agree that once a matter gets to a hearing, our arbitrators and decision makers acknowledge the power imbalance that often exists between an employer and an employee, particularly if the employee is unrepresented.  This is the case throughout the law, and represents more of an attempt to ensure fair outcomes than any intentional bias towards one side.

Having said that, I thought it would be helpful to point out some useful (free) resources that do exist for employers:

(a) Ontario Employment Standards

(b) Federal Employment Law Information

(c)  Health & Safety 

 (d)  Human Rights

  • Although the Ontario Human Rights Commission (OHRC) no longer has carriage of files at the Human Rights Tribunal, the OHRC has produced a number of helpful publications over the years, including guides about hiring employees, developing compliant workplace policies, drug testing, employment-related medical information, and an extensive online publication called "Human Rights at Work".  These guidelines are not binding on the Tribunal, in court or at an arbitration, but are useful minimum standards to use as a defence should an employee claim discrimination in the workplace.
  • The Human Rights Tribunal has a number of online publications, including a Respondent’s Guide (the one most used by employers) and a Guide to Preparing for a Hearing.
  • Employees can access the Human Rights Legal Support Centre, the new organization established last year when the Human Rights Tribunal started accepting cases directly from complainants, rather than having to go through the OHRC as a gatekeeper.  The Centre is for "individuals throughout Ontario who believe they have experienced discrimination", not for employers. 
  • The Ontario Human Rights Code is online.
  • Practical Tip:  The Tribunal is now no different than any other legal proceeding, and given the assistance complainants (i.e. employees) can get through the Human Rights Legal Support Centre, I would caution an employer from trying to go it alone at the tribunal.  Whether you retain a lawyer to help with just the response at the beginning, or with the entire process, including the legal arguments at the hearing, there is no way to avoid the fact that this is an increasingly complicated a legal forum.

The above list is just a start and I know there are many, many more resources out there.  If you have a recommendation for a good employer advocacy organization, let me know and I’d be happy to post your link here as a resource to employers. 

Resources readers have since suggested to me:

  • The Office of the Employer Adviser (OEA) is an independent agency of the Ministry of Labour that helps Ontario employers manage their workplace safety and insurance costs.  They provide advice to any size employer, but represent primarily employers who employ fewer than 100 employees.

This week, Christine Thomlinson wrote a great blog post on the (potential) come-back of Tiger Woods.  She draws a parallel between Tiger’s return to golf and employees returning to work after a difficult period in their life, whether criminal, personal, or otherwise.  As she points out, there are a number of pro-active steps an employer can take to ease the transition.

I would suggest that Christine’s comments also extend to other types of absences, such as a maternity or parental leave, a sick leave or workplace sabbatical.  When an employee has been absent from the workplace for a period of time – even if for very happy reasons such as becoming a new parent – the workplace will continue to chug along without the absent employee. 

What  are an employer’s obligations and an employee’s entitlements during an extended leave?  For American employers with a Canadian subsidiary, this area is often a completely bizarre area of Canadian employment law.

Part XIV of the Employment Standards Act (ESA) provides for the following types of statutory leaves:

  • Pregnancy Leave
  • Parental Leave
  • Family Medical Leave
  • Emergency Leave, and
  • Reservist Leave.

While an employer can offer other types of leaves (e.g. educational leave, etc), it is the above statutory leaves that come with specific legal entitlements. 

For example, when an employee finishes his or her statutory leave, the ESA requires the employer to "reinstate the employee to the position the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not."

The employer must also reinstate the employee at a wage rate that is equal to the greater of (a) the rate the employee most recently earned with the employer or (b) the rate the employee would be earning had she or he worked throughout the leave.

A further example involves benefit plans.  An employee on a statutory leave is entitled to continue to participate in the following benefit plans:  pension plans, life insurance plans, accidental death plans, extended health plans, and dental plans.  Again, while an employer can chose to continue all benefits in which the employee is enrolled prior to the leave, it is only the statutory enumerated benefit plans that must be continued during the leave. 

A caveat to this is if the benefit premiums are normally employee paid – in this case, the employee can give the employer written notice that he or she does not intend to pay the employee’s contributions, in which case, the employer can cease the benefits for the duration of the leave.

In general, any entitlement based on length of employment must continue to accrue.  An entitlement based on hours worked, however, will generally amount to $0, since the employee will have worked 0 hours during the leave.

While the majority of leaves seem to go smoothly, there are always both legal, human resource and business issues to consider. 

The above outlines some of the legal issues.  Have you run across unique human resource or business issues in your workplace that were difficult to reconcile with the legal obligations? 

 

March Madness is upon us. If you work in an office anything like mine, sports gambling pools are the unofficial employee morale booster, conversation starter and excuse to get together for a pint when drafting your fantasy whatever team.

But are sports pools a time waster and a hit on the company’s productivity bottom line? 

According to the statistics referred to in the US outplacement services blog @work, the productivity dip is real:

"A 2009 Microsoft/MSN survey found that 45 percent of Americans planned to enter at least one college basketball pool last year. Assuming that at least that many plan to participate in pools this year, Challenger applied that percentage to total payroll employment in February (129,526,000) to approximate that as many as 58.3 million workers could participate in office pools this year (45% of the total non-farm workforce).

According to the latest available data on average weekly earnings from the Bureau of Labor Statistics, these workers earn $748 per week or about $18.70 per hour (based on 40-hour work week). That breaks down further to earnings of about $6.23 every 20 minutes.

So, among the 58.3 million office pool participants, every 20 minutes of unproductive work time costs employers roughly $363.2 million (58.2 million X $6.23). It is conceivable that workers participating in pools could waste an average of at least 20 minutes per day the week between Selection Sunday (March 14) and the end of the first round (March 19), when March Madness-related activity is at its height as people research teams, put together their brackets and watch games online during work hours.

“By the end of that first week, employers across the country may pay unproductive workers a total of $1.8 billion,” said Challenger, multiplying the $363.2 million by five.

So yes, we apparently spend time during work hours tracing the success of our NCAA brackets. 

And I can also tell you that there may be a bit of a dip in productivity when the new baseball season starts at the beginning of April, not to mention the week leading up to that as fantasy team drafts take place across the continent, or on April 12 itself, when the Toronto Blue Jays  home opener takes place.  And let’s not talk about October when all the different major leagues sports are in full swing at the same time.

Many challenge whether the loss is really that big.  In his blog post on Slate, Jack Shafer persuasively (in my view) argues that the numbers are inflated and likely bogus.
 

So what’s an employer to do?

If you believe the productivity dip is indeed a problem, certain tangible issues can be dealt with directly:

  • Is the IT bandwidth saturated with online viewing of the games?  Then block out the specific URLs causing the problem.
  • Are employees huddling behind their computer looking a little too engaged, likely engrossed in the game rather than the assignment you gave them?  Then hold those group meetings you were intending to hold in the near future now to pull staff away from their computers.
  • Too much paper being used up printing mock draft lineups, online fantasy league cheat sheets and/or bracket templates?  Start monitoring the printers and speak to the culprits.

But will this really improve productivity?  Most believe that a happy worker is a productive one.  The manner in which you deal with this is more of a business and HR issue than a legal issue. 

Of course the employer reserves the right to manage the workplace, direct assignments, supervise staff and dictate priorities.  What legal recourse would an employee have if you disciplined him or her for spending too much personal time at work?  Unless the discipline was egregious or completely inconsistent with past management style, there is not a lot that the employee can do.

What is your workplace doing?  Embracing the comradeship?  Ignoring the issue?  Banning the time wasters?  If you have some effective techniques for dealing with this tricky problem, I’d love to hear from you.

 MAY 12, 2010 NOTE:

For Canadians, workplace productivity and the NHL playoffs may prove an even bigger issue than the US-based March Madness – especially as long as the Montreal Habs hang in there.  Here’s my interview on CBC’s The Current about office productivity and sports pools.

 

My firm is hosting an employment law update on Wednesday, March 31, 2010 from 8:30-11:30am in Toronto, and we would like to open it up to attendees beyond our current clients.   This will particularly be of interest to HR professionals and people within your organization who deal with day to day employment law issues. 

If you are interested in attending, please contact me to rsvp (lisa.stam@bakermckenzie.com).

The topics are:

  • Keeping your Workplace Policies up to date:  Bill 168, temp agencies & the cell phone ban;
  • the new court rules and how they apply to employment law cases;
  • update on the new human rights regime in Ontario and what employers need to know;
  • social media in the workplace; and
  • round-table employment tips for the post-recessionary economy.

This will be a Tweet-friendly event, so we will encourage people to ask questions and make comments throughout.

 

Certain industries such as trucking or the oil fields have had a history of a male-dominated work force where the workplace culture may indeed have been a little rough. 

Two recent decisions highlight the requirement that all industries, regardless of a historical “culture”, must adhere to employment and human rights law.

On February 5, 2010, the Ontario Human Rights Tribunal released the decision of Khan v Lynx Trucking , awarding a former employee $25,000 plus lost wages for the racist comments she was forced to endure by the owner of the trucking company. At least one of the employer’s witnesses referred to the ‘rough and tumble world of trucking’, and most of the employer’s own witnesses noted that the owner would often swear and raise his voice. 

After months of dealing with racist comments and jokes, when the employee approached the employer to not speak to her in that manner, he responded that it was his “f***ing company”. That may be true, but owners must still comply with Ontario employment and human rights laws, which include refraining from discriminatory comments and conduct. 

In addition to the large damage award, the Tribunal ordered the company to retain an expert in human rights to assist in the development and implementation of a human rights and anti-harassment policy for the organization, and to implement human rights and anti-harassment training in the workplace. In other words, being the owner of the company did not exempt the respondent from the jurisdiction of the Tribunal.

Last August, the Alberta Court of Appeal faced a similar defence in the wrongful dismissal case of Poliquin v Devon Canada Corporation .

In that case, the oil fields company fired a manager in part for accessing internet pornographic and racist material and emails on the company computer, despite warnings not to do so. 

The court rejected the manager’s argument that because the company is in small-town northern Alberta in the heart of the oil patch, the industry atmosphere and culture was relaxed with respect to emails of “questionable content”. The court held that the employee’s conduct was not to be measured against the lowest common standards in an industry, but rather, to the reasonable standards to which the company requires compliance.

In that case, the company’s anti-discrimination policy addressed the problematic behaviour, and the company was able to point to it as a defence. The court upheld the company’s decision to dismiss the employee.

While all workplaces certainly have their own culture and history, that culture must evolve with Canadian law.

Both of these cases highlight the fact that workplace “culture” can no longer be an excuse for behaviour prohibited under the applicable human rights code. Up to date workplace policies remain an effective tool for companies to both deal with problematic behaviour and to defend themselves when facing discrimination complaints and law suits.

(*This piece was written for the Financial Post HRPA website.)

Just in time for Valentine’s Day, Toronto city councillor Adam Giambrone made a statement to the media  last night that he has had "intimate relations" with women other than his spouse throughout most of 2009. 

While at 32 years old, the politician may be excused for the lapse in judgment, given his former bid to run for Mayor of Toronto, the jury is out whether public opinion will be quite so forgiving.

In my view, the interesting issue is not so much whether he had affairs, but rather, the extent to which the news will have a negative affect on his credibility and ability to assume the role of leadership and responsibility of running a large city.  In fact, he has stepped down from his candidacy within a day of the news.

Companies are forced to deal with this all the time.  What happens when one of your senior people starts behaving inappropriately at the staff party?  When rumours start to fly about an affair with a junior person in the organization?  Or when two people approach you, as owner, to declare that their mature romantic relationship will not impact their workplace professional relationship?

The courts zero in on consent – if a senior executive is romantically involved with a junior employee, is the employee really fully consenting?  Or is he or she just worried about job security? 

Unless your workplace policy says otherwise, it is likely fairly benign for employees to engage in relationships with people at the same level, at least in the short-term while they are each at the same level.  The cases are clear, however, that relationships crossing supervisory roles are a problem.

In the 2009 Ontario case Cavaliere v Corvex Manufacturing, the plaintiff sued the company for wrongful dismissal.  He had worked his way up the company to a senior management position.  After a warning about sexual relationships with one employee, the plaintiff engaged in a relationship with another employee.  When that employee’s husband found out, he went straight to the owner.  The owner – and the court – found that the pattern of behaviour was sufficient grounds for dismissal.

The plaintiff insisted that the relationships were consensual and relied on a 1995 case that found consensual relationships in the workplace were not grounds for dismissal.  He argued that if the relationships were consensual, his dismissal was wrongful and he was entitled to damages for pay in lieu of notice. 

The court in Cavaliere, however, held that in 2009, the achievable expectation for an harassment free workplace required a look at all of the facts, which included:

  • the company had already warned him in writing to cease the behaviour;
  • he was in a position of senior management; 
  • the last relationship was with a particularly vulnerable junior subordinate; and
  • the plaintiff just "didn’t get it" that the behaviour in the circumstances was inappropriate.

These were all reasons to uphold the termination and deny him any termination pay.

Those in leadership roles will bear a greater onus to guard against romantic relationships with subordinates.  While many Canadians still agree that the state (or the courts or the company) has no place in its citizens’ bedroom, for leaders and senior folks in your organization, that may not be quite so true.    

One of the more stark contrasts between Canadian and American law is the law around terminations of employment. This may be rooted in the fundamental difference between the American “at will” concept versus the Canadian contract-based employment relationship. In other words, unless a contract says otherwise, in the US, an employee is hired “at will” and can be terminated with little to no notice.

Any Canadian employer – and certainly any American employer with a branch in Canada – will tell you that termination of employment requires a careful look at the employment contract to determine the parameters in which the termination can occur. If the contract doesn’t survive a court’s scrutiny, in many situations, an employer is often looking at paying an employee 3-5 weeks per year of service if the termination is found to be wrongful.

What is not necessarily in the contract, however, is the Canadian requirement to terminate only in good faith and without public humiliation. In other words, even when terminating an employee, Canadians have to be nice about it.

There are a number of cases that have awarded additional damages to a terminated employee if the employer conducted the discharge in a publicly humiliating or unnecessarily cruel manner. Terminations should be in person and the employee is entitled to know the grounds for dismissal.

A recent example is the case of Soost v Merrill Lynch Canada Inc in which an Alberta court awarded the terminated employee damages for wrongful dismissal. Not only was the employer found to have not had grounds for termination, but the court held that ” the Defendant’s actions in purporting to dismiss Soost for cause were both unfair and insensitive.”

For more details on the facts of the case, Christina Catenacci has done a great summary entitled, The importance of notice and manner of dismissal over on the First Reference Blog.

The bottom line is that Canadian employers always need to proceed slowly, with caution and with a hefty paper trail to back up the reasons for the termination. Now, in light of the damages award in Soost, there is even more financial incentive to be decent about it. It could get expensive otherwise.

Update: The Alberta Court of Appeal reduced the plaintiff’s damages award from $2.2 million to $600,000, doing away with the bad faith damages aspect of the lower courts award. Read the decision here and my post about it here.

 

On December 9, 2009, Bill 168, the Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace) 2009 passed third reading in the Ontario legislature.  This new law will amend the Occupational Health and Safety Act by introducing new duties on employers with respect to workplace violence and workplace harassment.  It is anticipated that this bill will be proclaimed shortly, and is scheduled to come into effect six months after that.

Companies therefore have until summer 2010 to fall into compliance with the new law. 

In a nutshell, the bill requires employers to be far more assertive when dealing with workplace violence and harassment.  General information can be found in these government backgrounders:  Protecting People at Work and New Protections.

Highlights of the bill include the following requirements:

  • Develop and implement a policy that specifically deals with workplace violence and harassment
  • Develop a program to inform employees about the policy and to implement that policy on an on-going basis
  • Take reasonable precautions to protect workers from domestic violence that occurs in the workplace
  • Conduct workplace assessments on the risks of workplace violence, and to report back to the health and safety committee or representative, or if neither exist, directly to the employees
  • Identify risks of workplace violence from a person with a history of violent behaviour and determine what information should be disclosed to protect the safety of workers and
  • Allow workers will have the right to refuse to work if they believe that they are at risk of workplace violence.

The bill introduces some novel legal obligations, and I will provide updates on any interesting initiatives and guidelines that I come across over the next couple of months.

Should an employer friend his or her employees on Facebook? Connect on LinkedIn, follow on Twitter or read an employee’s blog? There is no consensus and employers continue to grapple with the role of social media in the workplace – and the role employers should take within these vehicles of communication. 

The more difficult question is not whether to friend, follow or read, but whether an employer can then rely on that information as evidence when hiring, disciplining or firing an employee. Does social media produce reliable legal evidence?

In the British Columbia Court of Appeal case, Bishop v. Minichiello, released last week, the court upheld the lower court decision that ordered production of metadata from a plaintiff’s computer regarding his usage of Facebook. The court required the plaintiff to forward a copy of his computer hard drive to a neutral third party who would compile data on the narrow issue of the amount of time the plaintiff was spending on Facebook from 11pm to 5am. This was directly relevant to the plaintiff’s personal injury claim and to alleged fatigue during the day. The court permitted the forensic computer search on narrow grounds. While not an employment law case, the case does speak to how a court would rely on Facebook evidence.

Recent employment specific examples in the case law include:

  • Making disparaging comments about the company or the boss online: this is usually valid grounds for some sort of discipline, particularly if a fundamental breach of trust results from particularly nasty comments.
  •  Discovering unfavourable information online about a potential candidate and choosing not to hire him or her: this has human rights violation written all over it if the decision to not hire can be connected to the candidate’s age, disability, pregnancy, or any other ground protected by the Human Rights Code.
  • Firing someone because of comments posted on someone else’s Facebook Wall: talk about six degrees of hearsay separation! (Alberta Distillers Ltd. v. United Food and Commercial Workers, Local 1118 (Whiteside Grievance) [2009] A.G.A.A. No. 46)
  • Firing an employee because of information on their Facebook page if the employee claims the entire Facebook page is a fake page created by his ex-girlfriend: questions arise of proving the evidence found in Facebook.
  •  Whether a Status Update on Facebook could violate the confidentiality terms of a settlement agreement: apparently not, if the status is vague enough.

While American employers tend to have more leeway with disciplining employees for information gathered online, Canadian employers must continue to be cautious of the human rights regimes, privacy laws and employment law culture that afford employees more protection of their personal information than our neighbours to the south.