Employment & Human Rights Law In Canada

Terms of Service and Employee Social Media Passwords

Lisa Stam — Fri, 11 May 2012 09:00:00 -0500

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

Toronto Star article on March 20, 2012;
Dan Michaluk at All About Information;
Andrew Langille's blog Youth and Work; and
David Doorey’s Workplace Law Blog, including a post that contains theOntario Human Rights Commission’s Facebook post on the issue

South of the Border

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

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

So Should Canadian Employers Ask for Social Media Passwords?

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

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

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

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

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

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

Terms of Service

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

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

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

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

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

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

Dan Michaluk’s Best Practices

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

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

This Too Shall Pass

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

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

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

New Ontario Social Media Reference Check Guidelines

Lisa Stam — Mon, 07 May 2012 15:14:39 -0500

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

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

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

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

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

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

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

New Workplace in the Social Media Age: Law Society Program on Apr 25 & 26

Lisa Stam — Fri, 13 Apr 2012 13:52:50 -0500

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

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

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

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

More Info

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

LSUC Email Info:

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

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

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

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

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

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

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

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

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

The Natural Connection Between Social Media Legal Issues & Employment Law

Lisa Stam — Fri, 09 Mar 2012 09:02:12 -0500

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

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

Social Media is a People Issue

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

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

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

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

More than Messing Around at Work

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

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

Issues that businesses face include:

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

The employment issues are similarly broad:

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

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

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

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

@Phonedog_Noah: Who owns your Employee's Twitter Followers?

Lisa Stam — Tue, 24 Jan 2012 05:47:52 -0500

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

Phonedog Noah

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

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

Employer Sues Noah

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

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

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

Commodification of Followers

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

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

Personal or Business?

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

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

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

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

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

Take-Away for Employers

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

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

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

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

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

And while your at it, have your marketing people talk to your HR people once in awhile.

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

New Tort of Privacy in Ontario

Lisa Stam — Wed, 18 Jan 2012 15:46:43 -0500

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

The new tort is based on the following statement:

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

Jones v Tsige

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

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

Important Development in the Law

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

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

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

Take-Away for Employers

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

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

Clawbie 2011 Nominations

Lisa Stam — Fri, 23 Dec 2011 16:37:39 -0500

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

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

My Top 3:

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

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

Canadian HR Law

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

Runner’s Up:

Human Rights in the Workplace

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

Watershed LLP

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

Canadian Workplace Law

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

First Reference Talks

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

Happy holidays everyone!

DECEMBER 31, 2011 UPDATE:

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

AODA for Employers Part 3: Where's the Teeth?

Lisa Stam — Thu, 22 Dec 2011 11:13:00 -0500

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

AODA Penalties for Non-Compliance

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

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

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

Where's the Teeth?

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

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

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

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

Human Rights Tribunal Case Law

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

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

Take-Away for Employers

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

Blogging

Lisa Stam — Sat, 03 Dec 2011 07:21:58 -0500

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

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

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

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

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

Constructive Dismissals in a Struggling Economy

Lisa Stam — Tue, 29 Nov 2011 10:38:37 -0500

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 employer 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?

FAQs for US Employers in Canada

Lisa Stam — Thu, 20 Oct 2011 20:45:14 -0500

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 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, as 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 minimim 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 absense 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 requires 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.

AODA for Employers Part 2: Integrated Accessibility Standards

Lisa Stam — Mon, 17 Oct 2011 19:48:06 -0500

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:

Part I - General: addresses the general purpose of the Standards, and general requirements regarding accessibility policies, plans and training.
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.
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.
Part IV - Transportation Standards: lays out accessibility requirements for transportation providers such as bus and taxi businesses.
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:

the disability is such that the individualized information is necessary; and
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.

Freedom of Speech in the Workplace

Lisa Stam — Wed, 12 Oct 2011 06:06:17 -0500

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.

AODA for Employers Part 1: Customer Service Standards

Lisa Stam — Wed, 21 Sep 2011 06:00:34 -0500

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:

Accessibility Standards for Customer Service, Reg. 249/07
Exemption from Reporting Requirements, Reg. 430/07
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. No where, 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 effected. 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 complaince? 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...

Top 25 Blogs of 2011 Nomination

Lisa Stam — Fri, 02 Sep 2011 08:12:01 -0500

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:

Stuart Rudner's Canadian HR Blog
Donna Seale's Human Rights in the Workplace
Gabriel Granatstein's Quebec Labour Law
Michael Fitzgibbon's Thoughts from a Management Lawyer
David Doorey's Workplace Law Blog
Greg Gowe's Canadian Workplace Law
Dan Michaluk's All About Information
David Fraser's Canadian Privacy Law Blog
the First Reference Blog

...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.

Summer Reading

Lisa Stam — Tue, 09 Aug 2011 07:12:54 -0500

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.

Social Checks on Potential Candidates

Lisa Stam — Fri, 15 Jul 2011 06:43:30 -0500

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 appears 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 right 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 sidenote 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 101

Lisa Stam — Tue, 05 Jul 2011 07:40:02 -0500

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.

New Employer Standards for Employees with Disabilities

Lisa Stam — Wed, 08 Jun 2011 07:35:18 -0500

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.

Tips for Transitioning Back a Returning Employee

Lisa Stam — Thu, 02 Jun 2011 21:53:01 -0500

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 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.