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Current Issues in Employment Law


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Current Issues in Employment Law

  1. 1. Current Issues in Employment Law B.C. Legal Management Association November 13, 2013 Richard Press 604.643.6444 Davis LLP
  2. 2. Agenda • • • • • Social Media - Emerging Trends Smartphones - Overtime Issues Work from Home - Employer Considerations Older Employees - Transition and Performance Sick and Disabled Employees - Performance and Disability Management
  3. 3. SOCIAL MEDIA • Emerging Trends
  4. 4. Liability Risks • • October 2011, OIPC releases Guidelines for Social Media Background Checks. Biggest liability risks: • • • Errors in information Over-collection of information Over-reliance on consent
  5. 5. Federal and BC privacy legislation allows for collection of personal information without knowledge and consent of the individual if the information is already publicly available.
  6. 6. Within the Employment Relationship • • • • • Loss of productivity at work Creation of a poisoned work environment Leaks of confidential information Insubordination by criticism of the employer or its management Damage to an employer’s reputation.
  7. 7. Loss of Productivity at Work
  8. 8. Creation of a Poisoned Work Environment: Aliens around the Coffee Table
  9. 9. Aliens Around the Coffee Table Roberta likes to talk — unfortunately she might have short term memory problems — always forgets the people's names she's talking about, or the point of her story, or the ending - If I had to choose a planet that she came from, I'd say it was some dark planet, with very little oxygen...
  10. 10. Aliens Around the Coffee Table Next to her sits one of the new girls.... She's worked here for less than three months and has ... already used up all her sick time, her family sick time, personal leave and bereavement leave — and leaves 20 minutes early each day. But she's never missed a coffee break
  11. 11. Aliens Around the Coffee Table Next to her sits Bill, as in "Dollar" Bill. Probably the most perfectly named person in the office. He is so cheap it's scary. Way past frugal, or careful with his money.... he brings his lunch to work. It is always a stale peanut butter sandwich.... and a spotty banana. Can you imagine being his spouse, or child.
  12. 12. Aliens Around the Coffee Table I work in a lunatic asylum. Nurse Ratched [FN6] (aka, the supervisor) just sent the following e-mail to her staff: (email) So, WTF does this mean. Because we already number the documents, it looks like the LIC (lunatic in charge) now wants us to go ahead and renumber all the pages within a document as well.
  13. 13. Aliens Around the Coffee Table My job is so screwed up. I thank God every day that there is a pension involved at the end of this. Otherwise I would be so gone....
  14. 14. Leaks of Confidential Information
  15. 15. Applebee's Source:
  16. 16. Leaks of Confidential Information Municipality of Chatham-Kent •Blog with photos and derogatory comments about residents of a nursing home •Contrary to confidentiality policy •Termination upheld at arbitration
  17. 17. Leaks of Confidential Information • • • • Tremblay - Human Rights Case Confidential Settlement Complainant posted: “I didn’t get what I wanted but I still walked away with some” Human Rights Tribunal ordered $1000 to be paid to employer
  18. 18. Insubordination • Lougheed Imports Ltd. dba West Coast Detail & Accessory Centre • Employee’s Facebook entry: “west coast detail and accessory is a fuckin joke....dont spend your money there as they are fuckin crooks and are out to hose you...there a bunch of greedy cocksucin low life scumbags... wanna know how I really feel??????”
  19. 19. Lougheed Imports Labour Relations Board: •No expectation of privacy •Had over 100 ‘friends’, some of whom were fellow employees
  20. 20. Insubordination • • • • • Walder - BC Employment Standards Tribunal Terminated while on maternity leave She found out that there would be changes to her schedule when she came back to work Posted on Facebook that a co-worker was stealing her job Termination upheld
  21. 21. Damage to an Employer’s Reputation Misuse of the employee’s social media accounts Bell Technical Solutions v Communications •Comments about company and supervisor were derogatory •Had 140 Facebook “friends” - so not private
  22. 22. Damage to an Employer’s Reputation Simcoe County District School Board •Gay teacher suspended for Facebook posting calling the principal “homophobic” •Even with restricted privacy settings on Facebook, posting was considered to be “public” •Risk of reputational damage was legitimate
  23. 23. Porter Airlines • $4 million claim against Canadian Office & Professional Employees Union for comments on Twitter - including a fake video showing a crash of a Porter plane
  24. 24. Porter Airlines • • Union claims freedom of speech Decision will impact what unions can say about the employer during a labour dispute
  25. 25. Misuse of the Employer’s Social Media Accounts “We’re tweeting live from HR where we’re all being fired! Exciting!!”
  26. 26. Best Practices Create and Update Employer Policies
  27. 27. Best Practices • • Social Media Policy Confidentiality Policy
  28. 28. Best Practices Education and Training
  29. 29. Best Practices Identify High Risk Employees
  30. 30. Conclusion Social media is a valuable tool for an employer for marketing, connecting with customers, and managing employees.
  31. 31. SMARTPHONES • Overtime Issues
  32. 32. Boundary between “working time” and “non-working” time has become increasingly blurred.
  33. 33. When is an employee working?
  34. 34. “Unauthorized” work outside regular hours “On the Internet, no one knows you’re a dog.”
  35. 35. The claim for unpaid overtime against Scotiabank is for: •$250 million in general damages and •$100 million in punitive damages
  36. 36. No Class Actions for claims under BC Employment Standards Act
  37. 37. Overtime for Work • • • ESA requires payment for “work” Work in excess of 8 hours/day or 40 hours/week = overtime ES Branch defines “work” as: • • The labour or services performed by an employee, and Being on call for an employer at a location designated by the employer, except the employee's residence.
  38. 38. De Minimus Cell Phone Use • • In the USA, yes In Canada, sorry … work is work • • How does this work for an employee not working? Do we pay in 1-minute increments?
  39. 39. What About Being “on call”? • • • • If at home - not work If at a place designated by employer - work If free to wonder - not work ES Branch (1990s) guidelines: An employee whose employer expects a response within a hour of being paged is not considered to be at work, however, one who must report to the workplace within five minutes of being paged is, since the employee would have to be within blocks of the workplace in order to meet this expectation.
  40. 40. The Cost of Answering a Text • ES Branch policy: When [an on-call] employee responds to a page, or a cellular call, the employee has in effect, "reported" to work and is entitled to minimum daily pay under s.34 of the Act. • Section 34 = two hours minimum pay
  41. 41. What if the employee is not on call? • • No cases No policy
  42. 42. Possible Overtime
  43. 43. Probable Overtime
  44. 44. WORK FROM HOME • Employer Consideration
  45. 45. Employment Standards • • Daily hours Overtime
  46. 46. WorkSafeBC • • • Safe work site Ergonomics Reporting and managing injuries
  47. 47. Operational Issues • • • Productivity (Measuring metrics) Teamwork (integration) Direction and supervision (managing the away employee)
  48. 48. OLDER EMPLOYEES • Transition and Performance
  49. 49. The Human Resources Context 1. 2. 3. 4. Baby Boomers Generation X Generation Y Millennials (1946 - 1964) (1965 - 1980s) (1980 - 2000) (2000 ------>) Greater number of older workers in the workforce
  50. 50. Baby Boomers Who Keep on Booming • The Challenges:     Aging workforce Smaller pool of workers Legal obligations Medical and benefit programmes • The Advantages:  Maturity  Experience  Judgment
  51. 51. Baby Boomers Who Keep on Booming The matters of concern that we are seeing in our practices: Termination Options and Severance Costs Termination Options and Severance Costs Benefit Plans Benefit Plans Performance Management Performance Management Duty to Accommodate Duty to Accommodate
  52. 52. Baby Boomers Who Keep on Booming Termination 1. No mandatory retirement:  Federally – December, 2012  There must be a “BFOR”  Examples: • Pilots • Fire Fighters • Police
  53. 53. Baby Boomers Who Keep on Booming Termination End of Employment 2. No end date of employment: Before 60 Now 60 61 62 61 63 62    64 63 65 64 Retirement 65 Need to performance manage Coax employees into retirement Concern paying severance in order for employee to leave
  54. 54. The Law, HR and Your Older Workers 3. Notice periods for long-serving employees Age Age + Length of Length of Service Service Greater = Greater Severance Severance
  55. 55. The Law, HR and Your Older Workers 4. Benefit coverage for severing employees “Owe the employee 22 months of severance, but possibly 10 years of LTD benefits…” Brito v. Canac Kitchens 2012, ONCA 61 severance (Approximately $5,500) Age 55 Age 57 Age 65 LTD ($200k)
  56. 56. Baby Boomers Who Keep on Booming Alternative Strategies to Termination 1. 2. 3. 4. Phased retirement Fixed on short-term contracts New employment opportunities Early retirement incentives • Most avoid discrimination claims
  57. 57. Baby Boomers Who Keep on Booming Benefits 1. Concerns when employers change benefits for retirees Gratuitous Gratuitous Promise Promise Can Change OR Deferred Deferred Compensation Compensation Cannot Unilaterally Change 2. Keeping your options open Gustavson v. Timberwest Forest Corp, 2011 BCJ 1943 “Out of province medical supplies”
  58. 58. Baby Boomers Who Keep on Booming Benefits 3. Supreme Court to examine whether “severance” and employer-paid pension is “double dipping” severance Age 65 Age 67 See: Waterman v. IBM Canada Ltd. Pension
  59. 59. Baby Boomers Who Keep on Booming Performance The Challenge •Performance Management  Not easy  Will be critical to do •Potential Concerns  Work becomes physically challenging to perform  Productivity diminishes  Absenteeism and attendance
  60. 60. Baby Boomers Who Keep on Booming OHS Considerations An aging body in a workplace… Musculoskeletal Musculoskeletal System System Cardiovascular Cardiovascular and Respiratory and Respiratory Systems Systems Mental Mental Processes Processes Hearing Hearing Vision Vision Skin Skin Sensory & Sensory & Motor Motor Processes Processes
  61. 61. Baby Boomers Who Keep on Booming OHS Considerations
  62. 62. Baby Boomers Who Keep on Booming Performance Potential Strategies Similar to regular employees – but more practical may be required in order to successfully use 1.Use objective and rational evaluation tools 2.Evaluate evenly and consistently 3.Hold regular performance reviews 4.Use clear language 5.When necessary, constructive criticism and clear warnings
  63. 63. Baby Boomers Who Keep on Booming Performance Potential Strategies (continued) 6.Document, document 7.Connect compensation directly to performance
  64. 64. Baby Boomers Who Keep on Booming Accommodation • Duty to accommodate to the point of undue hardship but not necessary to provide the perfect solution • What does this mean for an older worker:
  65. 65. Summary • An aging workforce • A need to manage: • • • • Performance Human rights (accommodation) Occupational Health & Safety A desire to avoid legal issues
  66. 66. SICK AND DISABLED EMPLOYEES • Performance and Disability Management
  67. 67. Performance and Disability Management • • • Performance unrelated to a disability Performance caused by a disability Disability as a performance control strategy
  68. 68. Two Common Questions • • Can we performance manage while on GRTW? Can we terminate employment when someone is on disability?
  69. 69. Disability Unrelated to Performance • • • • Coach/discipline in usual course No need to wait for RTW Should address performance as soon as employee sufficiently healthy to attend a meeting Should advise employee of performance issues as soon as possible
  70. 70. Role Play • • • Bob gets a poor performance review. He is faulted for accuracy. Bob’s supervisor alerts him of another accuracy error and says HR wants to speak with Bob. HR had prepared a PIP for Bob. Bob begins sick leave. His doctor’s note says he will be back in one week. What do you do? What if his doctor’s note said he needed three months off?
  71. 71. Disability Related to Performance • • Obligation to accommodate to the point of undue hardship Consider closely the link between performance and disability
  72. 72. Role Play: The Stressed Paper Maker • • • Employee has weak heart. Doctor says stress causes increased risk of heart attack. Doctor says stress caused by supervisor Employee suggests he work without supervisor. Employee is average performer, but has shown a need for supervision in past
  73. 73. What the Human Rights Tribunal Said • • • • • Had accommodated to point of undue hardship Employer had offered alternative work (employee turned it down) Employer had worked with employee’s doctor Employer had kept employee on LTD pending RTW Employer not expected to cede right to manage
  74. 74. Role Play: The Stressed Chef • • Employee passed over for promotion. Goes on stress leave Tells employer that mundane job is causing stress and needs promotion to return to work
  75. 75. What the Court Said • • • A refusal to alter work practices is not a constructive dismissal Exploring all options, including severance, with an employee is not a constructive dismissal Taking preliminary steps to replace an employee who may be absent indefinitely is not constructive dismissal
  76. 76. Empowerment Through Illness • Balancing: • • • The duty to accommodate the right to manage and direct An employer need not cede a fundamental business condition
  77. 77. Employees who are Sick of Work • • • Use of an illness to control work environment Demands for concessions in management and direction Illness may be legitimate or questionable
  78. 78. Common Themes • • • • Discontent with being managed Desire for greater autonomy or improved position Use of an illness to justify management or autonomy changes Often a refusal to compromise
  79. 79. Employer Responses • • • • Avoid cynicism and disbelief Avoid immediate reaction Focus on process Follow (or create) policy on addressing disabled employees
  80. 80. Medical Opinion • • • G.P. may be a parrot or advocate for employee Get specialist opinion Consider: • • • • Functional capacity evaluation Physical demand analysis Independent medical examination Psychological assessment
  81. 81. Accommodation Options • Return to work • • • • • Weekly indemnity pending recovery or stabilization Termination (with package) • • Own job Own job with modifications Another job Frustration or non-culpable termination Employee should facilitate return to work
  82. 82. 5 Take Away Points • • • • • Have a transparent dispute resolution process Have an effective disability management policy Be proactive with confrontational employees Be patient and objective in addressing employee Follow a process (including getting advice as needed)