current issues in employment law

Current Issues in Employment Law

B.C. Legal Management AssociationNovember 13, 2013

Richard Press 604.643.6444Davis LLP

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

SOCIAL MEDIA

• Emerging Trends

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

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.

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.

Loss of Productivity at Work

Creation of a Poisoned Work Environment:

Aliens around the Coffee Table

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...

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

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.

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.

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....

Leaks of Confidential Information

Applebee's

Source: reddit.com

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

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

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??????”

Lougheed Imports

Labour Relations Board: •No expectation of privacy•Had over 100 ‘friends’, some of whom were fellow employees

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

Damage to an Employer’s Reputation

Bell Technical Solutions v Communications•Comments about company and supervisor were derogatory•Had 140 Facebook “friends” - so not private

Misuse of the employee’s

social media accounts

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

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

Porter Airlines

• Union claims freedom of speech• Decision will impact what unions can say about the

employer during a labour dispute

Misuse of the Employer’s Social Media Accounts

“We’re tweeting live from HR where we’re all being fired! Exciting!!”

Best Practices

Create and Update Employer Policies

Best Practices

• Social Media Policy• Confidentiality Policy

Best Practices

Education and Training

Best Practices

Identify High Risk Employees

Conclusion

Social media is a valuable tool for an employer for marketing, connecting with customers, and managing employees.

SMARTPHONES

• Overtime Issues

Boundary between “working time” and “non-working” time has become increasingly blurred.

When is an employee working?

“Unauthorized” work outside regular hours

“On the Internet, no one knows you’re a dog.”

The claim for unpaid overtime against Scotiabank is for:•$250 million in general damages and •$100 million in punitive damages

No Class Actions for claims under BC Employment Standards Act

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.

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?

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.

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

What if the employee is not on call?

• No cases• No policy

Possible Overtime

Probable Overtime

WORK FROM HOME

• Employer Consideration

Employment Standards

• Daily hours• Overtime

WorkSafeBC

• Safe work site• Ergonomics• Reporting and managing injuries

Operational Issues

• Productivity (Measuring metrics)• Teamwork (integration)• Direction and supervision (managing the away

employee)

OLDER EMPLOYEES

• Transition and Performance

The Human Resources Context

1. Baby Boomers (1946 - 1964)

2. Generation X (1965 - 1980s)

3. Generation Y (1980 - 2000)

4. Millennials (2000 ------>)

Greater number of older workers in the workforce

Baby Boomers Who Keep on Booming

• The Challenges: Aging workforce Smaller pool of workers Legal obligations Medical and benefit programmes

• The Advantages:MaturityExperienceJudgment

Baby Boomers Who Keep on Booming

The matters of concern that we are seeing in our practices:

Termination Options and Severance CostsTermination Options and Severance Costs

Benefit PlansBenefit Plans

Performance Management Performance Management

Duty to AccommodateDuty to Accommodate

Baby Boomers Who Keep on Booming - Termination

1. No mandatory retirement: Federally – December, 2012 There must be a “BFOR” Examples:

• Pilots• Fire Fighters• Police

Baby Boomers Who Keep on Booming - Termination

2. No end date of employment:

Before

Now

60 61 62 63 64 65

End of Employment

Retirement

60 61 62 63 64 65

Need to performance manage Coax employees into retirement Concern paying severance in order for employee

to leave

The Law, HR and Your Older Workers

3. Notice periods for long-serving employees

AgeAge Length of ServiceLength of Service

Greater SeveranceGreater Severance

+ =

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

Age 55 Age 57 Age 65

LTD ($200k)severance (Approximately $5,500)

Baby Boomers Who Keep on Booming - Alternative Strategies to Termination

1. Phased retirement

2. Fixed on short-term contracts

3. New employment opportunities

4. Early retirement incentives• Most avoid discrimination claims

Baby Boomers Who Keep on Booming - Benefits

1. Concerns when employers change benefits for retirees

2. Keeping your options openGustavson v. Timberwest Forest Corp, 2011 BCJ 1943

“Out of province medical supplies”

Gratuitous PromiseGratuitous Promise OR

Can Change Cannot Unilaterally Change

Deferred CompensationDeferred Compensation

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

Pension

See: Waterman v. IBM Canada Ltd.

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

Baby Boomers Who Keep on Booming - OHS Considerations

An aging body in a workplace…

Musculoskeletal System

Musculoskeletal System

Cardiovascular and Respiratory

Systems

Cardiovascular and Respiratory

SystemsSkinSkin

HearingHearing

VisionVision

Mental Processes

Mental Processes

Sensory & Motor

Processes

Sensory & Motor

Processes

Baby Boomers Who Keep on Booming - OHS Considerations

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

Baby Boomers Who Keep on Booming - Performance

Potential Strategies (continued)

6.Document, document

7.Connect compensation directly to performance

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:

Summary

• An aging workforce

• A need to manage:• Performance • Human rights (accommodation)• Occupational Health & Safety

• A desire to avoid legal issues

SICK AND DISABLED EMPLOYEES

• Performance and Disability Management

Performance and Disability Management

• Performance unrelated to a disability• Performance caused by a disability• Disability as a performance control strategy

Two Common Questions

• Can we performance manage while on GRTW?• Can we terminate employment when someone is on

disability?

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

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?

Disability Related to Performance

• Obligation to accommodate to the point of undue hardship

• Consider closely the link between performance and disability

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

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

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

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

Empowerment Through Illness

• Balancing:• The duty to accommodate • the right to manage and direct

• An employer need not cede a fundamental business condition

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

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

Employer Responses

• Avoid cynicism and disbelief• Avoid immediate reaction• Focus on process• Follow (or create) policy on addressing disabled

employees

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

Accommodation Options

• Return to work• Own job• Own job with modifications• Another job

• Weekly indemnity pending recovery or stabilization• Termination (with package)

• Frustration or non-culpable termination

• Employee should facilitate return to work

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)