The Laws Regarding Employee Monitoring Software

| July 28th, 2016 | No Comments »

facebook at workEmployee monitoring software serves one primary purpose: to make sure employees are doing what they are supposed to.  It can be installed on computers and other devices and can track an incredible amount of information.

For example, while some software simply tracks when employees log on / off their devices or what websites they visit, other software can go much farther.  For example, some can track every keystroke made by an employee.  That can include keystrokes in personal, web-based emails that employees thought would remain private.  Other software includes the ability to replay each word typed and every move of a cursor.

However, just because the software makes these things possible, does not mean that employers should be using them.  In many cases, they should not.  For example, its use may breach an employee’s reasonable expectation of privacy.  This will depend on whether the company specifically prohibits the use of company devices for personal matters, how invasive the software, whether the software is used secretly or with the employee’s knowledge and consent, and many other factors.

Even if it doesn’t breach an employee’s expectations, using monitoring software may breach privacy legislation.  PIPEDA – the Personal Information Protection and Electronic Documents Act – and various provincial acts limit how many private organizations in Canada may collect, use and disclose personal information.  In most cases, organizations would need an individual’s consent before even collecting that information, much less using it.  As a result, keystroke monitoring that happens to catch an employee typing an email about a personal matter – such as a personal medical issue or their financial circumstances – may result in an inadvertent breach of the legislation.

In other words, employers should think carefully about whether they need to use monitoring software and, if so, how to ensure that they only use it with the proper controls, policies and consents in place.

For their part, however, employees also need to beware – many people work in environments where there is no reasonable expectation of privacy or where the information being collected is not ‘personal’ and could, if discovered, put their job at risk.

 

Author: Stephen Wolpert, Whitten & Lublin

Pokémon GO vs. Work FLOW

| July 26th, 2016 | No Comments »

 

no pokemon at work

In case you have been living under a rock for the past month the Pokémon GO game craze has hit Canada.   Players catch, trade and battle Pokémon that pop into existence alongside real-world physical objects when viewed through a smartphone.  A large element of the game requires players to travel to various locations to engage Pokémon.

In less than one month Pokémon GO is reported as being on more than 6 percent of Android devices in Canada, it is the most downloaded app in the history of the App Store and in the past weeks it has had more active users than twitter with more engagement than Facebook.

The game’s level of engagement means a number of people are playing it during their working hours and productivity is likely impacted.  After all, employees have been reported to have left the workplace on unscheduled, unapproved and extended breaks to catch or train Pokémon.  The result at this time seems to be a number of amusing signs posted in workplace but the concern should be greater and knowledge around the topic of time wasting should be understood and properly monitored.

Generally, an employee found playing games on company time does not justify a termination for cause.   Stated differently, catching Pokémon during working hours is unlikely to justify a dismissal without proper notice or payment in lieu of notice.  A termination with cause is regarded as the capital punishment of employment law and time wasting of this sort is not enough to justify it.

Despite the above, various factors could influence a judge to uphold a just cause dismissal.  For example, a disciplinary record tied to time wasting / time theft; game playing while driving or using company equipment (putting the safety of others at risk), an employee’s senior level, game play on a company issued devices, frequent game play, attempts to conceal or deny the misconduct and/or an intentional violation of a company cell phone, hours of work, internet or distracted driving policies may justify a with cause termination.

pokemon go work

Employees should be mindful that even though it is unlikely that their employer can justify a termination for cause on account of Pokémon GO game play they are certainly not free from serious consequences.  Most of Canada’s non-union employers can still impose other discipline and certainly terminate without cause.  Stated differently, employees can be fired for playing the game so long as an employer provides notice of that termination or makes payment in lieu of notice.  If a valid termination clause is in the employment contract the employer might only need needs to provide a few weeks’ notice before the employee becomes a full-time Pokémon GO hunter and Employment Insurance collector.

It will not be long before Pokémon GO results in reported dismissals but don’t let the excitement cloud your reality.  If you have any questions on this topic or other areas of employment law consider contacting our team to assess you situation.  If you are looking for well thought out options our team is well equipped to “catch ‘em all”.

 

 

Author: Paul Macchione, Whitten & Lublin

Know Your Religious Rights in the Workplace

| July 6th, 2016 | No Comments »

religious rights in the workEmployees have a right to be free from discrimination in the workplace that is based on their religious rights.

Discrimination occurs when an employer makes a distinction that has the effect of excluding the employee, denying benefits, or imposing burdens on the employee on the grounds of his or her religion. “Religion” includes practices and beliefs that are part of the employee’s faith or creed.  It does not include personal moral, ethical or political views.

Some forms of religious discrimination are obvious and direct.  For example, an employer’s policy not to hire people from a particular religious group is clearly discriminatory.

There are also less obvious forms of discrimination.  For example, an employer’s policy to have employees work a particular day of the week may have a discriminatory effect on religious groups who require that day off as their holy day.

Many people think that, as long as discrimination is not intended, it does not exist in the workplace.  This is a misconception.  Discrimination may be found regardless of one’s intention to discriminate.  What is important is whether the conduct does, in fact, have a discriminatory effect on the employee.

Where discrimination exists, employers are required to make modifications in the workplace to accommodate the employee’s religious practices.  The exception to this rule is if accommodation would cause the employer undue hardship because of cost, or health and safety reasons.  Employers would be able to avoid accommodation if they can prove that their business cannot sustain the costs of accommodating an employee’s religious practices.  However, the employer must have made significant attempts to accommodate before such a claim can succeed.  There have been very few cases where employers have been able to meet this onerous burden.

If you believe you have been discriminated in the workplace because of your religion, or would like to learn more about your religious rights, contact one of our lawyers today.

Author: Ozlem Yucel, Whitten & Lublin

Bias in the Workplace

| June 24th, 2016 | No Comments »

Bias in the workplaceBias in the workplace is often problematic but it is not on its own illegal.

For example, it is not against the law for your boss to promote someone else or even fire you for the reason that she simply likes him better.  However, if the reason she prefers your co-worker over you relates to a protected human rights ground there is a good chance her actions are illegal.

Under human rights legislation employers cannot discriminate based on any of the following factors:

  • citizenship
  • race
  • place of origin
  • ethnic origin
  • colour
  • ancestry
  • disability
  • age
  • creed
  • sex / pregnancy
  • gender identity
  • gender expression
  • family status
  • marital status
  • sexual orientation
  • receipt of public assistance
  • record of offence

So, in the above scenario, if your boss liked your co-worker better and fired you because she feels he has “more energy and fresher ideas” and hasn’t missed as much time visiting the doctor that sort of bias is illegal as that preference is tied to your age and disability.

Importantly, discrimination does not need to involve a termination for it to be considered illegal.  For example, the following would also be illegal:

  • Preventing employees with accents from having client facing roles;
  • Punishing single parents that call in late because their child was unexpectedly ill;
  • Awarding Canadian citizens more lucrative business opportunities;
  • A practice of not hiring women that are likely to start a family;
  • Denying a transgendered person travel opportunities to areas the employer views as “less tolerant”;
  • Treating normal differences of opinion as insubordinate or confrontational when racialized persons are involved; and
  • Inviting only males to a company sponsored charity basketball tournament.

Employers are wise to have policies and procedures in place that help them avoid bias rooted in discrimination.  These policies should also encourage employees to report the discrimination to the employer and allow for a confidential investigation to take place.

If bias is occurring in your workplace and a protected ground is linked to that differential treatment consider consulting the Whitten and Lublin team for an expert assessment of your situation and a potential damages award.

 

Author: Paul Macchione, Whitten & Lublin

Your Legal Rights in Disability Insurance Disputes

| June 9th, 2016 | No Comments »

disabilityAn employee who becomes disabled, or otherwise becomes incapable of performing the essential functions of their job, and may be entitled to income replacement through the employer’s short-term and long-term disability insurance policies.  The process is not always straightforward, making it important for both employees and employers to understand their rights:

For Employees

Employees have a basic right to dignity and fair treatment in having their disability insurance claims assessed.  While medical evidence will be required to substantiate a claim for disability insurance coverage, the employee will not be subject to the whim of the insurer’s medical team.

Similarly, the employee has the right to have their claim fairly treated, and on the presumption that their claim is legitimate.  An employer or provider that treats an employee with suspicion about the validity of the claim may find itself in hot water if the claim is rejected.

It is common to see an employee’s disability insurance coverage terminated before they are fit to return to work.  An employee may also find their initial application rejected, despite not being able to perform their duties.  Employees are entitled to challenge unfair or unsupported determinations about their coverage, which means that the employee should promptly retain legal counsel if this situation arises.

The result of this right is that the employee is entitled to retain their employment with the employer while receiving disability insurance benefits.  This right, however, is not absolute.

For Employers

In very limited circumstances, the employer may have the right to dismiss a disabled employee, where it appears that the employee will be unlikely to perform the essential functions of their job for the foreseeable future.  An employer should never dismiss a disabled employee without first obtaining sound legal advice.  Disability is a protected ground under both federal and provincial human rights legislation, which means that dismissing a disabled employee may constitute discrimination.

Employers also have the right to be appraised of the status of the employee’s insurance claim.  If disability insurance coverage is rejected or discontinued, the employer may be at liberty to require the employee to return to work, or to dismiss that employee.  These steps should not be taken without legal advice, as termination of disability insurance coverage does not circumvent an employer’s obligations under human rights legislation.

 

Author: Marc Kitay, Whitten & Lublin

Things a Leave of Absence Policy Must Include

| May 16th, 2016 | No Comments »

Leave Of AbsenceLeave of absence policies are meant to provide employees with work-life balance and in certain circumstances, to give employees needed time away from work in urgent or compelling circumstances.  Some employers may also grants leaves for educational or career development.

Certain types of leaves may be at the discretion of the employer, and managers may balance operational needs against an individual’s leave request.   Other types of leaves, however, are non-discretionary, and an employee has a legal right to take the time off of work.  It is fundamental to any leave of absence policy to distinguish between those types of leaves that are discretionary and those that are not.

Job-Protected Leaves

Certain leaves of absence are compulsory under applicable employment standards legislation.   In Ontario, the Employment Standards Act, 2000 (“ESA”) sets out various categories of job-protected leaves, which include the following:

  • Pregnancy leave
  • Parental leave
  • Personal emergency leave
  • Family caregiver leave
  • Family medical leave
  • Critically ill child care
  • Organ donor leave
  • Reservist leave
  • Crime-related child death or disappearance leave in circumstances where a child has died or gone missing as a result of crime

Additionally, under the Ontario Juries Act, an employee who is summoned to attend court as a juror, is entitled to an unpaid leave.

The purposes of the leaves, their length and their eligibility criteria vary. However, all of these leaves are non-discretionary, meaning that if the employee in question is entitled to take the leave, the employer must grant it.

Some employers may choose to pay an employee for all or part of a mandatory leave or provide top-up benefits to supplement employment insurance income, but this is not mandatory.

Under the ESA, employers are required to continue making contributions to the employee’s group benefit plans. This includes ongoing contributions to pension, life and extended health insurance, accidental death and dental plans, if applicable.  Furthermore, employees must allow the employee to continue accrue service and seniority during the leave period.

Most importantly, employees are entitled to be reinstated to their employment following a compulsory leave.  If the employee’s job has been eliminated, the employer is required to reinstate the employee to a comparable position.

Vacation

Provincial employment standards legislation also sets out minimum requirements governing vacation leaves.  In Ontario, employers are require to provide employee with at least two weeks of vacation leave and vacation pay in the amount of 4% of gross wages.

Employers must provide the vacation time, even if an employee does not ask to take it.  Vacation time may be waived only if an employee provides their written agreement to forego vacation and the agreement is approved by the Ministry of Labour.  The employer is still required to process the employee’s vacation pay, regardless of whether the vacation time has been properly waived.

If the employee’s earnings fluctuate over the course of the year, for example, the employee may earn commissions, incentive pay, overtime, in addition to base salary, employers must ensure that when calculating vacation pay owed, that the employee receives a minimum of 4% vacation pay on total gross wages, including variable compensation.

Leaves Related to Disability and Family Caregiving

Separate from the above, employers have a general duty under human rights legislation to accommodate an unpaid leave of absence in the case of an employee who is unable to work because of a disability.  Similarly, employers have an obligation to accommodate time off for an employee is unable to work on account of family caregiving responsibilities. There is no specific time limit to these types of leaves.  The length of the leave depends on the nature of the individual’s needs.   It is important that any leave policy allow the employer flexibility in granting additional time off where needed in these situations.

Consistency

Generally, a leave policy should be applied fairly and consistently across the workforce.  A protocol should be in place for managers to assess leave requests and identify when a leave is compulsory and when it is within their discretion to approve the time off.

Author: Jonquille Pak, Whitten & Lublin

Your Legal Rights After Maternity Leave is Over

| May 4th, 2016 | No Comments »

rights after maternity leaveEmployers are usually obligated to reinstate an employee following a maternity leave.  The employee has the legal right to be returned to the position she held prior to the maternity leave, and if that position no longer exists after the leave, to a “comparable” position.

The “comparable” position must be comparable in all respects – location, hours of work, quality of work, degree of responsibility, job security, prestige, and so forth.

If the employer can prove that the person on maternity leave would have been terminated regardless of the leave, the employer might be able to avoid the consequences of breaching this obligation.  However, the company has the onus of proving its case.

If a company does breach its obligation after maternity leave, the employee can claim lost wages, associated expenses, emotional pain and suffering, and even damages for the “loss of reasonable expectation of continued employment” – this could amount to an extra month’s pay per year of service.

Moreover, if the failure to return to work is found to be a punishment or “reprisal” for taking the maternity leave, then there could be additional damages against the company.

This topic is without a doubt, one of the most misunderstood and contentious issues in employment law. To learn more about your options, contact an employment lawyer who can explain and advise on which steps should be taken to your benefit.

 

Author: Daniel Chodos, Whitten & Lublin

Key Things That Should Be Included In Your Employment Contracts

| April 5th, 2016 | No Comments »

signing empoyment contractsWritten employment contracts are the backbone of most employment relationships in Ontario.  A good employment contract confirms all of an employee’s entitlements pursuant to the ESA, and, ideally, confirms that the employee will receive more.  We know that an employer and employee can agree to negotiate for better benefits than exist in the ESA and that an employee cannot contract for less.  The written employment contract is proof of the parties’ agreement with respect to the terms of employment.

So what do we want to see? First and foremost, we want to see an enhanced termination provision promising the employee more notice, severance and benefits than those available in the ESA in the event of a without cause termination.  After that, the employment contract should include each and every perk and benefit offered during the recruitment process: bonuses, benefits, remote access, flex hours, equity, options, you name it: if you talked about it during the interview process, be sure it makes its way into the final employment contract.

Don’t be afraid to negotiate – most of the time salary, title, and overall compensations are up for discussion.  The employer liked you enough to offer you the job, now’s the time to make sure you’re getting the best deal possible.  You can ask for enhanced severance, extra vacation, to waive a probationary period, to get benefits faster.

Especially if you are leaving secure employment to accept another position, go see a lawyer to have the employment contract reviewed.  There are certain protections we can talk about if you’re being induced away from an existing position based on promises with a new employer. Best practice will be to have all new employment contracts reviewed with counsel to ensure you’re getting everything you are expecting.

Author: Ellen Low, Partner at Whitten & Lublin

Parental Leave For Fathers

| March 31st, 2016 | No Comments »

parental leaveWhat are your options when it comes to parental leave for fathers? In the past, many families assumed that dad should work and mom should stay home with the kids. But parents today often choose to divide responsibilities differently, more same-sex couples are having kids, and numerous other changes have taken hold. As a result, it is now much more common for fathers to take parental leave. So what are they entitled to?

The answer is that they are entitled to everything that a mother is entitled to (except those mothers who took another form of leave, known as pregnancy leave, immediately beforehand).

In particular, at any time in the first year after a child is born or comes into a father’s custody (for example, through adoption), the father can take a parental leave. The leave is unpaid and can last for up to 37 weeks.

To be eligible for parental leave, a father must:

  • Have worked for his employer for at least 13 weeks; and
  • Give at least two weeks notice of the leave to his employer before the child’s arrival, or, if the child arrives earlier than expected and the father stops work, within 2 weeks of stopping work.

Also, circumstances can change during a parental leave, and fathers have the right to take the full parental leave, return to work earlier (but not later), or resign. Whatever their choice, the father on parental leave must give their employer at least four weeks of notice.

 If you have questions about parental leave, we can help.

Author: Stephen Wolpert, Whitten & Lublin

Recognizing Signs of Discrimination in the Workplace

| March 8th, 2016 | No Comments »

discrimination in the workplaceThe most common form of discrimination in the workplace is not immediately obvious and you may not even realize that it’s happening to you. Identifying subtle forms of discrimination requires examining all of the circumstances to determine if you have been treated differently from your colleagues on the basis of such identifying factors as your age, gender, race, or disability.

Some indicators that there might be an issue in your workplace include: a lack of diversity; repeatedly being passed over for a promotion even though you have strong performance reviews; exclusion from training or career development opportunities; favouritism in assigning high profile or lucrative projects; receiving differential treatment (in comparison to your co-workers) with respect to discipline; suddenly receiving negative performance reviews after a long history of positive reviews; being asked to perform tasks with unreasonable deadlines (i.e. you are being set up for failure); exclusion from opportunities for social interaction; being held to a higher performance standard; and unwarranted criticism of soft skills such as your “communication style”.

If you suspect that you are being discriminated against, you should begin keeping a detailed diary of the above types of events and make note of any specific incidents, including dates, times and names of any potential witnesses. You should also consider consulting with a lawyer to discuss your particular situation and to obtain assistance in making a formal complaint where it is warranted.

Author: Priya Sarin, Partner at Whitten & Lublin