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

Recording conversations at work?

| December 4th, 2014 | No Comments »

Are recording conversations at work legal or illegal? Employees and employers alike have raised this question and it is usually not a simple answer. The workplace is an environment where disputes can arise, and when they do, individuals believe that recording conversations is a way to build evidence. This may or may not be the case.

Employment lawyer, Daniel Lublin explains that recording conversations can be deemed legal or illegal based on the participants of the recording. Where deemed illegal, the recorder can be charged with an offence under the Criminal Code of Canada. To further understand the implications of what is legal and illegal, you should consult an expert who can help you understand the risk of recordings.

Read more on this topic and Daniel Lublin’s Globe and Mail column and full article Am I allowed to record conversations at work?

Employment offer was ended before it started

| November 21st, 2014 | No Comments »

Employment offers are known to make recruits pleased and satisfied with the prospect of beginning a new journey. It also gives them a sense of security in knowing that their financial obligations will be met. What if an employee is given a job offer and this offer is ended before employment begins? Does the employee have grounds for a law suit or legal recourse? Does this classify as a breach of contract?

The answer is based on a number of factors, including, but not limited to your ability to obtain alternative employment or restrictions that prohibit you based on your employment contract. Daniel Lublin, Toronto employment lawyer points out that where an Agreement is signed and cancelled before work begins, this is considered a breach of contract. For specific employment advice, consult with an employment lawyer to guide you through the assessment of your situation and to provide you with legal feedback.

Read Daniel Lublin’s Globe and Mail column and full article I got fired after my operation

 

Confidentiality Clauses with Teeth

| November 18th, 2014 | No Comments »

Confidentiality clauses are provisions within an Employment Contract/Agreement that should not be taken lightly. When carefully drafted, they can and have been known to be strictly enforced by the Courts and can be cause for some serious implications. With that being said, employers and employees should consult with an employment law expert to get advice on how to best protect their interests. Employees should read and understand their Confidentiality clause to ensure that their rights are protected under the law.

In Patrick Snay v. Miami’s Gulliver Preparatory School, the Courts enforced the Confidentiality provision, even after reaching a resolution. Mr. Snay was ordered by the Court to repay the entire settlement for breach of the Confidentiality clause. While the case of Jan Wong, a former Globe and Mail columnist who published a book about his employment settlement, was ordered by the Court to repay the entire settlement and cover the Globe’s legal fees. This demonstrates the gravity of a well written Confidentiality clause and the effective use of the legal language.

 

I’m a unionized employee-can I go to court?

| October 30th, 2014 | No Comments »

Unionized employees can have advantages of being represented by an association. They are also confronted with some disadvantages that can leave a bitter taste and feel like they are being neglected. While, the union has the obligation to follow certain procedures to protect their employee’s best interest, they also have the responsibility to make their decision in a manner that is fair and diligent. What happens when the union is unable to pursue the grievance and the employer are unable to act on the employee’s behalf? What other recourse is available to the employee?

Toronto employment lawyer, Daniel Lublin addresses this topic by stating that all unions have a fair duty of representation towards their members.  In addition, employees bear the responsibility to follow grievance procedures as indicated in their collective agreement. If a union is unable to pursue the grievance, the employee cannot sue the employer or the union in court. However, you can file an administrative complaint against the union.

For more information on this topic, read Daniel Lublin’s Globe and Mail column and full article I’m unionized, can I sue my employer or union?

U.S. employer refuses to pay Canadian employee’s wage

| September 29th, 2014 | No Comments »

When a U.S. employer refuses to pay a Canadian employee’s wage and claims they are not within the jurisdiction to file a claim, the employee has options.  The foundation of an employer/employee relationship is that in exchange for an employee’s hard work, the employer pays a salary.  Simply because the employee works from home in Ontario for an employer in the U.S., does not mean that the employer/employee relationship functions any differently.

Daniel Lublin, Toronto employment lawyer provides reader’s with his response to the question, can a Canadian employee file a claim against a U.S. employer for wages owed?  His answer is yes.  You can commence proceedings against the employer in either Ontario or the U.S. state where the business is located. Although choosing where to pursue the claim is a matter of strategy.

Initiating the claim in Canada can be more costly for a number of reasons. Mr. Lublin explains that the best option is to hire a lawyer in the U.S. state where the business operates and explains in more detail the reasoning for this.

Read more about this topic in Daniel Lublin’s Globe and Mail column and full article My U.S. employer owes me $36,000 and refuses to pay

Publicly criticizing your employer – Is it considered misconduct?

| June 6th, 2014 | No Comments »

Nothing is more public than expressing your work frustrations and criticizing your employer on social media sites and the internet.  This is not the smartest idea considering the workplace consequences and the potential damage to your career.

As Daniel Lublin, Toronto Employer Lawyer explains in his latest Globe and Mail article, “An employee’s public comments about his employer can be considered misconduct where those statements are harmful to the employer’s interests or damaging to its business. One reason is that employers can be exposed to liability because of statements made by their employees”.

Employees can speak their mind privately or publicly as long as their comments don’t negatively affect their employer’s business.  It is always wise to consider how the employer will feel about the statement, the consequences and whether voicing your opinion is worth the trouble it may cause you.

To find out more on the topic from a legal perspective, read Daniel Lublin’s article in the Globe and Mail, Speaking your mind can hurt your career.

Court blocks executive’s move from Blackberry to Apple

| March 28th, 2014 | No Comments »

On March 24, 2014 the Ontario Superior Court of Justice prevented a senior executive at Blackberry from moving to its major competitor, Apple.

In BlackBerry Limited v. Marineau-Mes, 2014 ONSC 1790, the debate centered on an employment contract containing a six-month resignation provision.  Among other things, Marineau-Mes had promised to give Blackberry six months’ advance written notice of his intention to resign.  He did not.

On December 23, 2013, Martineau-Mes gave Blackberry notice of his resignation.  On December 24, 2013 he advised that he would be joining Apple in two months’ time in California.

Blackberry argued Martineau-Mes was contractually obliged to provide six months’ notice.  Martineau-Mes argued that, if anything, Blackberry was limited to damages for replacing him if he failed to give adequate notice, and that he was not required to give notice because:

  1. The contract violated the Employment Standards Act, 2000 (the “ESA”) because it did not provide him with adequate vacation pay;
  2. The contract itself was unenforceable due to a lack of consideration;
  3. The six-month resignation period was tantamount to a non-compete provision and therefore void against public policy; and
  4. Pursuant to the contract, he had “Good Reason” which would allow him to resign without providing six month’s advance notice.

Despite able arguments, the court was not convinced that the termination provision offended the ESA or that Martineau-Mes had not received consideration in exchange for the contract when he took on the role of Executive Vice President.

Further, the court did not agree that the six-month resignation provision was akin to a non-competition clause because, among other things, Martineau-Mes knew that Blackberry needed him to transition his role and that he must remain available to perform his duties during the period of resignation.  Even if the provision were to be found to be a non-compete, the court deemed it reasonable in the circumstances.

Finally, the court was not convinced that Martineau-Mes had “Good Reason” pursuant to the contract to resign without notice.  Even if there was Good Reason, Martineau-Mes could only effect this clause if he gave Blackberry 15 days’ notice and a chance to rectify the breach.  He did not and therefore could not rely on the provision.

Ultimately, the court determined that Blackberry was entitled to a declaration that the contract was binding and that Martineau-Mes was obliged to provide six months prior notice of his resignation.  Effectively, this blocks Martineau-Mes from joining Apple until June 23, 2014.

This is an unusual case as not only is it rare for an employer to pursue an action against a departing employee for failure to provide reasonable notice of resignation, but even rarer still for an employer to seek enforcement of the resignation provision.  If any, an employer will occasionally sue for damages caused by the employee’s failure to provide reasonable notice.  Presumably, Blackberry decided to pursue the action to prevent one of its executives from moving to a competitor for as long as legally possible, but the case does provide an interesting precedent for an employer enforcing a resignation provision.

GM employees win lawsuit

| July 19th, 2013 | No Comments »

GM retirees win lawsuitAbout 3000 retired employees of General Motors Canada have won a class-action lawsuit against their employer, who was found wrong in cutting healthcare and life insurance benefits of the retirees.

Daniel Lublin was asked to appear on CTV News to comment on the recent decision of the Ontario Superior Court. He explained how important is to have proper employment contracts as well as workplace manuals and policies in place.

He says there are ways for employees to protect themselves from these changes even if the employer is going through economic hardship. To learn more, watch Daniel’s interview on CTV News.