Most businesses, and many employees, regularly use computers in the workplace. Often, employers assume that since they own the computer, they own all the information on it.  When it comes to information put on a workplace computer by an employee, however, the answer may not be so simple.  There were two significant decisions on computer privacy in 2012. Although neither case was an employment law decision, they both have important implications for computers in the workplace.

The first case is R. v. Cole. Mr. Cole was a high school teacher who used a laptop issued by the school board.  When a technician for the board ran a routine check, he found that there were photographs of a naked student on Mr. Cole’s computer. The board seized the computer and searched it, then called the police and gave them the laptop, as well as discs with Mr. Cole’s internet browsing history. A long legal battle ensued over whether the police should have obtained a search warrant for the computer. In the end, the Supreme Court of Canada ruled that Mr. Cole had a reasonable expectation of privacy in the computer and the police should have obtained a search warrant.

R. v. Cole was a criminal law case, and the Supreme Court in its decision said it would “leave for another day the finer points of an employer’s right to monitor computers issued to employees”. Nonetheless, the Court’s comments provide some important insights.  The Supreme Court looked closely at the workplace policies and practices at the board, which the Court said diminished Mr. Cole’s expectation of privacy, including:

• the board’s computer policy was up-to-date, and asserted ownership of both the hardware and the information on the computer and network;
• the board reminded the employees every year of the policy; and
• the policy provided that email could be monitored and that “users should NOT  assume that files stored on network servers or hard drives of individual computers will be private.”

Even with all of these helpful factors, the Supreme Court still concluded that the police should have obtained a search warrant. But that wasn’t the school board’s problem. The Supreme Court did not have any issue with the board’s search of the computer. As the employer, the board was within its legal rights to review the contents of the computer’s drive.

In a criminal case, the available remedy for an unreasonable search is to throw out the evidence. That doesn’t normally happen in employment law cases. What is the consequence of an unreasonable search? There are a few possibilities. One possibility is a claim for constructive dismissal.  If the employer destroys the employee’s trust, the employee can quit and demand a severance package. The second possible remedy for an employee comes from another case last year.

The second important computer privacy case from 2012 was Tsige v. Jones. In this case, a bank employee, Winnie Tsige, snooped the bank records of Sandra Jones, one of the bank’s customers. Ms. Tsige was in a relationship with Ms. Jones’ former common law husband. She wanted to know if Ms. Jones’ ex-husband – now Ms. Tsige’s partner – was really paying child support to Ms. Jones like he said he was. So, she looked at Ms. Jones’ bank account 174 times over 4 years. When Ms. Jones found out, she was understandably upset. Although the bank suspended Ms. Tsige for a week, that didn’t do anything to help Ms. Jones. She sued for damages.

The Ontario Court of Appeal ultimately decided to recognize a new cause of action for cases like this, called “intrusion upon seclusion”. The Court identified three required elements for this new claim: (1) the defendant’s conduct must be intentional (which includes recklessness); (2) the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and (3) a reasonable person must regard the invasion as highly offensive, causing distress, humiliation or anguish. The Court specifically stated that no loss of money was necessary. The Court suggested that ordinarily damages would not exceed $20,000 in such cases, and it awarded Ms. Jones $10,000.

In the wake of R. v. Cole and Tsige v. Jones, employees – and recently terminated employees – have already begun to assert that employer searches of their workplace computers are an “intrusion upon seclusion”. How can an employer monitor and search the computers that it puts in the hands of its employees? The key is to manage expectations. Employers can minimize their employees’ expectation of privacy in their workplace computers by considering the follow

• Adopt a proper computer use policy, outlining what employees are allowed to do and the monitoring and searching the employer may do;
• Ensure the policy is signed by the employees and they are regularly reminded of it; and
• Implement the policy and follow through so that the reality of how employees use their computers and how the employer monitors that use matches the policy.

How much privacy can be expected at work wherein everyday we are using our employer’s computers and equipment?  Employers want to make sure that they are receiving their return on investments when collecting basic information about their employees pay, attendance or benefits, and they want to be able to ensure that work is being done efficiently and safely.  Though, it is normal to give up some privacy while working for someone else, how far can employer’s watchful eye go and do employers have right to spy on workers?

Toronto Employment Lawyer, Daniel Lublin explains in his latest Globe and Mail article that generally, it is not illegal in Canada to hire a private investigator to spy on an employee who says he or she is too sick to work.  Especially if it is found that the same employee is performing physical tasks that they say they cannot perform while at work.

Most often if there is a problem with theft or security, employers will install security cameras focused on a specific location; which is not illegal.  They have the right to monitor their staff in some situations, but only if this is done in good faith and where there is a reasonable belief that an offence is being committed.  However, if there is no good reason for a camera and it is being installed without employees’ knowledge, the best first step would be to consult with an employment lawyer to discuss the employer’s new policy and see what options one might have.

Employers often monitor employees’ workplace computers, their e-mails and their Internet usage to ensure the devices are not being misused.  New fingerprinting technology is enabling employers to use more sophisticated machines and scan employees’ fingerprints in order to monitor their absence during the work day.  Due to the absence of stronger privacy laws there is no easy way to prevent the employer from installing those machines.

As part of the hiring process, job candidates’ public online profiles are often reviewed by employers and recruiters.  Provided that hiring decisions are made on the basis of legitimate job qualifications that are thereby revealed and not on any human rights grounds, there is currently nothing illegal about this practice, although some may view it immoral.

But whether or not privacy is protected by law or contract, respecting privacy in the workplace makes good business sense.

Daniel Lublin’s article and some more information about privacy law can be found in his Globe and Mail column.

If you thought the worst question you could get at an interview was to explain one of your weaknesses, think again.  You may have to look inwards even deeper and make a decision on how much privacy means to you, and if any job is worth giving it up.

An article on thestar.com tells the story of a man who, while being interviewed for a police job was asked for his Facebook password.  Though taken aback, he offered to enter his password and leave the room.  His interviewer asked again, and he reluctantly divulged.

If you hold your Facebook account (or any other social media website) close to your heart, this question might have startled, and even offended you.  At the moment there are no laws that prevent employers from asking, but employment lawyer Daniel Lublin stresses that interviewees should not feel compelled to tell.

Lublin also suggests that interviewees consider the appropriateness of the question.  For example, the field of law enforcement or political leadership might more easily justify the question, when compared to the retail industry.  Since most of the public would likely view such a question as overly invasive, it is unlikely that it will become a commonly asked question in the workplace.

Before refusing to answer, interviewees should consider the reasonableness of the request.  Employers should be aware of how such a question can be perceived by job candidates – though you may dissuade those with skeletons in their inbox, you may also discourage highly qualified candidates who object on principle.

There’s a good chance a bully is blazing a trail of destruction in your workplace and that you’re unknowingly eating some very real costs.  With a reported half of the workforce claiming to have witnessed or been a victim of workplace bullying, it’s a problem that you can’t afford to ignore.

David Whitten, partner of Whitten and Lublin, and a workplace bullying expert reviews some of the unfortunate side-effects workplace bullies can have on both the company and the individual in an article in the Globe and Mail.

He explains that the growing number of workplace bullies reported by the Workplace Bullying Institute is likely due to a scarce supply of jobs and promotions in a tough economy, which can often lead to senior executives condoning “hard” management styles.  Whitten offers the following advice:

For the employee – Chronicle your instances of abuse early on with HR and your physician and/or counsellor.

For the employer – Workplace bullies will often target highly skilled employees whom they see as a threat.  This holds the potential to lower productivity, decrease morale, and increase absenteeism and disability claims.

Work towards creating a positive work environment in which individuals feel comfortable coming forward with concerns.  Rather than assume an employee is being “overly-sensitive”, investigate all concerns and make an effort to help the concerned party feel that they are returning to a safe environment.

For more tips on how to manage bullying in the workplace, you can read the full article *here*

Two intoxicated executives who caused the diversion of an Air Canada flight have been dismissed for unprofessional behavior, the Globe and Mail reports.

According to one passenger, the two Ontario residents were seen fighting with flight attendants, subdued by the crew, and handcuffed to their seats.  The two men pleaded guilty to mischief and have been ordered to pay $72,000 in restitutions.  One of the statements provided by the company was that Research in Motion (RIM) “expects that its employees conduct themselves in a manner reflective of our strong principles and standards of business behavior.”  Although this case seems pretty clear cut, it is worth flagging a few things:

1. Inebriation does not necessitate immediate dismissal.   Be mindful of the possibility that the employee is not merely intoxicated, but an alcoholic – a disability that is covered by human rights legislation.  In such an instance, firing them without a proper investigation could trigger a wrongful dismissal case, based on a failure to accommodate.
2. Handle departing senior executives with care.  Especially in the tech industry, competition can be quick to pick up the scraps, and employees with valuable trade secrets may be less inclined to keep them if they leave embittered.
3. Employees present for the disruption should be offered the resources to deal with any anxiety or emotions stemming from the incident.

Damage control goes beyond appeasing the public.  Amidst considerable pressure to act quickly, ensure that you don’t do so rashly.  If you’re still uncertain, don’t hesitate to reach out for advice from a lawyer.

Employment lawyer David Whitten was recently published in the November 21^st issue of Canadian HR Reporter, a national journal for human resources professionals.  The article titled, “Deconstructing random drug, alcohol testing” tackles an issue that recently surfaced as a result of a fatal accident involving a TTC bus and its driver who was later convicted of drug possession.

The accident, which occurred in August of this year, caused the TTC to reevaluate their policy for drug and alcohol testing.  When words like “mandatory” were brought up, the TTC union and members of public raised the issue of employee privacy.  Whitten picks up from there in describing the risks and rewards of different policy options for HR managers.

Firstly, breathalyzer tests are less invasive of an employee’s privacy and less likely to be opposed. Why? Because the breathalyzer measures an employee’s impairment at the time of the test, whereas other tests can show drug use from weeks prior and are less accurate in determining impairment.

Policies that call for the immediate dismissal of employees who fail drug tests are generally rejected by courts, as addiction is a form of disability that employers have a duty to accommodate for.

Ultimately, Whitten says that the best measure is to abide by the “Golden Rule” – treat employees with the same dignity and respect that you would expect in similar circumstances.  For example, if an employee is in a position in which sobriety is required to uphold public safety, consider transferring them elsewhere while they seek help.  Compassion can go a long way in creating a positive corporate culture, and it will also go a long way in court, should your actions ever be challenged.

Top Five Staffing Mistakes Managers Make and What to do About It!

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Friday, September 23, 2011

8:30 am to 11:30 am

SuiteWorks Business Center

92 Caplan Ave.,

Barrie, Ontario L4N 0Z7

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Join David Whitten of Whitten &Lublin LLP and Theresa Dowsett of Workforce Acceleration and Ryan-Dowsett Paralegal Services for a FREE seminar for business owners. Learn the Top Five Staffing Mistakes Theresa encounters, and hear what David has to say on how to avoid making them and protecting yourself if you do.

David is a recognized employment law expert and a founding partner of Whitten & Lublin LLP, a boutique employment law firm focused on delivering strategic resolution to workplace issues and challenges. The firm offers expert advice to both employers and employees.  Therefore, David has experience on both sides of the table. To see David’s full bio, click *here*

Over the past 15 years, Theresa has created a full time management consulting and human resource management firm focusing on leadership development, team building, improving workplace culture, conflict resolution, building employee relations, and WSIB/Health & Safety Claims Management. Theresa has also been involved in numerous third party investigations into allegations of inappropriate behaviour at work so that companies may meet their due diligence obligations, and understand the underlying root cause of personality and operational problems at work.

The seminar is free, and seating is limited.

Please RSVP to Theresa at theresa@WorkforceAcceleration.com

Knowingly or unknowingly, employers engage in workplace practices that help tip the scales in favour of dismissed employees.  In last week’s Metro, employment lawyer Daniel Lublin describes five common workplace blunders, which are reviewed below:

1. Paying only the minimum on dismissal

Assuming it will go without protest, employers often make a practice of offering the minimum.  Read about a case*here* that explains why courts are critical of this approach.

2. Probation

Employers will often draft contracts that make it seem as though probationary periods and severance provisions are non-negotiable.  This is not the case.

3. Resignations

Employers may pressure an employee into leaving, but a true resignation must be voluntary.  Lublin writes about the consequences of being unclear on the difference between a termination and a resignation *here*.

4. Workplace investigations:

“Ironically, employees caught lying during the investigation will give their employers cause for dismissal when their initial behavior did not. “  The captain of a BC Ferry ship found this out the hard way when he was questioned during an investigation into the ship’s sinking.

5. Not properly documenting discipline

In order to uphold dismissal, Lublin says that “courts require that progressive or corrective means should be used first”.  Employment lawyer Cedric Lamarche offers some great ways to address poor conduct in an earlier entry that can be found *here*.

Being aware of these common misconceptions will help advise best practices for managers and HR staff – whereas turning the blind eye will likely lead to costly lawsuits.  Contact Whitten and Lublin if you are curious about how your workplace practices and policies measure up.

Earlier this year, a former employee of JetBlue became a modern-day icon to disgruntled workers by way of an infamous resignation.  Following a confrontation with a passenger, airline attendant Steve Slater announced via intercom, “To the f—–g a–hole who told me to f–k off, it’s been a good 28 years.” He slid down the plane’s emergency chute, and minstrels will no doubt sing of his tale for years to come.

An article written in thestar recently reviewed Slater’s story as well as several others that have since occurred.  These public and publicized resignations seem to have a lot of employees on the edge of their seat, wavering in their judgment to perform their own theatrical grand-stand.

hittheslide.read-this.org is a website that encourages employees to quit their job “in style”.  Browsers are encouraged to send in videos that showcase how they “hit the slide” – a colloquial reference to Slater’s slide down the emergency chute.  Sounds pretty exciting right?

Before you grab your camcorder and hatch a scheme, consider some thoughts employment lawyer Daniel Lublin raises in the article.  Firstly, “Employers read blogs and Facebook profiles and twitter postings.”  Having your grand moment scattered about the web is not likely going to impress recruiters.

Lublin also says that “It’s a giant misconception that resignations require two weeks’ notice,” – If you are in a senior position or leave in a manner of bad faith, you may not only be losing your severance, but it could end up costing you a lot more if your employer decides to sue.  One of the outcomes of Slater’s case was jail time and a $10,000 fine.

Consider the consequences before “hitting the slide” – although you may entertain some coworkers and strangers on the net, this is one scenario where the costs definitely outweigh the momentary benefits.

Often, employees will draft letters to employers protesting a job change or explaining a particular action.  Some of the more “careful” ones will have lawyers do this for them, but a recent case from Vancouver illustrates why lawyers should be mindful of striking a proper balance between voicing a concern and “strong-arming” an employer.   Daniel Lublin writes about this unusual case in his weekly column in the Metro titled, “Sometimes a lawyer can be perilous”.

Sukhwinder Grewal was a branch manager for Khalsa Credit Union for almost 17 years.  When Grewal’s behavior was criticized by her boss, Dalbir Sohi, she would often respond with a written letter of explanation.  One day, Sohi discovered errors in some of the details for Grewal’s personal mortgage and sent a memo to bank personnel calling the mortgage a “scandal”.  Before he could speak with Grewal about it, she left on disability leave.

Grewal returned, displeased about the allegations and concerned that Sohi had crossed a line and invaded her privacy by investigating.  In response, Grewal’s lawyer drafted a letter that read:

We demand that within 21 days from the date of this letter you issue a written apology to Mrs. Grewal acknowledging that your actions in going to the board of directors, testifying on oath at the FICOM hearing, levelling this untrue accusation of a mortgage scandal at her and repeatedly making baseless allegations of performance failures in her job as a manager were done by you in bad faith with the intent of injuring Mrs. Grewal and her reputation. You must promise to refrain from any and all such conduct in the future…

In court, the judge agreed with the credit union’s view that Grewal’s actions and the strong wording in the letter had repudiated the employment contract.

Typically, dismissal for cause that is predicated upon a single action is only upheld in exceptional circumstances.  Because Grewal was a branch manager at the bank, the judge reasoned that “it was essential she retain the confidence of her superiors.”  Following the final letter, this was no longer possible.

Although the letter did not solely determine Grewal’s case, Lublin says that it certainly tipped the scales against her.  Employees should be careful of the extent to which they criticize superiors – although it is allowable, the courts recognize certain limits and are willing to enforce them.