Random Alcohol and Drug Testing Policy: When is this discrimination in Safety Sensitive Workplaces

| August 4th, 2017 | No Comments »

Under human rights law, individuals that suffer from addiction are protected under prohibited grounds of discrimination. For this reason, any policy that has an adverse effect on employees with addictions will have to be a bona fide occupational requirement (BFOR).  This means that employees found in violation of such policies will have to be accommodated for up to the point of undue hardship.

For a job requirement or workplace policy to qualify as a BFOR, it first has to rationally connect to the performance of the job. For random and unannounced drug/alcohol testing in a safety sensitive environment, the goal would be that the employees performing the job are doing so under conditions that do not compromise safety. The condition of sobriety definitely rationally connects to the objective of workplace safety. Secondly, the policy has to be implemented with honesty and good faith. In this instance, it is reasonable to believe that random testing is a tool that would contribute towards a safer working environment in safety sensitive workplaces.

Lastly, the policy must be reasonably necessary to accomplish the objective of workplace safety. To establish this, it must be shown that not only is the policy necessary, but that impaired individuals cannot be accommodated without the employer suffering undue hardship. This requires exploring possibilities such as modifying tasks or providing alternative work. For workplace that is safety sensitive, there may not be alternatives to accommodate those unable to perform work in safety sensitive roles. It is always best to consult with an employment law expert when seeking to accommodate with minimal options. At the very least, an attempt must be made by the employer.

In terms of policy, employers should be cautious when implementing random drug testing. Methods of testing that do not measure present impairment will be found to be in violation of human rights. Methods of testing must be able to test for present impairment because this is a direct measure of an individual’s ability to perform while on the job. In the eyes of the law, measuring past impairment discriminates against those with addiction, while providing little indication of their present ability to perform their jobs safely.

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

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?

The workplace computer and your legal rights

| September 23rd, 2014 | No Comments »

workplace computerA termination of employment can give rise to a number of factors that can cause frustration. Whether you are a long term or short term employee, you may or may not decide to save your personal files on your workplace computer.  If you save them on your workplace computer, what are your legal rights to them upon termination?

Daniel Lublin, Toronto Employment lawyer gives his response in his most recent Globe and Mail article where he says that the distinction between a picture hanging on your workplace wall and a picture stored on your workplace computer is very little. The factors used to establish if the contents in a workplace computer belong to the employer are: whether or not an employer authorizes the use of a workplace computer for personal use and/or a contract that states the photographs or documents belong to the employer.

To find out more, read Daniel Lublin’s Globe and Mail column and full article, My company fired me and won’t give me my pictures.

Is Mandatory Retirement Legal?

| August 15th, 2014 | No Comments »

Every employee is entitled to be protected and accommodated according to the law, based on certain grounds.  Two grounds for discrimination leave employees wondering what their legal rights are; age discrimination and sick leave based on disability.

Readers ask, is mandatory retirement legal? Daniel Lublin, Toronto Employment lawyer explains in his recent Globe and Mail article that mandatory retirement is in fact illegal. Employees are protected from age discrimination and cannot be forced to retire at 65 or any other number. The exception to this rule is where age plays a role in an employee’s ability to perform.

Another scenario is where employers will sometimes contract the services of third-party disability management firms to assist their employee’s in adjudicating their claims for benefits. The questions that arise from this situation are: are third-party firms entitled to information regarding my health condition? And what are my rights in relation to confidentiality and privacy?  Mr. Lublin explains that if you don’t provide the required health information, you can be denied benefits. These firms normally do not share your health information with employers.

Daniel Lublin’s full article Does mandatory retirement apply to contractors? can  be read in his Globe and Mail column.

Your legal rights when dealing with a recruitment agency

| July 28th, 2014 | No Comments »

Most often young graduates will list their names with a recruitment agency in hopes of finding employment opportunities faster than searching on their own. However, time goes by and after a period of unemployment, you decide to search on your own. You find that some employers refuse to hire you because the agency submitted your name first, without your permission. Since the employer is expected to pay a fee of your wages, this does not sit well with them and those opportunities are lost. What steps do you take to prevent this from happening in the future?

Daniel Lublin gave his opinion in the Globe and Mail article on this subject. What he explains is crucial to continuing your search efforts. Firstly, you need to terminate dealings with the agency immediately. Whether or not there is a signed contract, they do not have the legal right to continue to act on your behalf without your authorization or consent. Secondly, send a letter to the agency’s director confirming that your dealings with them are over and that they are not permitted to continue to use your name for future searches. If they are still reluctant to do so, advise them of your intent to consider your legal options. Their unethical practice may be halting your employment opportunities. If at any point you believe that an employer may be conflicted with this issue, clarify to them that you are not associated to any agency.

To find out more on the topic read the full article published in the Globe and Mail, “A recruiter is sabotaging my son’s job search”.

Privacy in the Workplace; Employer Collection of GPS Information from Cell Phones Issued to Employees

| December 3rd, 2013 | No Comments »

Concerns About Privacy in the Workplace

In this new digital age, concerns about privacy in the workplace are becoming increasingly important. Since privacy legislations in several Canadian jurisdictions are similar, although not an Ontario decision, a decision from the Office of the Information & Privacy Commissioner for British Columbia may prove instructive.

Collection and Use of Global Positioning System Information

The issue in Kone Inc. (Order P13-01) (2013 BCIPC 23 (CanLII)) involved the collection and use of Global Positioning System (“GPS”) information from employer-issued cellular phones to its elevator service maintenance employees. The employees in question generally worked alone and were dispersed across wide geographic areas.

The employees complained that the information collected was in contravention of BC’s Personal Information Protection Act. Mechanics were to transmit to the phones information about when they were “on duty” and “off duty,” as well as when they arrived or left client sites. The GPS information was only sent to the employer, Kone Inc., when the mechanic was “on duty”. The phone would be set “on duty” during the workday, save the times when the employee was on break. The transmitted information would be downloaded to Kone Inc’s computer system.

Kone stated that the information collected was for workplace management purposes, and did not violate privacy laws.  The employees disagreed, stating that the information was “personal information” and argued that the employer should disable the system and use a reporting system similar to that used prior to the introduction of phones.

The IPC reviewed the complaint and found that the manner, amount and type of information collected was reasonable use of management rights.  To address employee concerns about privacy, although finding the employer had complied with and acted in a manner consistent with the Personal Information Protection Act, the Commissioner recommended that KONE “create a specific policy for the phones that comprehensively set out the purposes for which the GPS information may be collected, used or disclosed . . . which could provide existing (and new) employees with a single, clear and continuing source of notice of KONE’s purposes for the technology.”

Privacy in the Workplace and Employer Decisions

This decision demonstrates that employer decisions on “technological monitoring” are given reasonable interpretations so as to not interfere with business operations. No doubt the balancing test between employee privacy rights and employer rights to manage the workforce will continue to evolve as technology develops.

All situations are different, and the above is not to be taken in whole or in part as legal advice. If you have questions about your particular situation, feel free to contact the lawyers at Whitten and Lublin.

Shhhh! Confidentiality Clauses Are Important

| November 5th, 2013 | No Comments »

Looking at a Settlement Agreement

When there’s been a settlement agreement between an employer and employee, there’s often a confidentiality clause inserted into the agreement.  Confidentiality clauses generally restrict the employer or employee from discussing the decision reached or terms agreed to by the parties in resolving their dispute. These are so because confidentiality is thought to be vital to resolving a dispute.

Confidentiality Clauses and Severe Consequences for Breaching

An arbitration case this summer (2013 CanLII 53696 (ON LA)) illustrated that these confidentiality clauses are taken seriously and if breached, can result in severe consequences for the breaching party.

Constable McRae, a police officer with the Barrie Police Services Board was represented by a union who entered into a settlement agreement with his employer. The agreement had a clear provision: ‘This agreement is strictly confidential and without prejudice or precedent to other Matters’.

Despite the language in this agreement, McRae posted the details of the settlement agreement on, of all places, the Employee Bulletin Board.

The Police Services Board, McRae’s employer, took issue with this highly visible posting and asked the arbitrator involved to issue a remedy. The arbitrator noted this as a deliberate breach of the confidentiality clause and ordered McRae to pay back the funds issued to him out of the settlement agreement.

Confidentiality Clauses Must be Taken Seriously

This illustrates that confidentiality clauses must be taken seriously. It may cost (what you got through settlement) if you seek to be a blabbermouth.

All situations are different, and the above is not to be taken in whole or in part as legal advice. If you have questions about your particular situation, feel free to contact the lawyers at Whitten & Lublin.

Recruitment: Is Your Photo more Important than Your Résumé?

| August 9th, 2013 | No Comments »

There are all sorts of dating websites out there that might shock you.  Ones exclusively for millionaires, ones where people will pay tuition in exchange for a relationship, and ones like beatifulpeople.com, where membership is exclusively limited to the “attractive”.

The process: choose your hottest photo, click upload, and before you know it a global community of beautiful people will have democratically decided by majority click of the mouse whether you’re Kobe beef, or chopped liver.

Why write about online dating on an employment law blog?  Recently, beautifulpeople.com introduced a recruitment section on their website that provides membership with exclusive access to job postings, and employers with exclusive access to a unique pool of candidates.

Your knee-jerk reaction may be to say:

 

  1. That’s not right,
  2. That’s illegal, or
  3. That’s discriminatory

 

You might be surprised at the answer…

 

 That’s Not Right

Many employers hire based on physical attributes—essentially, how you look. Abercrombie and Fitch’s “Look Policy” has become infamous in the news for stipulating the appearances of employees in great detail (read more about it here). Many companies recruiting for positions that interact face-to-face with clients will either intentionally or unintentionally favour more “attractive” candidates. Regardless of whether these policies and practices are “right”, the reality is that they are pervasive.

 

That’s Illegal

The Ontario Human Rights Code prohibits discrimination based upon many things, such as: ancestry, age, sex, religion, marital status, gender, etc.   How somebody looks, so long as it is not related to one of the prohibited grounds of discrimination, is a legally acceptable reason to hire a person.  The same would apply for terminations, so long as proper notice or severance is provided.

 

That’s Discriminatory

One of the goals of HR professionals when recruiting is to tap into large, diverse talent pools, thereby maximizing the chances of filling the unique needs of the organization.  The act of recruiting based upon how you look is not directly discriminatory, but it is preclusive.  For example, a manager who finds beards to be unattractive may unknowingly be turning away people who grow beards for faith-based reasons, such as Muslims, Jews, Amish, etc.  Similarly, the users of beautifulpeople.com might unintentionally exclude persons whose physical appearance is different because of a disability, or because someone is outside of the age demographic of the users.  These types of hypothetical situations are instances of systemic discrimination – broad-based institutional policies or practices that perpetuate a disadvantage to a group.  In this regard, the exclusion of a group protected under human rights legislation, whether intentional or not, could constitute discrimination.

 

HR managers employing an aesthetic recruitment strategy should be mindful of how such a decision might affect the reputation of their business.  Ultimately, the membership of beautifulpeople.com may democratically choose who is worthy of their websites privileges, but so too does the public democratically choose who is worthy of their business.

Is A Workplace Computer Private?

| January 29th, 2013 | No Comments »

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.