Toronto Employment Lawyer

Think before you let your fingers do the talking

Personal Digital Assistants (PDA's), such as BlackBerrys, have grown in popularity. So much so, that employer's are beginning to regulate the use of these devices at and even away from work. The reason: employees are confusing their privacy rights with freedom from workplace consequences.

When a PDA is provided by an employer or accessed through it's network, employees should have no reasonable expectation of privacy. Therefore, when personal use in permitted, employees should concern themselves more with losing their jobs - instead of simply losing unlimited access to their PDAs.

Regarding personal use, employees should keep in mind the following;

Amongst other actions, checking your Facebook account, sport scores, and flirting with friends over instant messaging while at work can be tantamount to theft of an employer's time. This may amount to cause for dismissal.

Criminal laws can be invoked if employees harass or intimidate coworkers via their BlackBerry. Don't forget, PDAs normally keep a record of messages sent and received.

While not reported in Canada, there are currently claims in U.S. courts made by pedestrians injured by motorists driving while messaging on their PDA.

Employers maintain the legal right to discipline or dismiss employees for off-duty conduct. So make sure you're not the employee texting inappropriate jokes to a colleague during drinks after hours.

Rapid messages  fired off from BlackBerrys tend to be less formal and thoughtful. Employees should keep in mind that they are liable for advice given, even if it is misconstrued because of a poorly drafted PDA email.

Many larger organizations have legal requirements that mandate the storage of all business communications. So a text message to your pal via your work BlackBerry can find their way into your employer's inbox too.

Employees should thoroughly review and follow workplace computer and internet misuse policies and presume they apply to your PDA. Exercise caution with communicating with or providing advising clients or colleagues and allow common sense to prevail.

To avoid legal action, employers who have been doling out BlackBerry's to workers might want to consider implementing a workplace-wide policy regarding the PDA's use. Recent class action suits against employers for unpaid overtime has initiated widespread fear that PDA use after work hours will be the next jumping off point for future class action suit. See Tresa Baldas' article from the National Law Journal for more information on this. 

Daniel A. Lublin is a Toronto Employment Lawyer specializing in the law of wrongful dismissal.  He can be reached at dan@toronto-employmentlawyer.com or visit www.toronto-employmentlawyer.com

PwC ponies up cash owed to workers for unpaid OT

The world's largest accounting firm, PricewaterhouseCoopers LLP, announced it will pay retroactive overtime to its Canadian staff. The move will see current and former employees finally receive compensation for unpaid overtime worked. The payment structure varies, however, it is unavailable to managers, chartered accounts, as well as other who match the criteria outlined in PwC's letter to employees seen here.

The announcement comes on the heels of two pending unpaid overtime class action suits against major Canadian banks CIBC and Scotiabank. For more information about the CIBC and Scotiabank suits, see my article Scotiabank becomes the newest class action defendant.

Daniel A. Lublin is a Toronto Employment Lawyer specializing in the law of wrongful dismissal.  He can be reached at dan@toronto-employmentlawyer.com or visit www.toronto-employmentlawyer.com

Sales rep launches lawsuit after 'team-building' exercise at Utah company leaves him traumatized

Chad Hudgens likely never thought he would discover the effectiveness of waterboarding first hand. Moreover, he likely never thought he would make this discovery at work as a sales person for Prosper Inc.

Volunteering for an unknown "team-building exercise", Hudgens was laid on his back in front of his coworkers in the company boardroom where his manager, with the help of other staff, held him down while water was poured over his mouth and nose. The exercise was to show that to be an effective salesperson, one must have to fight for the sale as hard as Hudgens fought for air.

It appears that the waterboarding incident was the last straw for Mr. Hudgens.  He is seeking damages against his former employer and has a laundry list of unreasonable "coaching" tactics used by Prosper's Sales Manager, which include forcing salespeople to stand at if they fail to meet sale quotas for the previous day.  The Manager also threatened to draw a moustache in permanent marker on the face of sales people for "negativity," Hudgens said.  Hudgens' lawyer has characterized the tactics used by Prosper's sales manager as "torture".  Counsel for Prosper disputes this, calling Christopherson (the Sales Manager) a "nice, sensitive guy."

Hudgens' case is based in Utah.  In Canada, the doctrine of constructive dismisal applies, which states, among other things, that it is a implied term of the employment contract that employee's will be treated with civility, decency, respect and dignity.  The breach of this term, on an objective basis, may permit the employee the resign and then sue for wrongful dismissal damages, having been able to consider the employer's actions as tantamount to dismissal. 

The full article, found today in the Toronto Star, can be found here.

Daniel A. Lublin is a Toronto Employment Lawyer specializing in the law of wrongful dismissal.  He can be reached at dan@toronto-employmentlawyer.com or visit www.toronto-employmentlawyer.com

Labour Law in China: A growing sector

The National Post published an article today titled; China's 'barefoot' labour lawyers. It describing the rise of "citizens' agents", assisting some of China's estimated 150 million migrant workers regarding their labour rights.

The article claims the state-backed All-China Federation of Trade Unions has done little to protect low paying labourers. This situation has allowed the citizens' agents to develop a market of low cost legal services to assist workers. The citizens' agents, often called 'barefoot' labour lawyers, have seen such high demand that licensed lawyers are now beginning to enter the labour law market as well. Their combined efforts have led to significant progress with respect to recognizing workers' rights.