When is it appropriate for an employee to use Facebook on their computer at work? Or other personal web resources, such as Twitter, personal email, etc.?
Employers can and should implement policies for appropriate use of computers in the workplace, which can and should provide a clear answer to this. But which of the following is the best policy?
(A) Whenever the employee wants?
(B) Whenever the employee has 'down time'?
(C) Whenever the employee is on an officially sanctioned break?
(D) Never, except as may be directly required for the performance of their job duties?
As a common practice, many employers tolerate such usage on the basis of "C" or even "B". But for a number of reasons, employers should stick with "D". It's easy for an employee to forget that the computer is not, in most cases, the employee's own property, but it is a tool belonging to the employer which is supplied to the employee to accomplish his or her work goals, so the employer is technically within its rights to insist that it only be used for work purposes, and in fact there are problems that can arise from not doing so.
One might ignore the legal issues which could hypothetically arise from too much informal generousity to employees - CRA attention to non-cash benefits or employee claims that a perk constituted a part of their compensation package - because these are likely to be quite trivial in this context, but it is harder to ignore the potential threat to IT security posed by too much casual computer use. The technical aspects aren't my expertise - talk to your IT professional about this - but while my understanding is that facebook and hotmail themselves are reasonably benign, they can easily link to websites which are more malicious. Careless use - or use by people who aren't web-savvy - of these resources can easily lead to computer viruses or other malware that could compromise your security and the privacy of your network.
Not only are your files proprietary, but as most computer networks have some client information on them, they aren't all yours to share. If your network is compromised and your clients' personal information is hacked, you may be liable in the event that you have not taken all reasonable precautions to prevent this. If it turns out that the security breach was a consequence of your receptionist, with your blessing, surfing facebook and inadvertently clicking a malicious link, then that's a problem for you. Not only are you potentially liable to third parties, but employee discipline in such a context would be inappropriate: If you have communicated to employees - expressly or impliedly - that it is acceptable to be surfing the net in such a manner on work computers, then you can hardly blame them for having done so.
Here's the other catch: Having a good policy isn't enough. You need to actually enforce the policy. If it comes to your attention that a certain employee or group of employees isn't adhering to the policy, then you need to implement a program of progressive discipline. It's all well and good to say "Our policy prohibits this", but if managers turn a blind eye to such conduct, the employer can be said to have "condoned" the conduct nonetheless.
*****
This blog is not intended to and does not provide legal advice to
any person in respect of any particular legal issue, and does not
create a solicitor-client relationship with any readers, but rather
provides general legal information. If you have a legal issue or
possible legal issue, contact a lawyer.
Thursday, September 15, 2011
Monday, September 12, 2011
Web 2.0 in the Workplace: Caught Red-Handed
Sometimes, people seem to think that a post on Facebook is like a secret whisper to a confidante.
It isn't.
Not only is it visible, potentially to countless people, but it's in writing, and is essentially indestructible. It's like carving something in stone and then prominently displaying it on the town square. I once saw somebody convicted criminally for an offence, where the Crown relied heavily on the fact that the person admitted to the crime on Facebook. Also, in personal injury suits, there is increasing jurisprudence requiring plaintiffs to produce their Facebook records, and if those records don't mesh with your tearful tale of how lonely and inactive you've been since the accident, guess what happens?
In the employment context, the main lie that Facebook could give up relates to "abuse of sick leave". You've called in sick, faked your best cough, told your boss that you're just going to lie in bed for the day...then your best friend posts and tags a cell phone photo he takes of you when you catch a foul ball at the Jays game, inconveniently incorporating a datestamp into the corner of the image. Or worse, you're on a paid or unpaid leave from work, saying that you can't perform the essential functions of your job because of a disability, and you start posting statuses about how much you're enjoying playing hockey, or golfing, or white water rafting. It's bound to raise eyebrows if anyone at work catches wind of it.
I've seen fact patterns involving a fellow off work with back pain, who ended up in the local paper when he won a golf tournament. Oops. Or another individual who was off work because of a knee injury, but a local paper ran a community interest story about people skating at the local community centre, and he happened to be caught in the photograph they ran. These are fundamentally similar. And the conclusion is usually that the employee is in deep trouble when this happens. Or how about the teacher who, while off on disability leave, took another teaching position with a different school board?
As always, whether or not this sort of thing constitutes just cause for termination is deeply contextual. The fact that somebody is alive when not at work is not, in and of itself, misconduct, and even where there is misconduct, its severity will vary significantly. An employer, getting word that an employee seems to be doing something incongruous with their claimed illness, needs to investigate, but should not immediately jump to conclusions. As I recall, the fellow with the knee trouble ended up getting reinstated because it was concluded that his failure to return to work when he was able was not bad faith - when his doctor gave him a note saying that he needed x days off, he figured he'd go back to work after x days, and didn't realize that he should have returned to work immediately upon becoming able. Another relevant factor is whether the leave is paid or unpaid. Where an employee is on an unpaid disability leave and working for another employer, it's usually just dishonesty. Where the employee is on a paid disability leave and working for another employer, it is usually fraud - the employee is, for all intents and purposes, stealing from the employer (or the disability insurer), which is much more severe.
The two main challenges for an employer are, firstly, that the employer will not always know the nature of the medical condition, and in fact is not entitled to know the nature of the medical condition, and secondly that the employer will occasionally have difficulty establishing that the employee understood their obligations in respect of their sick leave. I've seen arguments made that "The employer didn't contact me to return to work, so I thought I was okay."
So an employer, faced with prima facie evidence that the employee is abusing sick leave, must move cautiously. Surveillance evidence, under these circumstances, has usually been found in Canadian jurisprudence to be admissible, so talk to a lawyer about getting a PI on the case to flesh out the case beyond the strict contents of the facebook status, photo, or other report. Remind the employee of his obligation to report for work if he is able to do so. Conduct an interview with the employee to establish/confirm the specific medical limitations which prevented him from attending work, and ask him what extra-curriculars he engaged in while off work (give him the opportunity to be truthful...or not), and consider getting an independent medical expert to determine whether or not the activities he engaged in were consistent with the medical limitations he described. (The golfer argued that his doctor had suggested golf as a treatment for his back problems. The argument didn't fly in that context, but the underlying principle is sound: Perhaps I have a physical job that a disability prevents me from doing...well, just maybe the kinetics of sport x are not the same, and therefore my limitations on working may not apply in the same way to my sport.)
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
It isn't.
Not only is it visible, potentially to countless people, but it's in writing, and is essentially indestructible. It's like carving something in stone and then prominently displaying it on the town square. I once saw somebody convicted criminally for an offence, where the Crown relied heavily on the fact that the person admitted to the crime on Facebook. Also, in personal injury suits, there is increasing jurisprudence requiring plaintiffs to produce their Facebook records, and if those records don't mesh with your tearful tale of how lonely and inactive you've been since the accident, guess what happens?
In the employment context, the main lie that Facebook could give up relates to "abuse of sick leave". You've called in sick, faked your best cough, told your boss that you're just going to lie in bed for the day...then your best friend posts and tags a cell phone photo he takes of you when you catch a foul ball at the Jays game, inconveniently incorporating a datestamp into the corner of the image. Or worse, you're on a paid or unpaid leave from work, saying that you can't perform the essential functions of your job because of a disability, and you start posting statuses about how much you're enjoying playing hockey, or golfing, or white water rafting. It's bound to raise eyebrows if anyone at work catches wind of it.
I've seen fact patterns involving a fellow off work with back pain, who ended up in the local paper when he won a golf tournament. Oops. Or another individual who was off work because of a knee injury, but a local paper ran a community interest story about people skating at the local community centre, and he happened to be caught in the photograph they ran. These are fundamentally similar. And the conclusion is usually that the employee is in deep trouble when this happens. Or how about the teacher who, while off on disability leave, took another teaching position with a different school board?
As always, whether or not this sort of thing constitutes just cause for termination is deeply contextual. The fact that somebody is alive when not at work is not, in and of itself, misconduct, and even where there is misconduct, its severity will vary significantly. An employer, getting word that an employee seems to be doing something incongruous with their claimed illness, needs to investigate, but should not immediately jump to conclusions. As I recall, the fellow with the knee trouble ended up getting reinstated because it was concluded that his failure to return to work when he was able was not bad faith - when his doctor gave him a note saying that he needed x days off, he figured he'd go back to work after x days, and didn't realize that he should have returned to work immediately upon becoming able. Another relevant factor is whether the leave is paid or unpaid. Where an employee is on an unpaid disability leave and working for another employer, it's usually just dishonesty. Where the employee is on a paid disability leave and working for another employer, it is usually fraud - the employee is, for all intents and purposes, stealing from the employer (or the disability insurer), which is much more severe.
The two main challenges for an employer are, firstly, that the employer will not always know the nature of the medical condition, and in fact is not entitled to know the nature of the medical condition, and secondly that the employer will occasionally have difficulty establishing that the employee understood their obligations in respect of their sick leave. I've seen arguments made that "The employer didn't contact me to return to work, so I thought I was okay."
So an employer, faced with prima facie evidence that the employee is abusing sick leave, must move cautiously. Surveillance evidence, under these circumstances, has usually been found in Canadian jurisprudence to be admissible, so talk to a lawyer about getting a PI on the case to flesh out the case beyond the strict contents of the facebook status, photo, or other report. Remind the employee of his obligation to report for work if he is able to do so. Conduct an interview with the employee to establish/confirm the specific medical limitations which prevented him from attending work, and ask him what extra-curriculars he engaged in while off work (give him the opportunity to be truthful...or not), and consider getting an independent medical expert to determine whether or not the activities he engaged in were consistent with the medical limitations he described. (The golfer argued that his doctor had suggested golf as a treatment for his back problems. The argument didn't fly in that context, but the underlying principle is sound: Perhaps I have a physical job that a disability prevents me from doing...well, just maybe the kinetics of sport x are not the same, and therefore my limitations on working may not apply in the same way to my sport.)
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Sunday, September 11, 2011
Web 2.0 in the Workplace: Editorializing
In the Web 2.0 introduction on Friday I mentioned a website called "Please Fire Me", in which employees gripe anonymously about their employers. One gripe caught my eye, as follows:
There are three categories of posts that can raise questions. There are posts which disparage the employer or its employees, posts which compromise employer confidentiality, and posts which threaten to bring the employer into disrepute because of its affiliation with the employee.
Disparaging the Employer or Others in the Organization
I never fail to be astonished by the casual manner in which people will disparage their employer or co-workers, by name, for the world to see. There's nothing private about the internet, so posting in a blog or on twitter about how much you hate your workplace, your boss, or your co-worker is almost bound to come back to you, and it's never good. Posting it on facebook is almost as bad, and worse if you have any co-workers who are on your friends list.
Note, though it is not the central purpose of this post, that actions for libel can be brought and have been brought based on defamatory internet postings. Here, however, I will consider the workplace consequences.
The severity of such conduct depends on a few factors: What did you say, who is the potential audience, and how did you identify yourself and the others involved? And, most importantly, did it harm the employer?
Griping, in and of itself, is going to be a minor infraction at best. People gripe about their jobs. It's a reality, and the Courts understand that.
This issue was considered in the Saskatchewan case of Caudle v. Louisville Sales & Service Inc. in 1999, and Justice Laing made the following observation about griping:
The more recent Nunavut case of Butschler v. Waters made an important distinction between the griping cases, determining that "an employee is entitled to complain about management to his co-workers so long as the complaints do not harm the well-being of the company", and complaints which harm the company. In that case, there was evidence that the employee had complained and sworn about the management in front of co-workers and others, but in the absence of harm, and despite a provision in the contract that "public criticism" was grounds for dismissal, the Court found that there was no just cause.
Moving from simple griping to internet griping, let's look at a case where the employee did not name names: In Wasaya Airways LP v. Air Line Pilots Association, Intl (Wyndels grievance), the grievor posted on facebook, "You know you fly in the north when...", and listed ten items which, while not reproduced in the decision, were apparently highly disrespectful to First Nations, which upset First Nation co-workers. (As a side note, it does not appear that the grievor was actually disgruntled, but the post was a misguided attempt at humour.) While the Union acknowledged that discipline was appropriate, it successfully argued that termination was not the appropriate response. The Arbitrator noted that the note did not identify the airline, or anything specific to the airline, so unknown third parties reading the Facebook post would have had no reason to identify it with Wasaya. However, the racist content of the post, given the demographic of the airline's employees and clients, justifiably created concerns for the airline, so the employee was not reinstated but rather compensated in lieu of reinstatement.
When we come to the posts that name names, however, we are into a very different framework. Consider the case of Alberta v. Alberta Union of Provincial Employees, 174 L.A.C. (4th) 371, a grievance arbitration in which the arbitrator concluded:
Posts Which Compromise Employer Confidentiality
Confidentiality, for most employers, is a serious matter. This was a component of the above-noted Clarke grievance. As with all confidentiality breaches, the employer will have to establish that there was a duty of confidentiality in respect of the information shared. When the breach involves an internet post, however, certain elements of the case become much easier, in the sense that it is not difficult to establish the content of what was shared, and sharing confidential information with the world wide web will usually be pretty egregious.
As always, however, these things are contextual. Depending on the nature of the information shared, and the reason for sharing it, the nature of the discipline called for will vary on a case-by-case basis.
Posts Which Otherwise Threaten to Bring the Employer into Disrepute
This is part of a larger framework as well. The idea is that, while an employer does not usually have the ability to discipline for misconduct not related to the workplace, there is some conduct which is so reprehensible that the employer's reputation will be damaged simply by being associated with the employee. In the union context, the test is set by the 1967 Millhaven Fibres Ltd. case:
In order to justify the discharge of an employee for off-duty conduct, there are five factors to consider:
(1) the conduct of the grievor harms the Company's reputation or product
(2) the grievor's behaviour renders the employee unable to perform his duties satisfactorily
(3) the grievor's behaviour leads to refusal, reluctance or inability of other employees to work with him
(4) the grievor has been guilty of a serious breach of the Criminal Code and, thus, rendering his conduct injurious to the general reputation of the Company and its employees
(5) places difficulty in the way of the Company properly carrying out its function of efficiently managing its works and efficiently directing its work forces.
This test was considered in the above-noted Wyndels grievance, and factored into the severity of the punishment which was called for in that case.
The Bottom Line
Employees are perfectly entitled to carry on an online existence, and the employer generally cannot assert total control of what they do online. (I have seen occasional circumstances where a position requires a certain public image, which would likely be an exceptional case.) Ultimately, however, employees must be careful not to conduct themselves in ways that will compromise the reputation of the employer or alienate co-workers.
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Please fire me. I am not friends with my boss on Facebook, so he has his other employees who are friends on Facebook to show him my statuses. Then he gives me s*** about them.Sounds like Please Fire Me isn't the first venue this employee tried for griping about his boss. But it's a good example of the dangers of posting online. (I also think it shows an interesting workplace dynamic; I generally advise against adding co-workers and especially subordinates to Facebook friends lists.) Facebook is one example. Issues commonly arise with personal blogs, as well.
There are three categories of posts that can raise questions. There are posts which disparage the employer or its employees, posts which compromise employer confidentiality, and posts which threaten to bring the employer into disrepute because of its affiliation with the employee.
Disparaging the Employer or Others in the Organization
I never fail to be astonished by the casual manner in which people will disparage their employer or co-workers, by name, for the world to see. There's nothing private about the internet, so posting in a blog or on twitter about how much you hate your workplace, your boss, or your co-worker is almost bound to come back to you, and it's never good. Posting it on facebook is almost as bad, and worse if you have any co-workers who are on your friends list.
Note, though it is not the central purpose of this post, that actions for libel can be brought and have been brought based on defamatory internet postings. Here, however, I will consider the workplace consequences.
The severity of such conduct depends on a few factors: What did you say, who is the potential audience, and how did you identify yourself and the others involved? And, most importantly, did it harm the employer?
Griping, in and of itself, is going to be a minor infraction at best. People gripe about their jobs. It's a reality, and the Courts understand that.
This issue was considered in the Saskatchewan case of Caudle v. Louisville Sales & Service Inc. in 1999, and Justice Laing made the following observation about griping:
The context in that case involved a bodyshop foreman/assistant manager who was forced to undertake the additional duties of bodyshop manager, who complained about the additional workload in front of staff and customers. Thus, we see that griping in the workplace can be disciplinable, but even in the workplace it is relatively minor misconduct.The employer has the right to expect that employees will not disparage their immediate supervisors or other employees in the course of their employment, and certainly not to clients or customers of the employer. However, griping is not exactly unusual in a work place, and the type of conduct alleged against the plaintiff would not justify dismissal the first time it came to the employer’s attention, if he had been guilty of such conduct while performing only his own job function. In my brief review of the case law, it seems uniform that one or more warnings to an employee must be given before it can be said such activity “fractures” the employment relationship. Where dismissal does result after one or more warnings, the category of misconduct can be said to change from one of poor attitude to one of disobedience or insubordination.
The more recent Nunavut case of Butschler v. Waters made an important distinction between the griping cases, determining that "an employee is entitled to complain about management to his co-workers so long as the complaints do not harm the well-being of the company", and complaints which harm the company. In that case, there was evidence that the employee had complained and sworn about the management in front of co-workers and others, but in the absence of harm, and despite a provision in the contract that "public criticism" was grounds for dismissal, the Court found that there was no just cause.
Moving from simple griping to internet griping, let's look at a case where the employee did not name names: In Wasaya Airways LP v. Air Line Pilots Association, Intl (Wyndels grievance), the grievor posted on facebook, "You know you fly in the north when...", and listed ten items which, while not reproduced in the decision, were apparently highly disrespectful to First Nations, which upset First Nation co-workers. (As a side note, it does not appear that the grievor was actually disgruntled, but the post was a misguided attempt at humour.) While the Union acknowledged that discipline was appropriate, it successfully argued that termination was not the appropriate response. The Arbitrator noted that the note did not identify the airline, or anything specific to the airline, so unknown third parties reading the Facebook post would have had no reason to identify it with Wasaya. However, the racist content of the post, given the demographic of the airline's employees and clients, justifiably created concerns for the airline, so the employee was not reinstated but rather compensated in lieu of reinstatement.
When we come to the posts that name names, however, we are into a very different framework. Consider the case of Alberta v. Alberta Union of Provincial Employees, 174 L.A.C. (4th) 371, a grievance arbitration in which the arbitrator concluded:
While the Grievor has a right to create personal blogs and is entitled to her opinions about the people with whom she works, publicly displaying those opinions may have consequences within an employment relationship. The Board is satisfied that the Grievor, in expressing contempt for her managers, ridiculing her co-workers, and denigrating administrative processes engaged in serious misconduct that irreparably severed the employment relationship, justifying discharge.
That a blog is a form of public expression is, or ought to be, self-evident. Unless steps are taken to prevent access, a blog is readable by anyone in the world with access to the internet. The Grievor took no steps to prevent access. On the contrary, the tone of her blogs placed them very much in the public arena and suggested that the Grievor relished addressing a wider audience.Similarly, in Chatham-Kent (Municipality) v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 127 (the Clarke grievance), an employee of a nursing home was terminated, and the termination was upheld, because she set up a web site, accessible to all, in which she disclosed information about the residents, posted photos of the residents, and made crude disparaging remarks about management and co-workers.
Having reviewed the evidence the conclusion that must be reached in this case is that by her actions Ms. Clarke has provided the employer with just cause to impose discipline on a number of grounds, and that the basis for the just cause are those reasons set out in the Employer's letter of termination. First, by a breach of the confidentiality agreement and disclosing residents' personal information on a blog accessible to the public. Second, by making insubordinate remarks about management, work procedures, management decisions, and the general running of the Home and placing these on a blog available to members of the public. Third, that the nature of her comments, their hostility, and the language used to express them, demonstrated a disregard for residents' need for care, and that this was conduct unbefitting a Personal Care Giver in a Home for the Aged, as well as it being inappropriate for her to make the critical comments that she did on a public blog about some of her fellow employees.So, by contrast to employees who gripe quietly, employees who announce to the world their discontentment could well be saying goodbye to their jobs.
Posts Which Compromise Employer Confidentiality
Confidentiality, for most employers, is a serious matter. This was a component of the above-noted Clarke grievance. As with all confidentiality breaches, the employer will have to establish that there was a duty of confidentiality in respect of the information shared. When the breach involves an internet post, however, certain elements of the case become much easier, in the sense that it is not difficult to establish the content of what was shared, and sharing confidential information with the world wide web will usually be pretty egregious.
As always, however, these things are contextual. Depending on the nature of the information shared, and the reason for sharing it, the nature of the discipline called for will vary on a case-by-case basis.
Posts Which Otherwise Threaten to Bring the Employer into Disrepute
This is part of a larger framework as well. The idea is that, while an employer does not usually have the ability to discipline for misconduct not related to the workplace, there is some conduct which is so reprehensible that the employer's reputation will be damaged simply by being associated with the employee. In the union context, the test is set by the 1967 Millhaven Fibres Ltd. case:
In order to justify the discharge of an employee for off-duty conduct, there are five factors to consider:
(1) the conduct of the grievor harms the Company's reputation or product
(2) the grievor's behaviour renders the employee unable to perform his duties satisfactorily
(3) the grievor's behaviour leads to refusal, reluctance or inability of other employees to work with him
(4) the grievor has been guilty of a serious breach of the Criminal Code and, thus, rendering his conduct injurious to the general reputation of the Company and its employees
(5) places difficulty in the way of the Company properly carrying out its function of efficiently managing its works and efficiently directing its work forces.
This test was considered in the above-noted Wyndels grievance, and factored into the severity of the punishment which was called for in that case.
The Bottom Line
Employees are perfectly entitled to carry on an online existence, and the employer generally cannot assert total control of what they do online. (I have seen occasional circumstances where a position requires a certain public image, which would likely be an exceptional case.) Ultimately, however, employees must be careful not to conduct themselves in ways that will compromise the reputation of the employer or alienate co-workers.
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Saturday, September 10, 2011
Web 2.0 in the Workplace: Recruitment
As a job applicant, I give my potential employer the information I want them to have, and only the information I want them to have. My resume, which plays up my strengths in relation to the position I'm applying for. My cover letter, which sells me to the employer. Reference letters on request, from the employers who most loved me in the past. And then I show up for the interview with a tidy haircut and a nice suit, ready to turn on my best shine for the recruiters.
That's the game. We all know it. Especially recruiters. So it has come into vogue for tech savvy recruiters to search the internet for information regarding potential employees, to try to find out what they aren't being told. They check facebook, they google the name, and what they find can influence their decision. If they find dirt - party photos, vulgar posts and comments, evidence of immature and unprofessional behaviour - then this can factor into the decision-making progress.
So job-seekers need to manage their online images. Pay attention to facebook privacy settings. But even that isn't enough: To be really safe, you need to take down any compromising information, and un-tag yourself from any photos others may have posted. Ask yourself, "Is this something I would be comfortable putting on my resume?" If the answer is no, remove it from the internet, to the extent you can. In fact, once something is online, it is there forever to a skilful enough searcher, so people are well-advised to exercise caution in what they're putting online in the first place.
Similarly, tasteful photographs of outings with friends, conservative vacation photos, images of you at Vimy Ridge or meeting the Dalai Lama, or playing in your casual hockey league...these are usually going to be posts you want recruiters to see. Because they don't just look online to rule out candidates; they're looking online to try to find positive information, too. Showing that you are an interesting person with interesting hobbies is something that will usually make you more attractive as a candidate. Having a life, involving responsible fun, is seldom regarded as a bad thing.
I had one classmate in law school who, whenever job-hunting time rolled around, changed his facebook profile photo to text to the effect of "Dear law firm recruiters, please hire me." Cheeky. But clever.
Recruiters take heed, though, of the dangers inherent in these searches: You may get information that you don't need, that you don't want, and that you are legally prohibited from using in coming to a decision. Be cognizant of the Human Rights Code.
Under most circumstances, the Code prevents recruiters from asking certain questions of candidates, relating to prohibited Code grounds. Mind you, not everyone abides by these rules, even by lawyers and HR Professionals who should know better. I was once contacted by a professional headhunter for a law firm whose first three questions were my age, marital status, and family status - questions which were echoed several times by the firm's partners. Suffice it to say that, though I received an offer from the firm in question, I declined it. I once heard an anecdote from a law clerk about interviewing with a lawyer who asked her if she had any plans to get pregnant in the near future. Or sometimes, a recruiter will raise a prohibited ground just in the way of small talk - for many parents, it becomes natural to talk about their kids and ask others, "Do you have any children?"
These questions, in and of themselves, are illegal. It isn't just that you can't make a decision based on these factors, though that's true too. You can't even ask. And the reason for that is to protect unsuccessful candidates from the potential dispute about whether or not the reason they weren't hired related to their answer to those questions.
Of course, that protection isn't universal. A candidate comes to an interview, and it is immediately a simple matter of determining, with some margin of error, their age, race, and marital status. But there are many other things that you don't know about. Religious beliefs. Mental illness or other non-obvious disabilities. Or, similarly, though based in the Labour Relations Act instead, union affiliations. And the more you know, the more exposed you are to allegations that you discriminated on the basis of a prohibited ground. If the candidate can convince a Tribunal that even a part of the reason for not hiring them was related to a prohibited ground, significant liabilities can result.
The risk may not be significant in every case, but it's something to be careful about. Larger organizations might consider tasking a Human Resources Assistant, with no role in the decision-making process, with conducting the internet searches and redacting materials related to prohibited grounds, before giving the remainder to the decision-makers.
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
That's the game. We all know it. Especially recruiters. So it has come into vogue for tech savvy recruiters to search the internet for information regarding potential employees, to try to find out what they aren't being told. They check facebook, they google the name, and what they find can influence their decision. If they find dirt - party photos, vulgar posts and comments, evidence of immature and unprofessional behaviour - then this can factor into the decision-making progress.
So job-seekers need to manage their online images. Pay attention to facebook privacy settings. But even that isn't enough: To be really safe, you need to take down any compromising information, and un-tag yourself from any photos others may have posted. Ask yourself, "Is this something I would be comfortable putting on my resume?" If the answer is no, remove it from the internet, to the extent you can. In fact, once something is online, it is there forever to a skilful enough searcher, so people are well-advised to exercise caution in what they're putting online in the first place.
Similarly, tasteful photographs of outings with friends, conservative vacation photos, images of you at Vimy Ridge or meeting the Dalai Lama, or playing in your casual hockey league...these are usually going to be posts you want recruiters to see. Because they don't just look online to rule out candidates; they're looking online to try to find positive information, too. Showing that you are an interesting person with interesting hobbies is something that will usually make you more attractive as a candidate. Having a life, involving responsible fun, is seldom regarded as a bad thing.
I had one classmate in law school who, whenever job-hunting time rolled around, changed his facebook profile photo to text to the effect of "Dear law firm recruiters, please hire me." Cheeky. But clever.
Recruiters take heed, though, of the dangers inherent in these searches: You may get information that you don't need, that you don't want, and that you are legally prohibited from using in coming to a decision. Be cognizant of the Human Rights Code.
Under most circumstances, the Code prevents recruiters from asking certain questions of candidates, relating to prohibited Code grounds. Mind you, not everyone abides by these rules, even by lawyers and HR Professionals who should know better. I was once contacted by a professional headhunter for a law firm whose first three questions were my age, marital status, and family status - questions which were echoed several times by the firm's partners. Suffice it to say that, though I received an offer from the firm in question, I declined it. I once heard an anecdote from a law clerk about interviewing with a lawyer who asked her if she had any plans to get pregnant in the near future. Or sometimes, a recruiter will raise a prohibited ground just in the way of small talk - for many parents, it becomes natural to talk about their kids and ask others, "Do you have any children?"
These questions, in and of themselves, are illegal. It isn't just that you can't make a decision based on these factors, though that's true too. You can't even ask. And the reason for that is to protect unsuccessful candidates from the potential dispute about whether or not the reason they weren't hired related to their answer to those questions.
Of course, that protection isn't universal. A candidate comes to an interview, and it is immediately a simple matter of determining, with some margin of error, their age, race, and marital status. But there are many other things that you don't know about. Religious beliefs. Mental illness or other non-obvious disabilities. Or, similarly, though based in the Labour Relations Act instead, union affiliations. And the more you know, the more exposed you are to allegations that you discriminated on the basis of a prohibited ground. If the candidate can convince a Tribunal that even a part of the reason for not hiring them was related to a prohibited ground, significant liabilities can result.
The risk may not be significant in every case, but it's something to be careful about. Larger organizations might consider tasking a Human Resources Assistant, with no role in the decision-making process, with conducting the internet searches and redacting materials related to prohibited grounds, before giving the remainder to the decision-makers.
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Friday, September 9, 2011
Lawyers Getting Sued
Don't worry, the Web 2.0 in the Workplace series will continue tomorrow, as planned.
In recent months, there has been a series of major law firms getting sued by former employees. Last month I made an entry about a first year associate of a major New York firm suing for wrongful dismissal. A few months ago, Mathews Dinsdale & Clark LLP, a major Toronto firm and a major player in Canadian labour law, made headlines because of various issues and litigation continuing from apparently inappropriate behaviour at a wild and crazy party it hosted in 2007, after its annual labour arbitrarion competition. (See this Law Times story for details.) Before that, there was Jaime Laskis, who worked at the New York office of Osler, Hoskin & Harcourt, which is one of Canada's largest law firms, and who made headlines litigating against the firm, alleging gender discrimination.
In fact, over the last year or two, there have been myriad claims made against a variety of major law firms across the country, based in sexual harassment, discrimination on the basis of sex, and poisoned work environments.
Pinkofskys, the most notable Canadian criminal law firm (now known as Rusonik, O'Connor, Ross, Gordham & Angelini...against the grain, when most firms are shortening their names) has been added on the list, as former office assistant Tracy Francis is suing in wrongful dismissal. The firm's statement of defence alleges that Francis had engaged in persistent and vexatious disparaging remarks about one of the lawyers in the firm, calling him, acccording to the Toronto Star story on the topic, "“tyrant,” “idiot,” “weasel,” “snivelling b---h,” “dump truck” — a term referring to lawyers who plead out clients rather than litigate — and an “ass.”". In the plaintiff's Reply, Francis denied those allegations, and noted that it was the firm's lawyers themselves who maintained a culture in which disparaging marks were acceptable.
Really, it isn't uncommon for assistants to badmouth lawyers. I've heard the assistants use some pretty harsh words about them (and not always without good reason). And I'm sure I haven't heard the worst of it. That said, while I've never heard the term "dump truck" in quite that context, it sounds like it would be a litigator's insult for another, and it is hard to imagine why an assistant would be using it as a pejorative.
It's probably not true that all of these cases are well-founded. But likewise, it probably isn't true that none of them are, either. Law firms have a terrible reputation when it comes to human-rights-related sensitivity. Even though female law grads are as numerous (if not moreso) as men, all the studies continue to show that the legal profession is having a hard time retaining women. It's a real problem that the profession on the whole needs to overcome, and these major firms need to be taking the lead in the culture shift.
*****
This blog is not intended to, and does not, provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
In recent months, there has been a series of major law firms getting sued by former employees. Last month I made an entry about a first year associate of a major New York firm suing for wrongful dismissal. A few months ago, Mathews Dinsdale & Clark LLP, a major Toronto firm and a major player in Canadian labour law, made headlines because of various issues and litigation continuing from apparently inappropriate behaviour at a wild and crazy party it hosted in 2007, after its annual labour arbitrarion competition. (See this Law Times story for details.) Before that, there was Jaime Laskis, who worked at the New York office of Osler, Hoskin & Harcourt, which is one of Canada's largest law firms, and who made headlines litigating against the firm, alleging gender discrimination.
In fact, over the last year or two, there have been myriad claims made against a variety of major law firms across the country, based in sexual harassment, discrimination on the basis of sex, and poisoned work environments.
Pinkofskys, the most notable Canadian criminal law firm (now known as Rusonik, O'Connor, Ross, Gordham & Angelini...against the grain, when most firms are shortening their names) has been added on the list, as former office assistant Tracy Francis is suing in wrongful dismissal. The firm's statement of defence alleges that Francis had engaged in persistent and vexatious disparaging remarks about one of the lawyers in the firm, calling him, acccording to the Toronto Star story on the topic, "“tyrant,” “idiot,” “weasel,” “snivelling b---h,” “dump truck” — a term referring to lawyers who plead out clients rather than litigate — and an “ass.”". In the plaintiff's Reply, Francis denied those allegations, and noted that it was the firm's lawyers themselves who maintained a culture in which disparaging marks were acceptable.
Really, it isn't uncommon for assistants to badmouth lawyers. I've heard the assistants use some pretty harsh words about them (and not always without good reason). And I'm sure I haven't heard the worst of it. That said, while I've never heard the term "dump truck" in quite that context, it sounds like it would be a litigator's insult for another, and it is hard to imagine why an assistant would be using it as a pejorative.
It's probably not true that all of these cases are well-founded. But likewise, it probably isn't true that none of them are, either. Law firms have a terrible reputation when it comes to human-rights-related sensitivity. Even though female law grads are as numerous (if not moreso) as men, all the studies continue to show that the legal profession is having a hard time retaining women. It's a real problem that the profession on the whole needs to overcome, and these major firms need to be taking the lead in the culture shift.
*****
This blog is not intended to, and does not, provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Web 2.0 in the Workplace: Introduction
For those readers unfamiliar with the term Web 2.0, let me borrow a definition from Wikipedia: "The term Web 2.0 is associated with web applications that facilitate participatory information sharing, interoperability, user-centered design,[1] and collaboration on the World Wide Web."
Whereas "Web 1.0" was a mechanism by which the general public received information over the internet, much like television or radio, Web 2.0 is interactive, allowing the general public to define the contents of the internet.
Wikipedia itself is a classic example of a Web 2.0 website, which permits user contribution and editing to its entries, with certain guidelines for sourcing and contribution and a discussion page for users to debate specific contents of the entry. While it isn't wholly reliable, it provides a good starting point for understanding...well, just about anything, these days. To fully understand the power of Web 2.0, note that there are a total of over 19 million Wikipedia articles in approximately 270 languages, totalling over eight billion words. (In English alone there are over 3.7 million articles with over 2 billion words.)
Other Web 2.0 sites include Blogger, Facebook, Twitter, social networking sites, and even comment sections in online newspaper publications. All of these are soapboxes for anyone with an internet connection to announce to the world anything they like, from their stance on upcoming elections to what they had for breakfast that morning.
Another site which recently came to my attention is called "Please Fire Me", a site for disgruntled employees to complain about their jobs anonymously.
The impacts of Web 2.0 on the workplace are myriad. Many people do not really think about who might read the materials they post. They think of blogs as journals, and of facebook statuses as announcements to their 500 closest friends, regardless of how their privacy settings may be configured. These issues cannot be ignored by either employers or employees.
So stay tuned for several entries to come on Web 2.0 in the Workplace:
(1) Recruitment: How should job-seekers manage their online image? Should employers Google prospective employees?
(2) Editorializing: When can an employer discipline an employee for online posting? Is posting about the boss, co-workers, or the workplace itself inappropriate?
(3) Caught red-handed: What happens when an online post admits, expressly or impliedly, to workplace misconduct? (The classic case is the employee who calls in sick, then posts a photo of himself at the ball game.)
(4) Facebook@Work: Appropriate use of work computers.
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Whereas "Web 1.0" was a mechanism by which the general public received information over the internet, much like television or radio, Web 2.0 is interactive, allowing the general public to define the contents of the internet.
Wikipedia itself is a classic example of a Web 2.0 website, which permits user contribution and editing to its entries, with certain guidelines for sourcing and contribution and a discussion page for users to debate specific contents of the entry. While it isn't wholly reliable, it provides a good starting point for understanding...well, just about anything, these days. To fully understand the power of Web 2.0, note that there are a total of over 19 million Wikipedia articles in approximately 270 languages, totalling over eight billion words. (In English alone there are over 3.7 million articles with over 2 billion words.)
Other Web 2.0 sites include Blogger, Facebook, Twitter, social networking sites, and even comment sections in online newspaper publications. All of these are soapboxes for anyone with an internet connection to announce to the world anything they like, from their stance on upcoming elections to what they had for breakfast that morning.
Another site which recently came to my attention is called "Please Fire Me", a site for disgruntled employees to complain about their jobs anonymously.
The impacts of Web 2.0 on the workplace are myriad. Many people do not really think about who might read the materials they post. They think of blogs as journals, and of facebook statuses as announcements to their 500 closest friends, regardless of how their privacy settings may be configured. These issues cannot be ignored by either employers or employees.
So stay tuned for several entries to come on Web 2.0 in the Workplace:
(1) Recruitment: How should job-seekers manage their online image? Should employers Google prospective employees?
(2) Editorializing: When can an employer discipline an employee for online posting? Is posting about the boss, co-workers, or the workplace itself inappropriate?
(3) Caught red-handed: What happens when an online post admits, expressly or impliedly, to workplace misconduct? (The classic case is the employee who calls in sick, then posts a photo of himself at the ball game.)
(4) Facebook@Work: Appropriate use of work computers.
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Sunday, September 4, 2011
Does an employer need to pay the bonus due during the notice period?
It's simple and well-established law that the employer who dismisses an employee without notice and without just cause must provide pay in lieu of notice. How much notice should be provided is often complicated, but a question that is sometimes equally complicated is what compensation aspects should be figured into the calculation.
Salary's easy, but what about bonuses? Health benefits? Company car?
The default answer is...everything. But bonuses are more complicated than that. Purely discretionary bonuses can be difficult for an employee to pursue, but if there's a consistent pattern of bonuses in the past, or a fixed mechanism for calculating bonuses, then there's a chance. If there's a bonus structure worked into the employee's contract, and/or if the bonus can be said to be an integral part of the compensation package, the employee is in a very good position to make a claim for the bonus.
However, these are all common law defaults, subject to the freedom of contract, and it is not uncommon to see contractual language or language in the policy establishing the bonus structure that states that employees must be actively employed as of a particular vesting date in order to be entitled to the bonus for that period of time. (For example, if you want your annual bonus, you have to be actively employed as of December 31st of that year. If you quit your job on December 30th, you get nothing.)
However, if the employee hasn't been made aware of that limitation, then the employer can't rely on it. In the recent case of Poole v. Whirlpool Corporation, Mr. Poole was on international assignment when the Bonus Plan was implemented in 2005, and was never advised of the 'active employment' requirement until after his termination in 2010. Accordingly, he remained entitled to his bonus throughout the notice period, which the Court found was 19 months. This bonus entitlement ultimately amounted to more than $100,000 through the notice period.
Other points of interest in this case include the choice of proceeding: While it was certainly not a Simplified Procedure case (the overall judgement ended up being in excess of half a million dollars), the plaintiff moved for summary judgment, leading affidavit evidence. The main issues appear to be the length of the notice period, entitlement to the bonus, and entitlement to other benefits, but there were no major factual disputes. Neither party cross-examined the other side on their affidavits, and so the proceedings were relatively expeditious. However, "relatively expeditious" is still expensive - the Court ended up awarding the plaintiff partial indemnity costs in the amount of $25,000.
Thoughts on Bonus Limitations
Where the bonus limiting language exists, and the bonus is not established to be an integral part of the compensation structure, the limtation can be upheld. However, I believe that there are difficulties with this approach that have not been explored in the jurisprudence.
We start, as I have said, with the default position that the employee is entitled to receive, as pay in lieu of notice, compensation for anything he would have received had his employment been continued through the notice period. When there is bonus language implemented in a manner insufficient to constitute a binding term of the contract, it cannot rebut that common law presumption - when you are terminated, your entitlement to damages for pay in lieu of notice continues to include everything you would have received had you been actively employed through the notice period. This issue is similar to the one I argued when dealing with the share repurchase agreement in Love v. Acuity Investments, in a previous blog I maintained. (See footnote below.)
Where there is ostensibly binding contractual language stating that an employee must be actively employed at certain dates, such that the bonus will not be payable if terminated prior to such dates, then this must be seen in light of certain restrictions surrounding entitlements on termination: The Employment Standards Act, 2000 sets minimum requirements for notice periods which cannot be contracted out of, and these minimum requirements have only one relevant exclusion, being for purely discretionary bonuses "that are not related to hours, production or efficiency." In other words, where bonuses are not purely discretionary, or are based at all upon hours, production, or efficiency, any contractual provision which purports to relieve the employer of the obligation to provide such bonuses on termination would be void.
All that being said, I think such language should generally be sufficient to avoid any pro rata calculation of bonuses: If the notice period proceeds past the vesting dates, the employee gets the bonus. If not, he doesn't. (This is usually reflected in the existing law, though I note that my other thoughts may not be.)
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Love v. Acuity Investments footnote:
Put briefly, the Court of Appeal in Acuity held that a termination without notice (in the absence of just cause) is, in and of itself, a contractual breach, ending the employment immediately and entitling the employee to damages...and therefore, a separate share repurchase agreement allowing the employer to repurchase employee-owned shares at the end of employment could be triggered immediately upon such termination, without waiting for the end of the notice period, and therefore the employee has no claim to damages based on subsequent appreciation in the value of the shares. I would argue that this decision is simply internally inconsistent: If the employer has no contractual right to terminate the employment relationship immediately, then the compensation principle entitles the employee to monetary damages to put him into the same position he would have been in but for the breach of contract - i.e., had he been allowed to continue to hold the shares to the end of the notice period.
Salary's easy, but what about bonuses? Health benefits? Company car?
The default answer is...everything. But bonuses are more complicated than that. Purely discretionary bonuses can be difficult for an employee to pursue, but if there's a consistent pattern of bonuses in the past, or a fixed mechanism for calculating bonuses, then there's a chance. If there's a bonus structure worked into the employee's contract, and/or if the bonus can be said to be an integral part of the compensation package, the employee is in a very good position to make a claim for the bonus.
However, these are all common law defaults, subject to the freedom of contract, and it is not uncommon to see contractual language or language in the policy establishing the bonus structure that states that employees must be actively employed as of a particular vesting date in order to be entitled to the bonus for that period of time. (For example, if you want your annual bonus, you have to be actively employed as of December 31st of that year. If you quit your job on December 30th, you get nothing.)
However, if the employee hasn't been made aware of that limitation, then the employer can't rely on it. In the recent case of Poole v. Whirlpool Corporation, Mr. Poole was on international assignment when the Bonus Plan was implemented in 2005, and was never advised of the 'active employment' requirement until after his termination in 2010. Accordingly, he remained entitled to his bonus throughout the notice period, which the Court found was 19 months. This bonus entitlement ultimately amounted to more than $100,000 through the notice period.
Other points of interest in this case include the choice of proceeding: While it was certainly not a Simplified Procedure case (the overall judgement ended up being in excess of half a million dollars), the plaintiff moved for summary judgment, leading affidavit evidence. The main issues appear to be the length of the notice period, entitlement to the bonus, and entitlement to other benefits, but there were no major factual disputes. Neither party cross-examined the other side on their affidavits, and so the proceedings were relatively expeditious. However, "relatively expeditious" is still expensive - the Court ended up awarding the plaintiff partial indemnity costs in the amount of $25,000.
Thoughts on Bonus Limitations
Where the bonus limiting language exists, and the bonus is not established to be an integral part of the compensation structure, the limtation can be upheld. However, I believe that there are difficulties with this approach that have not been explored in the jurisprudence.
We start, as I have said, with the default position that the employee is entitled to receive, as pay in lieu of notice, compensation for anything he would have received had his employment been continued through the notice period. When there is bonus language implemented in a manner insufficient to constitute a binding term of the contract, it cannot rebut that common law presumption - when you are terminated, your entitlement to damages for pay in lieu of notice continues to include everything you would have received had you been actively employed through the notice period. This issue is similar to the one I argued when dealing with the share repurchase agreement in Love v. Acuity Investments, in a previous blog I maintained. (See footnote below.)
Where there is ostensibly binding contractual language stating that an employee must be actively employed at certain dates, such that the bonus will not be payable if terminated prior to such dates, then this must be seen in light of certain restrictions surrounding entitlements on termination: The Employment Standards Act, 2000 sets minimum requirements for notice periods which cannot be contracted out of, and these minimum requirements have only one relevant exclusion, being for purely discretionary bonuses "that are not related to hours, production or efficiency." In other words, where bonuses are not purely discretionary, or are based at all upon hours, production, or efficiency, any contractual provision which purports to relieve the employer of the obligation to provide such bonuses on termination would be void.
All that being said, I think such language should generally be sufficient to avoid any pro rata calculation of bonuses: If the notice period proceeds past the vesting dates, the employee gets the bonus. If not, he doesn't. (This is usually reflected in the existing law, though I note that my other thoughts may not be.)
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Love v. Acuity Investments footnote:
Put briefly, the Court of Appeal in Acuity held that a termination without notice (in the absence of just cause) is, in and of itself, a contractual breach, ending the employment immediately and entitling the employee to damages...and therefore, a separate share repurchase agreement allowing the employer to repurchase employee-owned shares at the end of employment could be triggered immediately upon such termination, without waiting for the end of the notice period, and therefore the employee has no claim to damages based on subsequent appreciation in the value of the shares. I would argue that this decision is simply internally inconsistent: If the employer has no contractual right to terminate the employment relationship immediately, then the compensation principle entitles the employee to monetary damages to put him into the same position he would have been in but for the breach of contract - i.e., had he been allowed to continue to hold the shares to the end of the notice period.
Subscribe to:
Posts (Atom)