The document summarizes key issues in current employment law, including social media, overtime for smartphone use, working from home, managing older employees, and sick/disabled employees. It discusses emerging trends in social media and employment liability risks. It addresses when smartphone use constitutes overtime work and considerations for employees working from home. It also outlines challenges of an aging workforce and strategies for performance managing and accommodating older employees. Finally, it discusses managing employee performance and disability, including when they are related and unrelated.

1. Current Issues in Employment Law
B.C. Legal Management Association
November 13, 2013
Richard Press 604.643.6444
Davis LLP

2. Agenda
•
•
•
•
•
Social Media - Emerging Trends
Smartphones - Overtime Issues
Work from Home - Employer Considerations
Older Employees - Transition and Performance
Sick and Disabled Employees - Performance and
Disability Management

3. SOCIAL MEDIA
•
Emerging Trends

4. Liability Risks
•
•
October 2011, OIPC releases Guidelines for Social
Media Background Checks.
Biggest liability risks:
•
•
•
Errors in information
Over-collection of information
Over-reliance on consent

5. Federal and BC privacy legislation allows for collection of
personal information without knowledge and consent of the
individual if the information is already publicly available.

6. Within the Employment Relationship
•
•
•
•
•
Loss of productivity at work
Creation of a poisoned work environment
Leaks of confidential information
Insubordination by criticism of the employer or its
management
Damage to an employer’s reputation.

7. Loss of Productivity at Work

8. Creation of a Poisoned Work Environment:
Aliens around the Coffee Table

9. Aliens Around the Coffee Table
Roberta likes to talk — unfortunately she might have short
term memory problems — always forgets the people's
names she's talking about, or the point of her story, or the
ending - If I had to choose a planet that she came from, I'd
say it was some dark planet, with very little oxygen...

10. Aliens Around the Coffee Table
Next to her sits one of the new girls.... She's worked here
for less than three months and has ... already used up all
her sick time, her family sick time, personal leave and
bereavement leave — and leaves 20 minutes early each
day.
But she's never missed a coffee break

11. Aliens Around the Coffee Table
Next to her sits Bill, as in "Dollar" Bill. Probably the most
perfectly named person in the office. He is so cheap it's
scary. Way past frugal, or careful with his money.... he
brings his lunch to work. It is always a stale peanut butter
sandwich.... and a spotty banana.
Can you imagine being his spouse, or child.

12. Aliens Around the Coffee Table
I work in a lunatic asylum. Nurse Ratched [FN6] (aka, the
supervisor) just sent the following e-mail to her staff: (email)
So, WTF does this mean. Because we already number the
documents, it looks like the LIC (lunatic in charge) now
wants us to go ahead and renumber all the pages within a
document as well.

13. Aliens Around the Coffee Table
My job is so screwed up. I thank God every day that there
is a pension involved at the end of this.
Otherwise I would be so gone....

14. Leaks of Confidential Information

15. Applebee's
Source: reddit.com

16. Leaks of Confidential Information
Municipality of Chatham-Kent
•Blog with photos and derogatory comments about
residents of a nursing home
•Contrary to confidentiality policy
•Termination upheld at arbitration

17. Leaks of Confidential Information
•
•
•
•
Tremblay - Human Rights Case
Confidential Settlement
Complainant posted:
“I didn’t get what I wanted but I still walked away with
some”
Human Rights Tribunal ordered $1000 to be paid to
employer

18. Insubordination
•
Lougheed Imports Ltd. dba West Coast Detail &
Accessory Centre
• Employee’s Facebook entry:
“west coast detail and accessory is a fuckin joke....dont
spend your money there as they are fuckin crooks and
are out to hose you...there a bunch of greedy cocksucin
low life scumbags... wanna know how I really
feel??????”

19. Lougheed Imports
Labour Relations Board:
•No expectation of privacy
•Had over 100 ‘friends’, some of whom were fellow
employees

20. Insubordination
•
•
•
•
•
Walder - BC Employment Standards Tribunal
Terminated while on maternity leave
She found out that there would be changes to her
schedule when she came back to work
Posted on Facebook that a co-worker was stealing her
job
Termination upheld

21. Damage to an Employer’s Reputation
Misuse of the
employee’s
social media
accounts
Bell Technical Solutions v
Communications
•Comments about company and
supervisor were derogatory
•Had 140 Facebook “friends” - so not
private

22. Damage to an Employer’s Reputation
Simcoe County District School Board
•Gay teacher suspended for Facebook posting
calling the principal “homophobic”
•Even with restricted privacy settings on Facebook,
posting was considered to be “public”
•Risk of reputational damage was legitimate

23. Porter Airlines
•
$4 million claim against Canadian Office & Professional
Employees Union for comments on Twitter - including a
fake video showing a crash of a Porter plane

24. Porter Airlines
•
•
Union claims freedom of speech
Decision will impact what unions can say about the
employer during a labour dispute

25. Misuse of the Employer’s Social Media Accounts
“We’re tweeting live from HR where we’re all being fired!
Exciting!!”

26. Best Practices
Create and Update Employer Policies

27. Best Practices
•
•
Social Media Policy
Confidentiality Policy

28. Best Practices
Education and Training

29. Best Practices
Identify High Risk Employees

30. Conclusion
Social media is a valuable tool for an employer for
marketing, connecting with customers, and managing
employees.

31. SMARTPHONES
•
Overtime Issues

32. Boundary between “working time” and “non-working” time
has become increasingly blurred.

33. When is an employee working?

34. “Unauthorized” work outside regular hours
“On the Internet, no one knows you’re a dog.”

35. The claim for unpaid overtime against Scotiabank is for:
•$250 million in general damages and
•$100 million in punitive damages

36. No Class Actions for claims under BC
Employment Standards Act

37. Overtime for Work
•
•
•
ESA requires payment for “work”
Work in excess of 8 hours/day or 40 hours/week =
overtime
ES Branch defines “work” as:
•
•
The labour or services performed by an employee, and
Being on call for an employer at a location designated by the
employer, except the employee's residence.

38. De Minimus Cell Phone Use
•
•
In the USA, yes
In Canada, sorry … work is work
•
•
How does this work for an employee not working?
Do we pay in 1-minute increments?

39. What About Being “on call”?
•
•
•
•
If at home - not work
If at a place designated by employer - work
If free to wonder - not work
ES Branch (1990s) guidelines:
An employee whose employer expects a response within a hour of
being paged is not considered to be at work, however, one who
must report to the workplace within five minutes of being paged is,
since the employee would have to be within blocks of the workplace
in order to meet this expectation.

40. The Cost of Answering a Text
•
ES Branch policy:
When [an on-call] employee responds to a page, or a cellular call,
the employee has in effect, "reported" to work and is entitled to
minimum daily pay under s.34 of the Act.
•
Section 34 = two hours minimum pay

41. What if the employee is not on call?
•
•
No cases
No policy

42. Possible Overtime

43. Probable Overtime

44. WORK FROM HOME
•
Employer Consideration

45. Employment Standards
•
•
Daily hours
Overtime

46. WorkSafeBC
•
•
•
Safe work site
Ergonomics
Reporting and managing injuries

47. Operational Issues
•
•
•
Productivity (Measuring metrics)
Teamwork (integration)
Direction and supervision (managing the away
employee)

48. OLDER EMPLOYEES
•
Transition and Performance

49. The Human Resources Context
1.
2.
3.
4.
Baby Boomers
Generation X
Generation Y
Millennials
(1946 - 1964)
(1965 - 1980s)
(1980 - 2000)
(2000 ------>)
Greater number of older workers in the workforce

50. Baby Boomers Who Keep on Booming
•
The Challenges:




Aging workforce
Smaller pool of workers
Legal obligations
Medical and benefit programmes
• The Advantages:
 Maturity
 Experience
 Judgment

51. Baby Boomers Who Keep on Booming
The matters of concern that we are seeing in our practices:
Termination Options and Severance Costs
Termination Options and Severance Costs
Benefit Plans
Benefit Plans
Performance Management
Performance Management
Duty to Accommodate
Duty to Accommodate

52. Baby Boomers Who Keep on Booming Termination
1. No mandatory retirement:
 Federally – December, 2012
 There must be a “BFOR”
 Examples:
• Pilots
• Fire Fighters
• Police

53. Baby Boomers Who Keep on Booming Termination
End of
Employment
2. No end date of employment:
Before
60
Now
60
61
62
61
63
62



64
63
65
64
Retirement
65
Need to performance manage
Coax employees into retirement
Concern paying severance in order for employee to leave

54. The Law, HR and Your Older Workers
3. Notice periods for long-serving employees
Age
Age
+
Length of
Length of
Service
Service
Greater
= Greater
Severance
Severance

55. The Law, HR and Your Older Workers
4. Benefit coverage for severing employees
“Owe the employee 22 months of severance, but possibly 10 years
of LTD benefits…”
Brito v. Canac Kitchens 2012, ONCA 61
severance (Approximately $5,500)
Age 55
Age 57
Age 65
LTD ($200k)

56. Baby Boomers Who Keep on Booming Alternative Strategies to Termination
1.
2.
3.
4.
Phased retirement
Fixed on short-term contracts
New employment opportunities
Early retirement incentives
•
Most avoid discrimination claims

57. Baby Boomers Who Keep on Booming Benefits
1. Concerns when employers change benefits for retirees
Gratuitous
Gratuitous
Promise
Promise
Can Change
OR
Deferred
Deferred
Compensation
Compensation
Cannot Unilaterally Change
2. Keeping your options open
Gustavson v. Timberwest Forest Corp, 2011 BCJ 1943
“Out of province medical supplies”

58. Baby Boomers Who Keep on Booming Benefits
3. Supreme Court to examine whether “severance” and
employer-paid pension is “double dipping”
severance
Age 65
Age 67
See: Waterman v. IBM Canada Ltd.
Pension

59. Baby Boomers Who Keep on Booming Performance
The Challenge
•Performance Management
 Not easy
 Will be critical to do
•Potential Concerns
 Work becomes physically challenging to perform
 Productivity diminishes
 Absenteeism and attendance

60. Baby Boomers Who Keep on Booming OHS Considerations
An aging body in a workplace…
Musculoskeletal
Musculoskeletal
System
System
Cardiovascular
Cardiovascular
and Respiratory
and Respiratory
Systems
Systems
Mental
Mental
Processes
Processes
Hearing
Hearing
Vision
Vision
Skin
Skin
Sensory &
Sensory &
Motor
Motor
Processes
Processes

61. Baby Boomers Who Keep on Booming OHS Considerations

62. Baby Boomers Who Keep on Booming Performance
Potential Strategies
Similar to regular employees – but more practical may be required
in order to successfully use
1.Use objective and rational evaluation tools
2.Evaluate evenly and consistently
3.Hold regular performance reviews
4.Use clear language
5.When necessary, constructive criticism and clear warnings

63. Baby Boomers Who Keep on Booming Performance
Potential Strategies (continued)
6.Document, document
7.Connect compensation directly to performance

64. Baby Boomers Who Keep on Booming Accommodation
•
Duty to accommodate to the point of undue hardship
but not necessary to provide the perfect solution
•
What does this mean for an older worker:

65. Summary
•
An aging workforce
•
A need to manage:
•
•
•
•
Performance
Human rights (accommodation)
Occupational Health & Safety
A desire to avoid legal issues

66. SICK AND DISABLED EMPLOYEES
•
Performance and Disability Management

67. Performance and Disability Management
•
•
•
Performance unrelated to a disability
Performance caused by a disability
Disability as a performance control strategy

68. Two Common Questions
•
•
Can we performance manage while on GRTW?
Can we terminate employment when someone is on
disability?

69. Disability Unrelated to Performance
•
•
•
•
Coach/discipline in usual course
No need to wait for RTW
Should address performance as soon as employee
sufficiently healthy to attend a meeting
Should advise employee of performance issues as soon
as possible

70. Role Play
•
•
•
Bob gets a poor performance review. He is faulted for
accuracy. Bob’s supervisor alerts him of another accuracy
error and says HR wants to speak with Bob.
HR had prepared a PIP for Bob.
Bob begins sick leave. His doctor’s note says he will be back
in one week.
What do you do?
What if his doctor’s note said he needed three months off?

71. Disability Related to Performance
•
•
Obligation to accommodate to the point of undue
hardship
Consider closely the link between performance and
disability

72. Role Play: The Stressed Paper Maker
•
•
•
Employee has weak heart. Doctor says stress causes
increased risk of heart attack. Doctor says stress
caused by supervisor
Employee suggests he work without supervisor.
Employee is average performer, but has shown a need
for supervision in past

73. What the Human Rights Tribunal Said
•
•
•
•
•
Had accommodated to point of undue hardship
Employer had offered alternative work (employee turned
it down)
Employer had worked with employee’s doctor
Employer had kept employee on LTD pending RTW
Employer not expected to cede right to manage

74. Role Play: The Stressed Chef
•
•
Employee passed over for promotion. Goes on stress
leave
Tells employer that mundane job is causing stress and
needs promotion to return to work

75. What the Court Said
•
•
•
A refusal to alter work practices is not a constructive
dismissal
Exploring all options, including severance, with an
employee is not a constructive dismissal
Taking preliminary steps to replace an employee who
may be absent indefinitely is not constructive dismissal

76. Empowerment Through Illness
•
Balancing:
•
•
•
The duty to accommodate
the right to manage and direct
An employer need not cede a fundamental business
condition

77. Employees who are Sick of Work
•
•
•
Use of an illness to control work environment
Demands for concessions in management and direction
Illness may be legitimate or questionable

78. Common Themes
•
•
•
•
Discontent with being managed
Desire for greater autonomy or improved position
Use of an illness to justify management or autonomy
changes
Often a refusal to compromise

79. Employer Responses
•
•
•
•
Avoid cynicism and disbelief
Avoid immediate reaction
Focus on process
Follow (or create) policy on addressing disabled
employees

80. Medical Opinion
•
•
•
G.P. may be a parrot or advocate for employee
Get specialist opinion
Consider:
•
•
•
•
Functional capacity evaluation
Physical demand analysis
Independent medical examination
Psychological assessment

81. Accommodation Options
•
Return to work
•
•
•
•
•
Weekly indemnity pending recovery or stabilization
Termination (with package)
•
•
Own job
Own job with modifications
Another job
Frustration or non-culpable termination
Employee should facilitate return to work

82. 5 Take Away Points
•
•
•
•
•
Have a transparent dispute resolution process
Have an effective disability management policy
Be proactive with confrontational employees
Be patient and objective in addressing employee
Follow a process (including getting advice as needed)