In this presentation, Joe Hunder, Adrian Elmslie, Cristina Wendel, Fausto Franceschi and Alison Walsh, discuss the recent changes in labour and employment laws relating to HR practices. Workplace Accommodation: Duty of Employers vs. Employees Frustration – As it relates to Employment and nothing to do with raising Teenagers Social Media Background Checks Employees vs. Independent Contractors: What you need to know!

1. Update on Current HR Issues
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2. Workplace Accommodation: Duty of
Employers vs. Employees
Presenter: Cristina Wendel
Partner
Employment & Labour
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3. What is Workplace Accommodation?
• Workplace accommodation is the requirement to make
reasonable changes and adjustments to the workplace to
avoid a negative impact on an employee in relation to a
protected ground
• The purpose is to ensure equal treatment to employees
without discrimination
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4. What are the Employer’s Duties in the
Workplace Accommodation Process?
• Employers have the primary duty and responsibility to make
reasonable efforts to the point of undue hardship to
accommodate employees who face barriers and discrimination
in their employment based on the protected grounds
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5. What is Involved in Satisfying the
Employer’s Duties?
• Initiating the accommodation process
• Determining if or how the employee can be accommodated
• Reviewing/requesting/obtaining appropriate medical
information
• Discussing accommodation options with the employee
• Considering the employee’s reasonable concerns and
suggestions regarding accommodation
• Implementing accommodation
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6. What is Involved in Satisfying the
Employer’s Duties?
• Training and managing staff – management, supervisors and
coworkers
• Treating the employee with respect and dignity
• Respecting the employee’s privacy
• Being flexible and creative when developing accommodation
options
• Having ongoing follow‐up and flexibility
• Justifying a refusal to accommodate
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7. What are the Employee’s Duties in the
Workplace Accommodation Process?
• An employee seeking accommodation in the workplace has the
duty to:
– Inform the employer of the need for accommodation
– Provide the employer with sufficient information to substantiate the
need for accommodation and to enable the employer to develop
reasonable accommodation
– Actively participate and cooperate with the employer in the
accommodation process
– Facilitate the implementation of a reasonable accommodation
proposal
– Accept reasonable accommodation
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8. What Role do Unions Play in the
Workplace Accommodation Process?
• May share the employer’s responsibility to provide reasonable
accommodation
• Cannot rely on the collective agreement to avoid the duty to
accommodate
• May be in breach of human rights obligations if they sign a
collective agreement containing a discriminatory clause or if
they stand in the way of a reasonable accommodation
proposal
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9. To What Extent is Workplace
Accommodation Required?
• Accommodation is required to the point of undue hardship.
• What is undue hardship?
– No clear definition
– Case by case basis
– The hardship must be substantial – i.e. some degree of hardship is
acceptable
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10. What Factors May Be Considered in
Assessing Undue Hardship?
• Financial costs
• Size and resources of the employer
• The disruption of operations
• The effect on employee morale
• Whether the accommodation would have a substantial
interference on the rights of others or on a collective
agreement
• The nature and interchangeability of the workforce and
facilities
• Health and safety issues
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11. Scenarios and Solutions
• What if an employee fails to request accommodation?
• What if an employee fails to provide sufficient medical
information?
• Is the search for workplace accommodation limited to the
employee’s existing position?
• What if the employee requires additional training to be able to
fulfill the accommodated position?
• Does the employee have to be paid the same?
• What if an employee refuses an accommodation proposal?
• When can an employer terminate an employee’s employment
for frustration?
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12. Frustration – As it relates to
Employment and nothing to do with
raising Teenagers
Presenter: Joe Hunder
Partner
Employment & Labour
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13. I. Way Employment Can End
• Termination by Employer:
– With Cause
– Without Cause
• Resignation by Employee
• Frustration
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14. II. Doctrine of Frustration explained in the
context of Employment
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15. Frustration – How does it arise in
Employment?
• In Alberta each employment relationship is based on the law
of contract.
• Frustration is a legal doctrine that can bring about the end of
any contractual relationship.
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16. Significance of Frustration
• No obligation to provide notice or pay in lieu of notice.
• Obligation to accommodate may be discharged as employer is
likely at the point of undue hardship.
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17. What is Frustration? Legal Definition
• Frustration occurs when:
– There is a change of circumstances;
– The change is both unforeseen and not reasonably foreseeable;
– The change of circumstances renders the effect of the contract completely
different from what the parties intended or anticipated.
• [P]ut shortly frustration …[occurs] when the events and facts on which it is
founded have destroyed the subject matter of the contract, or have, by an
interruption of performance thereunder so critical or protracted as to bring
an end in a full and fair sense the contract as a whole, so superseded that it
can be truly affirmed that no resumption is reasonably possible.
a) [Lord Strathcona Steamship Co. v. Dominion Coal Co. [1926] A.C. 108 (P.C.)]
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18. Events that could be considered
Frustration
• Any critical supervening event of prolonged duration not
within the contemplation of the parties and through no fault
of the parties makes the employment contract incapable of
being performed and which radically alters the original
agreement:
– Death
– Loss of a designation/qualification
• Most commonly arises in the context of an employee suffering
a permanent disabling illness/disability.
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19. III. Frustration in Illness/Disability Cases
• The Central Question:
– Is the employee suffering from a permanent disabling illness/condition
which ought to bring about the end of the employment contract?
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20. Frustration in Illness/Disability Cases
• What is permanent?
• How long must an employee be off work?
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21. Frustration in Illness/Disability Cases
• Employer needs to be satisfied on solid and documented
evidence that the employee’s illness/condition is permanent.
• Permanent: Continuing or enduring without marked change in
status or condition.
• An employee being in receipt of long term disability benefits
will not be enough to make the determination that an
employee has a permanent illness/condition.
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22. Frustration in Illness/Disability Cases
• How long must an employee be off work?
– Fact driven inquiry into whether an employee’s condition/illness is
permanent. This will depend on the circumstances.
– Usually long period of time (in excess of 2 – 3 years).
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23. IV. Take Aways
• Employment relationship can end through contractual
frustration.
• When employment contract is frustrated employer relieved of
providing notice/pay in lieu of notice and duty to
accommodate can be discharged.
• Key is determining whether employee is suffering from a
permanent illness/condition.
• Do not assume condition is permanent.
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24. Social Media Background Checks
Presenter: Alison Walsh
Associate
Employment & Labour
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25. What is a social media background check?
• Social media background checks include:
– Searches conducted by HR on prospective employees by searching
social mediate sites such as Facebook, Twitter, Linkedin or Blogs, etc;
or
– Hiring a professional screening companies to perform background
checks.
• Section 33 of the Personal Information Protection Act (PIPA):
– When employers search for information about prospective employees,
the collection, use and disclose of that information is subject to the
privacy provisions of PIPA.
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26. PIPA and Restrictions on Collecting
Employee Information
• Sections 15, 18 and 21 of the Act provides that an organization may collect, use and
disclose personal employee information if the information is collected, used or
disclosed solely for the purpose of:
– Establishing, managing or terminating an employee;
– Managing a post‐employee relationship; but
– Does not include personal information about the individual that is unrelated to that
relationship.
• It must be reasonable for the employer to collect information for the particular
purpose for which it is being collected.
• Social media background checks may lead to violations under other Acts such as the
Alberta Human Rights Act.
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27. Risks Associated with Social Media
Background Checks
• The Information and Privacy Commission has identified four
risks associated with social media background checks:
1) Collecting irrelevant or too much information;
2) Accuracy;
3) Over reliance on consent; and
4) Inadvertent collection of third party personal information.
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28. Consequences of Violating Privacy
• An individual who suspects his or her privacy has been violated
may:
– Make a complaint to the Information and Privacy Commission;
– The Commissioner has authority to investigate the complaint and issue
an order;
– The Commissioner’s order can give rise to a cause of action for
damages for loss or injury;
– Commence a civil action for invasion for privacy.
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29. Tort of Invasion of Privacy:
Jones v. Tsige, 2012 ONCA 32
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30. Jones v. Tsige, 2012 ONCA 32
• Elements of the action of invasion of privacy are:
– An intentional intrusion;
– Into the seclusion of another or his private affairs or concerns;
– Which is highly offensive to a reasonable person.
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31. Jones v. Tsige, 2012 ONCA 32
• Limitations on action for invasion of privacy:
– A claim will only arise for a deliberate and significant invasion of
personal privacy;
– It is only intrusions into matters such as one’s financial or health
records, sexual practices and orientation, employment diary or private
correspondence that, viewed objectively on the reasonable person
standard, can be described as highly offensive; and
– No right to privacy is absolute and many claims for the protection of
privacy will have to be reconciled with, and even yield to such
competing claims as protection of freedom of expression and freedom
of press.
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32. Strategies to Avoid Invading Privacy
• Suggested guidelines of the Information and Privacy
Commission:
1) Recognize that any information collected about individuals is personal
information or personal employee information and is subject to
privacy laws, whether or not the information is publicly available
online or whether it is online but subject to limited access as a result
of privacy settings or other restrictions;
2) Conduct a privacy impact assessment including an assessment of the
risks associated with your use of social media as a component of
background checks.
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33. Factors to Consider when Conducting an
Assessment
• Find out what privacy law applies and review it, ensuring that there is
authority to collect and use personal information;
• Identify the purposes for using social media to collect personal
information;
• Determine whether the identified purposes for the collection and use of
personal information are authorized;
• Consider and assess other, less intrusive, measures that meet the same
purposes;
• Identify the types and amounts of personal information likely to be
collected in the course of a social media background check including
collateral personal information about other people that may be
inadvertently collected as a result of the social media background check;
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34. Factors to Consider when Conducting an
Assessment
• Identify the risks associated with the collection and use of this personal
information including risks resulting from actions taken based on
inaccurate information;
• Ensure that the appropriate policies, procedures and controls are in place
to address the risks related to the collection, use, disclosure, retention,
accuracy and protection of personal information.
• If the collection is authorized, notify the individual that you will be
performing a social media background check and tell them what you will be
checking and what the legal authority is for collecting it;
• Be prepared to provide access to the information you collected and used to
make a decision about an employee or volunteer. (Office of the Information and
Privacy Commission of Alberta, Guidelines for Social Media Background Checks, December 2011)
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35. Strategies to Avoid Invading Privacy
• The Information and Privacy Commission cautions that if you
are considering conducting a social media background check:
– Do not wait until after you conduct a social media background check to
evaluate compliance with privacy legislation;
– Do not assume in advance that a social media background check will
only retrieve information about one individual and not about multiple
individuals;
– Do not perform a social media background check from a personal
account in an attempt to avoid privacy laws;
– Do not attempt to avoid privacy obligations by contracting a third party
to carry out background checks; and
– Do not perform a social media background check thinking that an
individual will not find out about it. (Office of the Information and Privacy Commission
of Alberta, Guidelines for Social Media Background Checks, December 2011)
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36. Employees vs. Independent
Contractors: What you need to know!
Presenter: Fausto Franceschi
Partner
Employment & Labour
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37. Benefits to Employer in Retaining Services
of an Independent Contractor
• Save on benefits and other employer costs
• Short term or project specific assistance
• Assistance in non‐core areas
• Expertise of Contractor vs. In‐house Capability
• No withholding obligations
• No termination obligations
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38. Benefits to Worker of Being an
Independent Contractor
• Flexibility
• Income Splitting
• Claiming of Expenses that are Otherwise not Deductible
against Employment Income
• Potential for Greater Earnings?
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39. Key Implications
• Income Tax
• Employment insurance
• CPP
• GST
• Employment Standards
• Common Law Termination Obligations
• Employment Benefits and Insurance
• Workers’ Compensation
• Vicarious Liability
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40. Calling Someone an Independent
Contractor Does Not Necessarily Make
Him One
• Four tests:
– Control test
– Fourfold test
– Organization or Integration test
– Enterprise test
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41. Other Factors
• Does the worker hire his own helpers?
• Subcontracting of tasks?
• Exclusive employment?
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42. No One Test is Determinative
• Search for the true relationship based on examining all of the
possible factors
• Central question: Is the worker performing the services
performing them in business on his own account?
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43. Written Contracts
• Good Idea
• Not determinative but serves as intention of the parties
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44. Incorporation
• Not determinative, but useful
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45. Context is Important
• Protective legislation will be interpreted broadly
(eg. Employment Standards legislation)
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46. Conclusion
• Many factors to be considered when determining whether a
worker is an employee or independent contractor
• Ultimate determination is fact specific
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47. Questions?
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48. The preceding presentation contains examples of the kinds of
issues companies dealing with HR issues could face. If you
are faced with one of these issues, please retain
professional assistance as each situation is unique.

49. Thank you for Joining Us
Joe Hunder 780.423.7354 e: joe.hunder@fmc‐law.com
Adrian Elmslie 780.423.7364 e: adrian.elmslie@fmc‐law.com
Cristina Wendel 780.423.7353 e: cristina.wendel@fmc‐law.com
Fausto Franceschi 780.423.7348 e: fausto.franceschi@fmc‐law.com
Alison Walsh 780.423.7147 e: alison.walsh@fmc‐law.com
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