This year, our Legal Update SIG focused on Social Media in the Workplace, Duty to Accommodate and Accommodating Family Status.
Huge topics, and ones we could have spent four hours on, let alone the two and a half we did.
Sun Rich Fresh Foods hosted a full house for the Legal Update SIG for our Brampton/Mississauga consortium. We welcomed Laura Cassiani, a partner in the Labour Relations & Employment Law group of Miller Thomson. Laura provides strategic advice on a variety of workplace and human resources issues, including regulatory compliance, human rights matters, discipline and termination, employment standards, health and safety, workplace privacy, policy development, contracts and accessibility.
For your reading pleasure, here are just a few of the takeaways from her presentation and the discussion which ensued:
Social Media in the Workplace.
There is actually no legislation for privacy rights for employees.
Off Duty conduct used to be “personal”, but now it is “out there” for everyone to see. The fact that the majority of people extensively use networking websites like Facebook, LinkedIn, Twitter, etc in reality results in no separation between our personal and public lives.
The fact is, technology has expanded the scope of the workplace. Employees may be “off duty” yet be expected to respond to communication. They are carrying a data enabled phone for work or checking the work laptop; why carry a second phone? Therefore, they are using the employers’ devices for both work and personal use.
Not only have the lines blurred bringing work outside the office, personal activities have been seeping into the workplace too. The Supreme Court of Canada has upheld that an individual has a limited right to privacy on an employer’s computer/network/phone. In order to mitigate that right, employers need to be very clear from the outset that there is NO expectation of privacy. You must have well established rules and policies to support that position.
But what about online behavior when off duty? The actions of a person could conceivably tarnish their employers good standing in the community. There are many aggravating and mitigating factors in a decision to uphold a discharge of disciplinary action. Courts are not swayed by “common sense” arguments. You need a policy which has been implemented consistently. Even then it is not cut and dried. Was it an isolated incident? Was the infringement perpetrated by a 30-year employee with an unblemished record? Or by an 18-month employee, who’s been testing the boundaries from the start.
How do we mitigate these risks? You must set out expectations in your policies for conduct and responsibilities both at work and off site, use of work time and resources. These policies must be enforced consistently and fairly. A basic rule of thumb is: Any conduct that would be prohibited in the workplace ought to be prohibited online.
Duty to Accommodate.
Employers have a duty to accommodate an employee up to the point of undue hardship. Here’s the thing; the larger the employer, the farther you have to go in your duty to accommodate. Your duty to accommodate has two parts and is triggered as soon as someone “puts up their hand”. First is procedural. Once you’ve received an inquiry, you must make a serious consideration and review the request; and you must develop on individualized assessment based on objective information. Second, is Substantive. In other words, it’s the result the accommodation to the point of undue hardship. Liability can flow from the breach of either component, even when the result is the correct one. Basically, you must show your work; the process is as important as the result.
Now you could be thinking, “all the onus is on the employer!” That is not quite true; Employees are responsible for triggering the duty to accommodate, there is a self-help obligation on the part of the employee, they must follow the course of treatment laid out for them and they must have made a reasonable effort to conform to the employers’ requirements.
A little sticky point. These three things are not relevant in the assessment of undue hardship: Employee morale; business inconvenience; and 3rd party preference.
What might accommodation look like? Changes to schedule, dress code, transfer to another position or unit, providing additional training, modifying job duties, bundling tasks, modification of hours, performance or training standards, job performance aids, etc.
Family status refers to: “Someone acting in the position of a parent to a child.” Hence, is applicable both to the mother of a high needs child and the adult child of a parent who is unable to withdraw themselves from his charge by reason of detention, illness, etc.
It is considered discriminatory treatment to ask an employee to alter their family care arrangements to the benefit of work, by suggesting to employees to seek a different position or by forcing they to move to part-time hours from full-time hours.
The obligation to accommodate is influenced by the substantive obligations that engage a parent’s legal responsibility to a child. A change in work rule OR a change in the family can trigger accommodation and one must keep in mind, there is a hierarchy of parental obligations, for instance a hockey game versus a medical emergency have a very different responsibility to accommodate.