Legal Ease

Among the possible acts of workplace insubordination, criticizing your boss to his or her superior ranks high on the list of actions sure to generate a negative reaction.  But what if the criticism was solicited rather than voluntarily offered up?

Our common law of wrongful dismissal establishes most employees’ entitlement to notice of termination (or pay in lieu) based, primarily, on the employee’s tenure.  What some employers don’t know is that a court may regard that tenure as continuous through one or more breaks in service.

Employees sometimes feel an uncontrollable urge to speak frankly about their feelings for their employer.  If they do this in any kind of a public forum, they may be talking their way out of a job.

Ontario has introduced its Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace).  This legislation will impose broad obligations on employers in that province with respect to workplace violence and harassment.

The fact that there may be misconduct on union picket lines during a labour dispute should not surprise anybody.  What may be surprising is that certain individuals may be present for the express purpose of inflaming the situation.

One of the stranger aspects of the law of wrongful dismissal is the extent to which the duty to mitigate may compel a fired employee to return to work for the firing employer.  Notwithstanding that this may be an uncomfortable arrangement for the terminated employee, it seems that the courts (in B.C. at least) are embracing this concept.

As I watch the slow progress towards capping BP’s ruptured oil well in the Gulf of Mexico, I am reminded of the near-mythical oil patch hero, “Red” Adair.  As gallon after gallon of oil gushes into the Gulf, I wonder where people with his brand of courage and skill have gone.

Some employers actively discourage intimate relationships between employees.  No employer seems to take this approach as far as the military.

A waitress in North Carolina recently found herself looking for work after posting a complaint about customers on her Facebook page.  This is just the latest example of the increasing impact of technology on the employment relationship.

Just about any employment lawyer will tell employers that, in most cases, it’s really not worth suing former employees.  Generally speaking, the costs of recovering debts for minor theft, repayment of unearned relocation and training allowances, etc. will outweigh what the employer could hope to recover.

Not all categories of employment are governed solely by cookie-cutter laws such as employment standards statutes.  Journalists are an example of a group which, to some degree, operates under a specialized set of laws.

For two Winnipeg teachers, the last several months have surely been an excruciating and humiliating experience.  If they were ever going to experience a “What was I thinking?” moment, this was definitely it.

April 9th marked the anniversary of the attack by Canadian forces on Vimy Ridge, France, in 1917.  There are good business lessons to be learned from the way Canadian military commanders approached their task.

The crash of the presidential plane near Smolensk earlier this week claimed the life of Polish President Lech Kaczynski and many of Poland’s highest ranking political and military officials.  Also killed in that tragic accident was Anna Walentynowicz, the so-called “godmother” of the Polish Solidarity movement.

A complaint before the B.C. Human Rights Tribunal, involving an allegation of discrimination against a stand-up comic, is attracting much attention and comment.  I sense this is one case we’re going to be hearing about for a long time to come.

According a recent article by Randy Shore, published in the Vancouver Sun, the Insurance Corporation of British Columbia (ICBC) has implemented a policy banning consumption of alcohol by employees during the work day.  Unfortunately for ICBC, its work day includes a lunch period for which employees are not paid.

According to the Globe & Mail, employers and recruiters are assembling a “blacklist” of people considered unfit for hiring.  Apparently, if you are a liar, a loser, or a misfit then the chances are good that your name will end up on such a list.

In the employment law world, wrongful dismissals eventually come down to a question of money.  Looking at how much money a wrongful dismissal might cost in damages, before you leap into firing, is a good strategy for any employer.

A recent Globe & Mail article told of some companies which have adopted an unlimited vacation policy for certain employees.  This strikes me as a short-term trend which won’t have much staying power.

If my practice is any sort of indicator, not-for-profit organizations are a bountiful source of work for employment lawyers.  Most often, the problems I encounter involve a broken relationship between the organization’s board of directors and its executive director.

The B.C. Court of Appeal recently upheld the premise that perceiving a person to not have a disability does not constitute discrimination.  It’s amazing, to me, that this issue ever actually reached our Court of Appeal.

One of the primary aspects of most Canadians’ planned retirement income is Canada Pension Plan (CPP) retirement benefits.  Effective in 2012, the CPP will be implementing a series of changes to how those benefits are calculated.

One of the factors marking the line between employees and independent contractors has been eligibility for employment insurance (EI) coverage.  As a result of changes to federal legislation, the line just became somewhat more blurry.

Now that we’re into the first January of a new decade, it’s as good a time as any to assess how we perform our jobs on a day-to-day basis.  Human resources managers are no different, and here are my five suggestions of things they might consider trying in 2010.

The recent Report Following a Public Interest Investigation respecting the death of Robert Dziekanski relied heavily on video evidence produced by a bystander.  I’m thinking employers should get accustomed to facing such evidence of the actions of their staff.

Any time a Canadian Prime Minister visits China, to advance economic issues or otherwise, the topic of human rights is expected to be on the table.  This seems to be because, to many, it is unacceptable for Canada to engage in relations with countries which have a questionable human rights record.

It’s the time of year when good boys and girls look forward to gifts and their parents anticipate the seasonal office party.  Controlling alcohol consumption at the office party substantially increases the odds of those parents, and their employer, having a happy and healthy holiday season.

On a Saturday afternoon in August, 1911 in New York City, hundreds of female garment workers prepared to head home at the end of their long workday.  146 of them would not make it out of the workplace alive.

So-called payday loans must rank up near the top of the list of things which may be viewed as both a blessing and a curse.  Regardless of how you view them, the companies which provide them will soon be subject to new regulations intended to protect their customers.

At this time of year, when we pay tribute to fallen members of our armed forces, I find myself thinking about what their workplace must have been like.  Theirs is, we should all remember, the toughest job of all.

Of all the topics human resources professionals have to wrestle with, none is more compelling at the moment than the H1N1 flu pandemic.  It presents, at least potentially, a workplace dilemma which few companies have experience in solving.

There are two types of employment contracts, indefinite and limited-term.  The misuse of the latter, and the resulting liability, is a trap into which employers routinely stumble.

Many employees nowadays belong to self-governing professions.  Lawyers, doctors, accountants, and engineers are just a few of the many.

As surely as kids heading back to school and Christmas decorations appearing (too early) in stores, September brings annual projections of pay increases for the following year.  These projections can – if used in a considered fashion - be a useful guideline as your business approaches its yearly pay review process.
 

In Auckland, New Zealand a recent news item told the story of Vicki Walker who was fired from her job, in part, because of her “confrontational” emails.  Ms. Walker had apparently made a practice of using block capital letters, bold typeface, and red typeface in emails.
 

As I enjoyed the last long weekend of summer, it occurred to me that I had only a foggy notion of why we have a “Labour Day” statutory holiday.  It turns out that there are good, if distant, reasons for this particular day of leisure.
 

Millions of Canadians’ retirement hopes rest on the fiscal health of the private pension plan to which they’ve contributed during their career.  Understandably, that makes them sensitive to how the employer administers the pension plan fund.

Complying with human rights obligations relating to employees suffering the disease of addiction is a challenge for human resources professionals.  The challenge increases when the employee engages in misconduct which is driven by that addiction.

The U.S. National Transportation Safety Board has reported that, at the time of a recent mid-air collision between an airplane and a helicopter, the air traffic controller was making a personal telephone call.  The crash killed nine people and is an example of what can happen when an employee is engaged in personal business rather than focused on work duties.
 

If asked, “Do you consent to being assaulted at work?” the great majority of employees would undoubtedly answer, “No.”  In some workplaces, however, violence is just part of the game.

We’re all familiar with hearing a flight attendant ask, “Is there a doctor on board?” due to an in-flight medical emergency.  Most of us, however, are probably not familiar with the concept of doctors claiming an entitlement to be paid for the services they provide in response.

When it comes to the workplace, it’s fair to say the employer has the authority to take some liberties in monitoring the activities of employees.  According to an Ontario judge, surreptitiously spying on a manager isn’t one of them.

In 2007 a group of current and former CIBC employees launched a class action lawsuit claiming over $500 million in damages for unpaid overtime.  Two years later, that class action has been rejected by an Ontario court, perhaps signaling the end of such claims.

It seems, from my perspective, to have become fashionable for employees to publish critical comments about their employer (or former employer) on the internet.  In many instances, these publications are accomplished using a pseudonym.

Employment lawyers commonly advise employers who are asking how to eliminate personal relationships between employees.  That result is likely one which is unachievable, both legally and practically.

In the employment world there are employees, contractors, and what I call in-betweens.  The category into which an individual falls will have a substantial impact on his or her entitlements upon the termination of the relationship.

The pick-up hockey group strikes me as a quintessentially Canadian phenomenon.  It comprises a group of casual players, usually not of extremely high calibre, getting together on a regular basis to play the game they enjoy.

In this period of economic decline, many employers are faced with the need to restructure their workforce.  Unfortunately, imposing unilateral changes upon employees raises the risk of constructive dismissal claims.

It appears that the Canadian Auto Workers (CAW) have reached a deal which will provide Chrysler LLC’s survival plan with a chance of success.  The ramifications of this deal will go far beyond the walls of Chrysler’s production facilities.

It’s not all that often that something really different happens in the world of wrongful dismissal.  But, just when an employment lawyer thinks he’s seen everything, another weird situation pops up.

While writing a few weeks ago about the B.C. teachers’ reluctance to administer province-wide standardized tests, I was reminded of the 1925 case of State v. Scopes in Tennessee.  That trial went on to be known as the “Scopes Monkey Trial” and is perhaps the most celebrated example of a court addressing an employee’s obligation to follow workplace rules.

In 2005, the Supreme Court of Canada had its first opportunity to interpret a workplace whistleblower law.  It took the opportunity to signal to the business community that courts will give broad and liberal meaning to such statutory protections.

One of the riskier strategies employers will engage in is a mischaracterization of the reasons for dismissal of an employee.  When that extends to attempting to mislead a judge about those reasons, the strategy can become a very costly error.

Over the past few months a battle has been fought in B.C. between the Teachers Federation and the Public School Employers’ Association over the application of province-wide standardized testing. The BCTF assembled broad support amongst its members for its refusal to administer the tests to B.C. students.

In the unionized employment context there is a recognized right to remain silent when asked to participate in an investigation by the employer. As two B.C. Ferries employees have discovered, however, that right is not without exceptions.

When Richard Flores began a two week medical leave from his job as a pasta maker, he had no reason to think his employment would be in jeopardy. Soon after his return to work from a bout of acute gout arthritis in his foot, however, Flores found himself out of a job.

It amazes me how few employers truly understand the sources of law, and their interaction, which impact the employment relationship. In trying to understand the various statutory, contractual, and common law influences on the employment relationship, all they need to know are the rules of rock, paper, scissors.