Archive for June, 2009

Social networking sites – research tool or just a way to snoop?

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

Social networking sites on the Internet such as Facebook, MySpace and Twitter are all the rage, to the point where it’s hard to find somebody who isn’t “linked in” to one of these services. There are sites geared to interaction for business purposes as well as purely social sites, but one thing is for sure: These sites make it a lot easier to find out information about people and know what they’re up to.

Naturally, this “Web 2.0” explosion hasn’t left employers unaffected. Employers check the Facebook pages of job applicants to learn more about them, and if the individuals don’t have the right privacy settings, anything is there for the viewing, including photos and comments that might not be the most flattering.

A woman in Zurich, Switzerland, recently found out about the perils of snooping employers online when she called in sick, saying she needed to lie down in the dark to get better and sitting in front of a lighted computer screen wouldn’t help her recovery. However, a co-worker went on Facebook and saw she was online. Word reached her supervisors and the company fired her for dishonesty. However, the woman claimed she was only viewing the site on her cellphone and claimed her employer sent her a false friend request so it could access her profile.

Online privacy issues were raised recently in Bozeman, Mont., where job applications with the city included a waiver allowing it to conduct a background check on the applicant, which is fairly standard. However, what wasn’t so standard was a part of the application that asked candidates to list “any and all current personal or business websites, web pages or memberships on any Internet-based chat rooms, social clubs or forums to include, but not limited to: Facebook, Google, Yahoo, YouTube.com, MySpace, etc.”

It also requested candidates to include usernames and passwords for each site.

The city’s argument was that some positions, such as fire, police and lifeguards, require people of “high integrity” and checking online profiles and activity helped it flesh out candidates of “the highest moral character.”

It is important for employers, especially ones with safety and security sensitive jobs, to find employees who are the right fit. But is the City of Bozeman going too far? Do employers have the right to snoop in employee’s affairs outside of work through their online profiles and activity? Should what they find have any relevance in the workplace?

Les affaires de la coeur — at work

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

It’s springtime, when young people’s thoughts turn to romance, and one thing that’s sure to get tongues wagging in a workplace is two employees becoming romantically involved. Many recognize discretion in such circumstances is important, as is being able to remain professional. However, there is the potential for disruption of the workplace environment, especially if the employees work together.

Some employers have policies that provide guidelines or outright prohibition of any romantic involvement between employees. While these policies might be grounded in legitimate concerns, it’s difficult to enforce them. The reality is, people often meet more people through their job than any other means. And when many people meet and interact, it’s inevitable sparks will fly at some point. We’re only human.

It’s difficult to pin down actual numbers, but Vault’s 2005 Office Romance Survey found 58 per cent of 610 employees surveyed across the United States had been involved in a workplace romance. And anecdotal evidence abounds — most people reading this column likely either know of an office romance or have been involved in one themselves. It’s difficult, and perhaps unfair, for employers to try to ban this from happening.

However, the lines of propriety are blurred a little more if an office hookup is between a managerial employee and a subordinate. Conflict of interest, coercion and the vulnerability of the subordinate become concerns, as well as the potential for a much larger affect on a workplace and the careers of those involved. While a general office policy against romantic relationships between employees might be difficult to justify and enforce, a more specific one prohibiting supervisors and subordinates from entanglements might be seen as more reasonable, due to the risks.

Last month, the Ontario Superior Court of Justice in Cavaliere v. Corvex Manufacturing Ltd. upheld the termination of a plant manager who was fired for having an affair with a subordinate — and married — employee. The fact he had been disciplined for inappropriate behaviour in the past was a contributing factor to his firing, but the manager argued he shouldn’t face sanctions for the current relationship, which was between two consenting adults. Although there was a potential for conflict of interest at some point, the subordinate didn’t report directly to the manager and there wasn’t evidence of any problems until the subordinate employee’s husband found out and complained to human resources.

Still, the manager argued the situation was a private dispute between the three people and just because they were all employees of the company, it didn’t give the company the right to interfere in their business.

But do employers have the right to dictate employees’ social behaviour, either in or outside of the workplace, if they can’t prove a direct negative effect on the workplace but are worried about a potential problem? Can they completely ban workplace romances, or just put limits on them, such as in a supervisor-subordinate situation? To paraphrase Pierre Trudeau, does the employer have any place in the bedrooms of its employees?

For more information see:

Cavaliere v. Corvex Manufacturing Ltd., 2009 CarswellOnt 3199 (Ont. S.C.J.)

When sales push comes to shove

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

Employers have to treat workers with respect. That’s a simple fact of the employment relationship. Companies that don’t could find themselves on the losing end of an employment law case, having to fork over significant amounts of money to compensate workers for things like stress and, particularly in human rights cases, injury to dignity caused by their conduct.

 Bad-faith damages, especially in the wake of last summer’s redefinition by the Supreme Court of Canada in Honda Canada v. Keays, are related to hardship and damages suffered by the employee because of the employer’s conduct in the manner of dismissal.

Regardless of whether an employer’s hurtful conduct happens during the course of employment, in the manner of dismissal or afterwards, it’s interesting to see how courts and arbitrators interpret the actions of employers and the effects they have on employees.

I recently came upon an interesting case from late 2008 dealing with the harassment and physical assault of a Bell Mobility employee. Admittedly, the circumstances make the case somewhat unique and the decision should be considered in that light, but there are lessons to be learned from the ruling.

The employee, a 60-year-old woman, was often yelled at and belittled by her manager. One day, the manager was so fed up with her he pushed her lightly into a filing cabinet to get her out of his way. The employee was deeply affected by the incident, particularly after the manager didn’t apologize and implemented a performance improvement plan for her.

It’s notable the Ontario Superior Court of Justice awarded the employee five years’ pay — more than $500,000 — after she couldn’t go back to work because of post-traumatic stress disorder and depression stemming from the assault, but what is most interesting is the court didn’t just award damages to the employee.

The employee’s stress disorder had made her withdrawn and unable to do as many chores or activities around the house. She also didn’t feel up to socializing as much with her friends and this had a signficant effect on her romantic relationship and her partner’s life as well. So the court said the employee’s partner deserved some cash too, and ordered Bell Mobility and the manager to pay the partner a total of $15,000 for loss of companionship.

Though the circumstances of the case involving the physical assault are unique, Stuart Rudner, a partner with Miller Thomson in Toronto, says it’s possible the court’s reasoning could be used in other cases dealing with severe psychological harassment of employees. Bell Mobility’s liability for its manager’s actions also falls in line with recent proposed changes to Ontario’s Occupational Health and Safety Act, which creates vicarious liability for employers in specific situations of pyschological harassment and bullying, he says.

The balance between work and home life is an important issue for employers and employees. Could a decision such as this open the door to similar claims, or is it an aberration? If an employee suffers extreme psychological harassment at work that affects her home and social life, could similar awards be doled out to her close companions?


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