Archive for January, 2010

Getting fired for being too wired

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

After a flurry of new legislation in recent months, it is now — or soon will be — against the law in most Canadian jurisdictions to use a cellphone or other hand-held device while driving. The restrictions vary depending where you are — in some places, hands-free devices are allowed; in others, all electronic devices are banned. Either way, governments have made the move to try to make the roadways safer by getting rid of some of the distractions drivers face.

Employers with employees on the road need to ensure they remain safe and obey the law, and draft appropriate policies restricting the use of cellphones. But what if employees break these policies? How serious should it be treated?

In Alberta, which is one of only two provinces — the other being New Brunswick — that doesn’t have an official ban on cellphones for drivers either in effect or pending, Edmonton-based Steels Industrial Products talks tough when it comes to employee cellphone. The company has a policy banning employees from using any kind of cellphone or texting device while behind the wheel of a company vehicle. Even hands-free devices are banned. The company wants safety to be a top priority and feels the blanket ban ensures employees on the road will be safe. Any Steels employee that breaks this policy can be fired.

An employer can argue a violation of such a policy is a serious safety breach, but does it provide just cause for termination?

The answer, as always, depends. If the employer is in a jurisdiction where it’s illegal to use such devices, it may stand a better chance of having the termination stick. But if there is no law on the books, simply violating a policy may not justify termination.

Even where it is the law, is the misconduct egregious enough to justify immediate dismissal?

The transit service in Washington, D.C., fired 31 employees last year for using cellphones while driving. In Canada, it might not be so easy. It’s more likely this type of misconduct, despite its potential safety risk, wouldn’t be sufficient cause for dismissal and the employer would have to provide reasonable notice. Though employers like Steels want to show they’re serious about safety, progressive discipline is probably a better route to take.

Is violating an employer’s cellphone policy a serious enough breach of safety to warrant dismissal? How much should depend on whether it violates the law or not?

Jeffrey R. Smith is the editor of Canadian Employment Law Today. For more information, visit www.employmentlawtoday.com.

The benefits buck stops with the employer

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

Employers who offer benefits to their employees usually do so through group plans with insurance providers. By having all the employees together on group plans, the employer gets a special rate which makes it more affordable. However, as with private insurance plans individuals can purchase, claims usually have to be filed with the insurance provider, who then evaluates them on their legitimacy and whether it will pay out the benefits.

Employers may be tempted to just leave everything to the “experts” in these circumstances, but this could lead to problems if an employee is denied what she thinks she is rightfully entitled to. Even if a benefits plan is administered by an outside company, the employer should still be involved in how those benefits are administered and how claims are evaluated. If there is a whiff of discrimination or another problem, the employer can be held responsible because the benefits are a part of employment.

An Ontario arbitrator recently found a Hamilton hospital was responsible for the unfair treatment an employee received from its independent attendance management consultant. The consultant felt the employee’s claims for short- and long-term disability benefits were false and it used flimsy evidence to deny her claim. The hospital removed itself entirely from the evaluation process, but it should have been more involved in its employee’s circumstances, the arbitrator said. By not acting at all, it accepted the consultant’s unfair treatment and was responsible for the emotional and financial difficulties the employee suffered from and failed to live up to its duty to accommodate the employee.

Having an expert outside entity provide things like health benefits, pension plans and attendance management for employees can be beneficial to both employers and employees. However, employers shouldn’t forget their ultimate responsibility to the treatment of employees and the management of the employer-employee relationship. This means input into the decisions by outside providers that affect their employees, ensuring those providers don’t have free rein to make unilateral decisions that might affect aspects of employment.

How much co-operation and co-ordination should there be between employers and their benefits and insurance provider? Usually, employers recruit outside companies to handle these areas because they know what they’re doing, but should employers be responsible if a provider’s denial of an employee’s claim leads to hardship for the employee? How much should an employer be expected to know about the business of its benefits providers?

What do you think? Join the conversation by adding a comment.

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a newsletter that looks at employment law from a business perspective. For more information, visit www.employmentlawtoday.com.

Employers could get bloodied in battle against workplace violence

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

Violence in the workplace has been in the spotlight lately, with the Ontario government passing new legislation and Manitoba looking at some tough measures that crack down on harassment and violence at work.

While it’s good to see governments going after things that endanger workers and workplaces, some of the measures could be cause for concern for employers, who will be have to follow some strict rules or face sanctions.

On Dec. 9, the Ontario legislature passed Bill 168, the Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace), 2009. It was given royal assent on Dec. 15 and will come into force in June 2010. Some of the most notable items in the new legislation that put some pressure on employers are the stipulations that employers must draw up and post written policies on workplace violence and harassment and assess their workplace for risks of violence at least once per year. Failing to do so could get an employer in trouble, especially if a violent incident takes place.

The new law also requires employers to take “all reasonable precautions” to protect a worker if it becomes aware of a domestic violence situation that could expose an employee to injury at work. This is new territory for employers.

It raises the question of how far an employer can go in these circumstances. If it knows an employee has an abusive partner, where does its duty to protect the employee begin or end? Obviously, it could take steps to prevent the partner from entering the workplace through security measures. But what about the parking lot? Or just outside company property after work? What about a work-related function off-site, such as a holiday party or company picnic, which the partner attends? There seems to be a danger here of employers perhaps thinking something is out of their jurisdiction but then being found liable for not doing enough.

Another new element of Ontario’s legislation that has raised some eyebrows is the requirement to disclose information about a person with a history of violent behaviour to employees who work with that person. This requirement includes personal information if it’s “reasonably necessary” to protect employees from harm.

There will have to be a balance between the privacy of the person with past violence and the protection of employees. If a new hire had a conviction for assault in the distant past and the employer tells his co-workers about it, could it lead to a privacy complaint? If it doesn’t reveal this information, it would violate the law. Should the time frame be relevant? What about the seriousness of the past violent behaviour?

It also seems employers will be expected to know about a person’s past behaviour and whether there is any violence. A criminal records check would reveal convictions, but may not cover all of it. What if an employer is aware of past violent behaviour through unofficial reports or word-of-mouth? Is this sufficient information to warrant telling a person’s co-workers about it and thus invading his privacy?

With this new legislation in effect, Ontario employers will be facing more onerous responsibilities on preventing workplace violence. And it looks like Manitoba employers could be under the same microscope, as a private member’s bill has been introduced there that features similar tough requirements for employers.

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a biweekly newsletter published by Thomson Reuters that looks at employment law from a business perspective. For more information, visit www.employmentlawtoday.com.

What do you think of workplace violence legislation and the obligations it puts on employers? Join the conversation by adding a comment.