Archive for May, 2010

Is strict, unpleasant management style a human rights violation?

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

Many employers like to run a tight ship. Professionalism is important to success as a business and employers have policies with varying degrees of strictness with regards to things like dress codes, workplace conduct and computer use. There are also different types of management styles that run the gamut from the relaxed manager who tries to be a friend to employees to the taskmaster who expects high results and doesn’t tolerate any goofing off.

But where is the line between running a tight ship and harassment? How stern and restrictive can a manager be before it becomes bullying? Can employees file a human rights complaint because of a strict manager and would they have a shot at winning?

This type of situation came to light recently when some former employees of the Ontario ombudsman’s office — and one current employee — complained to the province’s human rights tribunal of discrimination stemming from the strict office rules imposed by ombudsman Andre Marin and his managers.

The complaints relate to criticism of the employees by management and performance management programs they were placed on, which opened the door to further criticism. The employees say this treatment had psychological effects on them and one went on stress leave and another resigned. They claimed the performance management programs were discriminatory because they seemed to target people who were visible minorities who were older or overweight.

Marin denied the accusations and told the Toronto Star he was hired to whip the office of the ombudsman into shape, as the government felt it was ineffective and was considering getting rid of it. His strict demands were intended to improve performance and efficiency and didn’t target anyone, he said.

There are many instances of workplaces where employees feel their bosses are too strict and demanding, and stress is a common part of work. But if an employee feels she’s being treated poorly and is stressed, is that a violation of her human rights? It’s a tricky area, because in a situation like that with the Ontario ombudsman, unless there’s clear discrimination under grounds protected under human rights legislation, entertaining claims from disgruntled employees that arise out of workplace stress or strict management styles could open the door to a flood of complaints that will clog the human rights system and cause headaches for employers.

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

EI double-dipping or true intent of benefits?

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

In Canada, we pride ourselves on giving new parents a generous amount of time off work with some income through maternity and parental benefits through the employment insurance (EI) program.

Added up, benefits total nearly a full year during which one of the parents can stay home and look after the baby while receiving a portion of their normal salary. Some employers even top up the amount so the parent on leave receives her full salary for a period of time. But what happens when the parental benefits run out and the employee is unable to return to work?

This happened to Natalya Rougas, a 37-year-old Toronto woman. Last week, the Toronto  Star reported Rougas was expected to return to work in January 2010 after giving birth to her son in January 2009. However, shortly before her return-to-work date, she was diagnosed with breast cancer and began chemotherapy treatment.

Normally, an employee who has to undergo treatment for a medical condition that prevents her from being able to work would be eligible for EI sickness benefits, up to a maximum of 15 weeks. However, Rougas’ claim for sickness benefits was rejected because, according to her letter from Human Resources and Skills Development Canada, she would not have otherwise been working had she not fallen ill. However, the reason she wasn’t working was because she was still on parental leave.

Is this a misinterpretation of EI legislation, or just an unfair provision? If a mother gets sick and needs to take medical leave before she goes on maternity leave, she is eligible to have the 15 weeks of sickness benefits and then her full maternity and parental leave benefits. Does it make sense to deny sickness benefits when the reason she isn’t working is an already-approved parental leave?

Should she be considered employed if she has a planned return-to-work date in the near future, as Rougas did? Or should EI claims evaluators stick to a strict interpretation to help save money for a system that is becoming taxed to the limit and will result in increased EI premiums in the next few years?

There seems to be some inconsistency with the intended purpose of EI benefits and the way they are being administered in this case, leaving a new mother unemployed and with no income while facing rising medical expenses. Should already existing benefits prevent someone from getting further benefits added on when the new claim — in this case sickness benefits —  is different from the existing benefits?

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

Empty stadium means no work for employees

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

By now, most baseball fans in Canada, or at least those who follow the Toronto Blue Jays, are aware a three-game series the team had scheduled to play in its home stadium, the Rogers Centre, against the Philadelphia Phillies at the end of June has been moved to Philadelphia.

A summit of leaders from the G20 countries is taking place in Toronto that weekend and the Rogers Centre lies within a security zone for the summit. The logistics of having thousands of people going through the zone became too onerous, so the decision was made to move the games. Many have complained this move is unfair to fans, but what about employees of the stadium and the team who work at games? Are these employees entitled to some sort of compensation?

The three games, which will be played from June 25 to 27, will still be considered home games for the Blue Jays, and the Phillies will apparently split the gate revenues with the Jays. However, Toronto effectively loses three home games, games during which employees would be manning souvenir booths, selling concessions, cleaning washrooms, bartending, hosting private boxes and other services normally provided to the crowds that attend sporting events. Now there are three fewer games when these employees would be working.

Because the baseball season runs April to early October, a good number of these employees are seasonal. But they are hired to work the Blue Jays’ home games over the course of the season, the dates of which are set well in advance. In addition, larger crowds were expected for this series because it marked the return of former Blue Jays star pitcher Roy Halladay, who was traded to the Phillies in the off-season. This would likely have meant big business for the stadium and lots of work for employees.

It’s not clear at this point what the Blue Jays or the Rogers Centre intend to do for employees who now won’t be working those games, if anything. Does the removal of these games change the employment contract for team and stadium employees? Are they entitled to compensation for the lost work? Even if they are employed on a shift-by-shift, game-by-game basis, was there an expectation they would be working on June 25 to 27 because it was in a set schedule, which was changed less than seven weeks before the games? Is the team and stadium responsible for finding other work, or at least should it be?

A lot can depend what is in the individual contracts for each employee, but if there isn’t anything specific that addresses this situation, it could be interesting to watch — even if there aren’t any games at the ballpark.

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

Spying on the sick: Is video surveillance of workers worth it?

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

It’s not uncommon for people to take sick days from work when they’re not really sick. Sometimes the reasons can be just as legitimate as physical illness — like needing a mental break — and sometimes the employee might be just trying to get an extra day off.

Either way, though employers may not necessarily be in favour of this practice, many often look the other way. But if this type of behaviour happens too often, excessive absenteeism can negatively affect a business, especially if the occasional sick day develops into a long-term sick leave.

Many employers develop attendance management programs that monitor sick days and other absences. If an employer become suspicious someone is abusing medical leave, it  might resort to outside monitoring of the employee to see if she really is sick or injured. But to what extent can this type of surveillance be relied upon? Should employers be allowed to do this at all?

An Ontario employee was recently awarded big-time damages — more than $500,000 — after her employer accused her of abusing her sick leave and fired her. The worker had a knee operation and her doctor recommended a four-week recovery period. Less than three weeks after the operation, the employer caught her on videotape seemingly doing things beyond what her medical restrictions were and looking like her knee was fine enough to work. The employer didn’t believe her claims she was often on painkillers, and conditions at home were different than at work, and fired her for dishonesty.

A good chunk of the damages were awarded for the employer’s treatment of the worker and its ignoring of medical opinions on her fitness for work. But part of the issue included its reliance on the videotapes and the fact it was monitoring her at all — in this case, it was a long-time worker with a solid record. The arbitrator accepted the videos as pertinent to the employer’s concerns, but found the employer should not have relied on them over medical opinions. But if the employer had notes from the worker’s doctors, why did it need to keep an eye on her at all?

Though the arbitrator accepted the tapes, should the employer have bothered with them? In this case, it wasn’t even monitoring her at first — she happened to be in a relationship with another employee who was under surveillance and when the videotapes caught her the employer continued its surveillance of her. As it turned out, many of the activities the worker was filmed doing were consistent with her physiotherapy and the use of painkillers. And the employer had medical notes saying she should be off work for four weeks.

Covert surveillance of employees outside the workplace to see if they’re abusing their sick leave can raise privacy concerns but in many cases they’ve been accepted as valid. But how much do they really reveal about an employee’s condition? Obviously, if an employee had a serious injury that supposedly keeps her almost immobile and she’s spotted playing sports, it would be more cut-and-dry.  But less obvious injuries or surgery recovery might not necessarily be obvious to surveillance. And if the employer has a note from a medical professional, it may not matter what it sees on videotape. In many cases, video surveillance of employees to prove sick leave fraud just might not be worth it.

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

How deep to dig? Background checks are sensitive business

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

It’s important for employers to have an idea of the background of a job applicant to help them decide if the person is the right one for the job. Every job has its own requirements and employers can try to find out if someone meets these requirements through references and, in some cases, background checks. But how far can these background checks go?

Performing criminal records checks on prospective employees is fairly common and some employers are performing credit checks as well. However, they need to be very careful about what kind of information they are digging up as they could be walking a fine line between legitimate checking and invasion of privacy.

Mark’s Work Wearhouse ran into some trouble in Alberta over credit checks it was performing on applicants for sales associate positions. The retailer wanted to find out the credit history of these individuals because they would have certain financial responsibilities. The company wanted to know if anyone was a risk for fraud or in-store theft.

However, one applicant filed a complaint with Alberta’s privacy commissioner after being subjected to a pre-employment credit check. The commissioner’s office investigated and found the credit check wasn’t reasonably necessary. Though sales associates handled money, the investigator determined the store had enough other measures in place to prevent theft or fraud, such as security cameras and a requirement for managers to complete transactions. Mark’s also had a maximum amount of cash allowed in registers.

So, despite the fact Mark’s believe credit checks were a legitimate way of determining if it could trust someone to handle financial responsibilities, the privacy commissioner said no. A similar restriction can be applied to criminal records checks, as finding out any information that isn’t relevant to the job can be considered a violation of privacy. But they could get some valuable insight into the type of person they’re hiring, especially if it’s a position in which the employer must place a large amount of trust in the employee.

Employers have to ensure any information they find out about an employee is directly related to the job requirement. But how do they know where the line is drawn? In the case of Mark’s Work Wearhouse, the company thought credit checks were a legitimate way to find out if someone was trustworthy enough to be a sales associate. And in some cases it would probably be right if it weren’t for the other security measure it had in place. But how was it to know those measures ruled out credit checks? How much should an employer be allowed to dig?

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


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