Archive for December, 2010

Digging up too much dirt

It can be easy to find background information, but it may not always be useful in determining what type employee someone will be

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

In this digital age of online social networking and blogging, our pasts can stay with us for a long time. Whether it’s digital photos or written words, anything can be posted online and kept there for a long time. The question is, how long should something negative be held against someone?

Tito Ortiz (bottom) blocks against Chuck Liddell in a UFC bout at the MGM Grand Garden Arena in Las Vegas. A fighter who wanted to be a Toronto police officer made news recently, after the force objected to a persona he once had — "Pimp Daddy" — early in his fighting career. (Photo: Tiffany Brown/Las Vegas Sun/Reuters)

Many employers have taken to checking out social networking sites as part of the background check on job applicants. Privacy issues notwithstanding, how much should some of what they might find be weighed? If someone posted pictures or wrote something in a blog several years ago, should the employer assume the individual is the same person or hold the same opinions without asking?

The Toronto Star recently reported on Sean Pierson, a prospective police officer who had a conditional offer of employment in October revoked just days before he was to start as a cadet-in-training. The reason? The Toronto Police Service was concerned about an image Pierson cultivated as a mixed martial arts fighter years ago.

Though the police indicated they were concerned the time commitment needed to be a professional fighter could affect his duties as an officer — Pierson fought in UFC 124, an event put on by the Ultimate Fighting Championship in Montreal on Dec. 11 — the biggest reason for the change of heart was that Pierson once promoted himself under the name “Pimp Daddy.”

Pierson, who is 34 and married, told the Star he was given the persona by a promoter in 1999 and hasn’t used it in a few years, saying he was “just a 23-year-old kid just out to have a good time.” However, years later, Toronto Police felt the name wasn’t appropriate for a police officer and Pierson found himself on the outs with them.

It’s understandable the police would have concerns about an applicant who took on a persona that perhaps glorified a criminal lifestyle. But it was just a promotional thing for his fighting career that was given to him that he cultivated when he was in his early 20s. A decade later, Pierson is married and focused on a career in policing. Should a name used early in his career still be held against him? Could the Toronto Police be losing out on someone who could turn out to be a good police officer because of it?

Researching the background of potential employees can give insight into the type of person and employee they might be and with the availability of information, it may be tempting to find out as much as possible. But a little perspective can help too. Youthful indiscretions are not uncommon, and it’s important to remember uncovering them may not necessarily reflect on who the person is now and what kind of employee she will be.

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

Taking an extra sick day: Helpful or harmful to productivity?

Employees that have used up all their sick days feel compelled to come to work ill — and that’s a recipe for a disengaged workforce

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

When it gets late in the year, there can be a problem if some employees have used up their allotment of sick days. Every jurisdiction in Canada sets a certain number of unpaid days off for illness, but many employers allow a certain number of paid sick days over the course of the year. However, if an employee abuses those days or the absences are hurting the business, what is an employer to do?

According to a Statistics Canada survey a couple of years ago, absences by full-time employees due to personal reasons or illness increased from 7.3 days in 1997 to 9.5 days in 2005. This increasing trend can have negative effects on an employer’s productivity and bottom line. But does putting a hard cap on paid sick days benefit productivity?

While a hard cap on paid sick days may discourage employees from calling in sick if they really aren’t, what if an employee has a particularly bad year for illness and uses up her sick days? This may increase the chance of that employee coming in to work when she’s sick so she doesn’t lose any pay, which could spread sickness in the office and hurt morale as well. In such a case, if an employer insists the employee go home, should it be on the hook for paying the employee or can it be considered unpaid leave since paid sick days have been used up?

Of course, if an employee is off work a lot due to illness, the employer may be faced with a legal obligation to accommodate if the illness becomes a disability. In some cases, this may even be better as it could allow an employer to plan around absences or reduced duties of a disabled employee instead of scrambling to cover absences as they come up.

An employer is generally going to be in good shape when justifying paid sick day limits if it has a clear, written policy outlining the limits. But it should keep in mind there could be cases where some flexibility might be beneficial.

Employees who feel they have to come in to work when sick if they’ve used up their sick days are not going to be happy employees, and unhappy employees are not productive employees. If the employer only gives unpaid sick days, a similar situation is more likely to happen because people don’t like to lose money. It’s good for employers to follow employment standards, but if they stick only to the minimums they could be faced with a disengaged, sicker and less productive workforce.

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.

 

The dark side of holiday fun

Holiday parties need to find the right balance between fun and liability

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

Every year, when the calendar winds down, the thoughts of many turn towards celebration and people’s agendas fill up with holiday parties. This includes workplaces, to a varying extent. Some workplaces have small, low-key departmental lunches while others have large-scale off-site gatherings. If some of these employee celebrations involve alcohol, there are liability risks employers must consider.

A pedestrian passes a display of Christmas lights during a rainy day in downtown Montreal last month. Employers planning holiday parties involving alcohol need to be wary of liability. (Photo: Shaun Best/Reuters)

While it’s fun for co-workers to loosen up a bit and celebrate, when an employer organizes and pays for the festivities, it assumes responsibility. If alcohol is provided, it’s a good idea for the employer to keep its supply under control and provide options for employees to get home or stay somewhere if they have a few too many. Likewise, if the party is outside of the workplace, the employer usually has the same duty to protect employees’ safety as it would in the normal workplace. So the extent to which an employer celebrates the holiday season may come down to a consideration of the risks versus the benefits.

There was a well-known case in Ontario a few years back where a real estate firm, Sutton Group Incentive Realty, threw a holiday party with an open bar. One employee, Linda Hunt, drank too much at the party then got behind the wheel. After driving to a pub where she had a few more drinks, she got into an accident that seriously injured her and some passengers in her car. Hunt successfully sued Sutton Group, which was found partially responsible for the accident because it supplied unlimited booze at its party and failed to provide a way for her to get home safely. This violated its duty to keep its employee, Hunt, safe. This is an example of circumstances where the employer probably wanted to make sure its employees had a good time at its party and was feeling generous, but didn’t make the proper preparations for it.

Even if measures are taken to ensure employees get safely, when the alcohol flows there are other risks. If employees get a little tipsy, inhibitions drop and the risk for inappropriate conduct increases. Last year, the British Columbia Supreme Court upheld a hotel executive’s firing after a 2006 holiday party where the executive got a little too friendly with a subordinate, who had been plied with booze throughout the evening. Ironically, the executive had been placed in charge of alcohol distribution for the event and was supposed to be ensuring its consumption was limited.

However, it seems too many employers are still not giving much consideration to the risks of allowing employees to let loose. I heard a story about a holiday party put on last year by a Canadian company at a cottage it rented. There was an open bar where employees served themselves. Though the company paid for hotel rooms, the hotel was 15 minutes away and the company didn’t provide for transportation and some employees drove.

When planning a work holiday party, a balance has to be struck. I’m sure many people like a lavish gathering with free food and drink to celebrate, but employers always have to keep safety and liability in mind. Is it a better option to go all out and stoke employee morale as high as possible, or rein in expectations and reduce liability with a low-key affair?

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.