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Author Archive for Mike MacLellan

Keep Your Stick On The Ice

Ladies and Gentlemen we are in the midst of one of the wildest NHL postseasons ever!  Intensity is at an all-time high!  So is scoring, so are penalties, so are suspensions, so are injuries, so is controversy…  In the first round playoff series between the Philadelphia Flyers and the Pittsburgh Penguins, a series eventually won by the 2012 version of the Broad Street Bullies, the two teams tallied a record 45 goals in the first four games alone.

Analysts and insiders posited that the explosion of scoring was due in part to the reckless style of play by both teams.  For example, a Pittsburgh player in his own zone would line up an opponent for a big hit against the boards, hoping to make a big impact and send a big message. He would do so at the expense of fundamentally-sound defence, and therefore give up scoring chances.  Both teams strayed from the fundamentals of playing hockey, and I can’t tell you how many penalty minutes the teams amassed in this series, because my calculator only has so many digits…  In short, they did not keep their sticks on the ice.

When someone tells you to “keep your stick on the ice” they are using an expression with two meanings: 1) remain alert and vigilant; 2) calm down and stick to the basics.

In workplace management, as in hockey, as in life, it is often wise to keep your stick on the ice.

You may have heard recently that a certain Police Service got itself into some hot water and bad press for requiring a job applicant to disclose their Facebook username and password during the recruitment process.  In response, the Ontario Human Rights Commission has published an opinion that “Employers should not ask job applicants for access to information stored on social media or other online sites and that doing so could leave an employer open to a claim of discrimination under the Code.”  A prominent and well-respected professor from York University in Toronto has publicly stated his opinion that by requiring a job applicant’s login information, and accessing their Facebook page, a prospective employer could collect information disclosing an applicant’s traits and characteristics protected by the Ontario Human Rights Code, and in the face of a complaint, would have the burden to prove that the decision not to hire was in no part based on the protected grounds of the applicant.  Of course, the Commission’s stance is an opinion, and is not conclusive or necessarily binding on the Human Rights Tribunal of Ontario.

To say the least, this is a contentious legal issue of which even the lawyers in our firm have differing points of view.  I can only speak for myself, but I understand the Commission’s opinion to state that potentially running afoul of the Code would not be due to requiring the username and password of an applicant per se, but rather actually snooping a Facebook page using the login information.  Does that mean looking at a job applicant’s open Facebook profile disclosing their religious affiliation, disability, family status, and age also violates the Code if an employer cannot establish that they did not rely on such information to reject an applicant?  I think that taken to its logical conclusion, the Human Rights Commission would seem to say, yes.  So too then would engaging in a discussion with an acquaintance of the applicant who says “my wife is good friends with Bob’s partner Jim.” Or “Bob was going to enter the NHL draft but then he permanently injured his back.”  Does an employer violate Ontario’s Human Rights Code simply by stumbling upon information regarding a protected ground in this manner?  Is an employer burdened with the onus of disproving a claim of discrimination under the Human Rights Code any time they become innocently informed of an applicant’s protected characteristic?  I think not, and as a lawyer, I would be interested to see the Facebook login issue argued in front of the Human Rights Tribunal.

But I highly doubt that the issue will reach that point.  Why?  Because employers should know to keep their sticks on the ice!  For most employers, requiring an applicant to disclose their Facebook login information so you can snoop them out before (or even after) hiring strays so far from the basic principles of safe hiring practices, that it is the human resources equivalent of lining up your opponent for a big hit in your own zone, at the expense of fundamental defence.  It’s a battle you could potentially win, but weigh the potential benefits against the potential costs and you’ll see it’s just a bad idea.  High risk, low reward.

Keep your stick on the ice!

If I’m right and requiring a job applicant to disclose their username and password is not, strictly speaking, a violation of human rights law, it would still likely constitute a breach of privacy law that could result in a complaint to the federal or provincial Privacy Commissioner, or at least make the employer seem intrusive and overbearing.  There are other, less risky means by which an employer can keep its stick on the ice and still achieve the same goal of ensuring they are hiring an acceptable candidate.

Employers ought to be aware that they can safely comply with Human Rights legislation by carrying out their accessible and fair hiring process, extend an offer of employment to the suitable candidate, and in appropriate circumstances make the offer of employment conditional on such further terms as receipt of references, background checks, or medical clearance for a physically demanding job, etc.

So when your company is hiring, keep your stick on the ice.  Be guided by proper hiring practices, respect your applicants, and when in doubt, talk to your lawyer before taking unnecessary risks.

Workplace Management is NOT a Democracy

You may have noticed some media coverage about this increasingly-frequent little ritual we have in Canada.  Yes, there is an upcoming federal election.  According to popular opinion your political party leaders are all fantastic choices to lead our free democracy (and depending on who you ask, they’re all terrible), but the real beauty is that we Canadians have the right to vote.  In a very real way, Canadians have the collective power to determine the outcome of this federal election and the consequential political direction of the nation.  Embrace this opportunity.  Get out and vote while you have the chance, because this power does not extend to the rest of our lives.

Contemporary Human Resources culture touts the benefits of incorporating employees into the administration of the workplace in order to keep them engaged in the business.  This can include delegation of responsibilities, and involving employees in decision-making processes to make the company more efficient and keep workers motivated.  Without diminishing the inherent benefits of employee engagement, the fact remains that workplace management is NOT a democracy.  It is the employer’s management staff who – even after consultation with their employees – exercises the ultimate authority to hire, fire, set work schedules, monitor the workplace for health and safety purposes, layoff, discipline, and generally determine how the work is to be done.  This is considerable authority to vest in management, but remember the famous words of Uncle Ben Parker: “with great power comes great responsibility.”

Employers are held to increasingly strict legal standards in all areas of workplace management.  For example:

  • Under Ontario’s Employment Standards Act, employers have numerous responsibilities relating to hours of work, overtime, rest periods, termination, severance, and record keeping;
  • The Labour Relations Act mandates that management maintain a “business as usual” approach in the face of a Union organizing campaign, or risk automatic certification to remedy an unfair labour practice complaint;
  • Employers can be held liable under the Human Rights Code for discrimination and harassment in the workplace, even where the offending misconduct is only being perpetrated by fellow employees;
  • Huge monetary fines can be assessed against employers who fail to keep a safe workplace under the Occupational Health and Safety Act, and this includes new workplace violence and harassment obligations introduced via Bill 168;
  • In the near future, employers will have additional responsibilities to ensure an accessible workplace under the anticipated Regulations to the Access for Ontarians with Disabilities Act.

Despite a practical shift to encouraging employees to participate in business administration as a means to keep them engaged in the company, ultimately it is the employer who has the legal responsibility to remain ever-vigilant and exercise their authority in all aspects of employment.  It may seem that workplace management is more like a monarchy than a democracy, and if that’s the case then heavy is the head that wears the crown.


An Invitation to Re-Think Mental Illness in the Workplace

It should come as no surprise to anyone reading this article that employers in Canada have a duty to accommodate employees with disabilities. It likely is also not surprising that a mental disability has to be accommodated just as readily as a physical disability.  What might be surprising to employers and HR professionals however, is the prevalence of mental disability in Canada.   According to the Canadian Mental Health Association, one in five Canadians will be personally affected by mental illness at some point in their life.

If that statistic made you say to yourself “there’s no way one in every five people I know is CRAZY!”, I would make two alternative suggestions to you:

  1. Organizations dedicated to mental health in Canada have spent countless dollars and hours of research to publish misleading or incorrect statistics; OR
  2. It is time to re-think mental illness.

Let’s assume that the statistic is legitimate, at least for the time being.  How can the common conception of mental health benefit from a paradigm shift, especially in employment?

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