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Labour & employment law column by Robert Smithson

Technology's Impact on the Employment Relationship

A waitress in North Carolina recently found herself looking for work after posting a complaint about customers on her Facebook page. This is just the latest example of the increasing impact of technology on the employment relationship.
 
According to published reports, Ashley Johnson was a waitress at Brixx Pizza in Charlotte, North Carolina. Apparently she received only a $5 tip from a couple who sat at a table for three hours (and kept her at work for an hour past the end of her shift).
 
Ms. Johnson felt slighted by the couple and complained about them on her Facebook page. She labeled the customers “cheap” and also identified her employer’s restaurant by name.
 
She was fired from her job a couple of days later for violating a company policy (banning employees from speaking disparagingly about customers) and for publicly casting the restaurant in a bad light.
 

Suing Former Employees

Just about any employment lawyer will tell employers that, in most cases, it’s really not worth suing former employees. Generally speaking, the costs of recovering debts for minor theft, repayment of unearned relocation and training allowances, etc. will outweigh what the employer could hope to recover.
 
That isn’t always the case. Now and then an employer with a really large bone to pick chases down a former employee via the courts. One such case recently played out in B.C.’s Supreme Court.
 
McNeil was hired by Procon Mining and Tunnelling Ltd. in the 1990s to manage their equipment division. His terms of employment included an option to purchase a 5% equity interest in the company.
 
Soon after joining the company, McNeil began receiving secret commissions from Procon’s suppliers and clients. These clandestine payments eventually amounted to over $800,000.
 

Journalists' Secret Sources May Not Be So Secret After All

Not all categories of employment are governed solely by cookie-cutter laws such as employment standards statutes. Journalists are an example of a group which, to some degree, operates under a specialized set of laws.
 
Journalists are occasionally in the position of receiving information from sources who do not want their identity revealed. The journalist will provide a promise of confidentiality but the issue is the degree to which the journalist can actually uphold that promise.
 
The Supreme Court of Canada recently had an opportunity to review the extent to which journalists can protect the identity of a confidential source.   The result is one which media organizations will surely condemn.
 

The Godmother of Solidarity

 
The crash of the presidential plane near Smolensk earlier this week claimed the life of Polish President Lech Kaczynski and many of Poland’s highest ranking political and military officials. Also killed in that tragic accident was Anna Walentynowicz, the so-called “godmother” of the Polish Solidarity movement.
 
Back in 1980, Poland existed under the crushing weight of the Soviet communist regime. Working conditions were poor and workers’ rights were essentially non-existent. Basic essentials of life, which we take for granted, were scarce and prices were on the rise while workers wages were curbed.
 

Is Comedy the Sharp End of a Free Society?

A complaint before the B.C. Human Rights Tribunal, involving an allegation of discrimination against a stand-up comic, is attracting much attention and comment. I sense this is one case we’re going to be hearing about for a long time to come.
 
According to the Tribunal, Lorna Pardy filed a human rights complaint against comic Guy Earle and the owner of the Vancouver club (Zesty’s) at which he was performing in 2007. Pardy alleged she and her same-sex partner were “subjected to a tirade of homophobic and sexist comments” by Earle and that, as a result, she experienced harassment.
 
Earle denied that he discriminated against Pardy (while admitting his interactions with her were heated). He said that Pardy and her companions were “loud, disruptive, and heckled the comics who performed that evening, including him.”
 

No Pint Of Beer At Lunch For You!

According a recent article by Randy Shore, published in the Vancouver Sun, the Insurance Corporation of British Columbia (ICBC) has implemented a policy banning consumption of alcohol by employees during the work day. Unfortunately for ICBC, its work day includes a lunch period for which employees are not paid.
 
The employees’ union, the Canadian Office and Professional Employees (COPE), has already voiced its opposition to this policy. COPE’s position is, in effect, that the employer is overreaching by attempting to regulate employees’ conduct during periods for which they are not paid.
 
According to Shore’s article, ICBC’s new policy “specifically prohibits employees from drinking on their lunch hours”. The article quoted an ICBC representative as saying, “We take the position that any amount of alcohol will not improve an employee’s judgment.” 
 
That’s an interesting, and perhaps poorly expressed, perspective. There are many other activities employees engage in which won’t improve their judgment - I wonder if ICBC is planning on banning those, too. 

Blacklisting Liars, Losers and Misfits

According to the Globe & Mail, employers and recruiters are assembling a “blacklist” of people considered unfit for hiring. Apparently, if you are a liar, a loser, or a misfit then the chances are good that your name will end up on such a list.
 
Joann Lublin, in her article, “Blacklisted: One mistake can land you on a do-not-hire list” addresses the “unofficial” practice of listing “undesirable applicants”. Unbeknownst to the individual, his or her job prospects are curtailed by the fact of having been labeled as an undesirable.
 
It seems that the practice of accumulating a list of “do-not-hires” is fairly widespread. One recruiter, mentioned in Lublin’s article, claimed that every headhunter and employer he surveyed on the topic admitted to keeping a so-called blacklist.
 
The fact that recruiting firms (a.k.a. headhunters) and human resources departments keep such lists is perhaps not surprising. To some extent, after all, their job is to weed out undesirables or, as Lublin calls them, “liars, losers and misfits”.
 

Here's A Tip For Employers: Look before you leap

In the employment law world, wrongful dismissals eventually come down to a question of money. Looking at how much money a wrongful dismissal might cost in damages, before you leap into firing, is a good strategy for any employer.
 
Understanding the employment context in which the firing took place is a good first step towards estimating the possible damages.
 
Chapple was a restaurant manager employed by Umberto Management Ltd. which operates the Trattoria and Il Caminetto restaurants at Whistler. She had been employed, initially as a food server and later as a manager, between 1994 and 2007.
 
When Chapple’s position was terminated, she sued for wrongful dismissal and was awarded 15 months’ pay in lieu of notice. It was the calculation of the resulting damages which was notable.
 
As a restaurant manager, Chapple earned a base wage and also had two sources of tips. Her gratuities came primarily out of a so-called “house gratuity” and she also received some tips directly from customers.
 

Is Unlimited Vacation A Recipe For Success?

A recent Globe & Mail article told of some companies which have adopted an unlimited vacation policy for certain employees. This strikes me as a short-term trend which won’t have much staying power.
 
It seems the concept of unlimited vacation is part of a Results Only Work Environment (ROWE) model. ROWE originates in a book, by authors Ressler and Thompson, called “Why Work Sucks and How to Fix It”. 
 
The essence of ROWE seems to be that employees are free to do as they like as long as their assigned duties get completed.
 
ROWE apparently hasn’t been embraced on a widespread basis just yet, but at least a couple of companies have gone with the unlimited vacation concept for certain of their employees. Netflix (the U.S. based movie rental company) and IBM have, to a certain degree, freed themselves from allotting and tracking employees’ use of annual vacation.
 

In The Not-For-Profit Setting, Balance Is Key

 
If my practice is any sort of indicator, not-for-profit organizations are a bountiful source of work for employment lawyers. Most often, the problems I encounter involve a broken relationship between the organization’s board of directors and its executive director.
 
Many, if not all, non-profit organizations have paid employees. The most senior manager among them typically has the title of executive director (although some more grand titles – CEO, for example - seem to be fashionable at the moment).
 
The executive director usually has responsibility for fund-raising activities, overall management of the organization’s operations, and hiring, firing, and supervision of other employees. He or she will often be the sole conduit of information to the board of directors and will have day-to-day control over the organization’s finances.
 

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