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Labour & employment law column by Robert Smithson

PROTECTING PRIVACY DURING HIRING

B.C.’s Personal Information Protection Act compels employers to protect the privacy of employees. The hiring process is one period when the employer’s collection, use, and disclosure of employees’ personal information is most prevalent.
 
Fortunately, B.C.’s Privacy Commissioner has published a series of guidelines for employers to follow during the hiring process. This is a good thing for employers, because B.C.’s Act can be indecipherable.
 
The guidelines first address the question of what to do with unsolicited resumes. The simplest solution is to dispose of them. The Privacy Commissioner recommends taking reasonable care when disposing of resumes, preferably shredding paper copies and deleting electronic copies.
 
If employers keep unsolicited resumes on file, the personal protection requirements contained in the Act are triggered. The employer must protect the personal information contained in the resume. It would also have to respond to the individual’s enquiries about how his or her information has been used, stored, and disclosed.

EMPLOYERS MAY NOT RAISE A CHEER FOR FAMILY DAY

The third Monday of every February will be celebrated as a statutory holiday in B.C. – dubbed “Family Day” – commencing in 2013.  This announcement was made by B.C.’s government, under new Premier Christy Clark, by way of the recent Speech from the Throne.

The growing trend across Canada has been to find a reason for a statutory holiday in the coldest winter month and, in a sense, it’s difficult to find fault with that thinking.  Several other provinces have already added a February paid holiday and it seems likely the others will get on the bandwagon at some point.

PENDULUM SWINGS IN EMPLOYEES’ FAVOUR AGAIN

One of the areas of employment law which remains least predictable is the enforceability of post-employment restrictive covenants.  A recent decision of the Alberta Court of Appeal represents another pendulum swing in favour of employees’ interests.

The element in question is whether a restrictive covenant can be enforceable after the employee has been wrongfully dismissed by the employer.  This question attracts periodic attention and my thinking is that even most employment lawyers and judges aren’t certain of the answer.

AGING AIR CANADA PILOTS STILL GROUNDED

The saga of Air Canada pilots affected by that airline’s mandatory retirement policy achieved another milestone, recently.  The result, for the moment, is that the mandatory retirement of that airline’s pilots, at age 60, has been upheld.

I first reviewed this case, over 4 years ago, as it began its snakes-and-ladders-like ride through the federal human rights process.  In 2007, all the news in the human resources sector was about the spreading abolition of mandatory retirement across this country.

HOW LONG HAVE YOU WORKED HERE?

Our common law of wrongful dismissal establishes most employees’ entitlement to notice of termination (or pay in lieu) based, primarily, on the employee’s tenure.  What some employers don’t know is that a court may regard that tenure as continuous despite breaks in service.

WORKPLACE INVESTIGATIONS DONE THE RIGHT WAY

One of the tasks for which many managers are unprepared is the workplace investigation.  The guidelines for performing this function effectively are straightforward enough but aren’t necessarily always obvious.

The need for a workplace investigation can arise out of a wide range of circumstances.  Most often, I’d say, the need is triggered by a complaint by one employee against another of some kind of harassment or by the employer’s perception that an employee has engaged in misconduct.

THEY’RE GONNA NEED A BIGGER BOAT

A few weeks ago, I happened to read a story about a class action lawsuit against Scotiabank and the classic movie, “Jaws”, on the same day. I couldn’t help thinking there were some parallels between these stories.

In “Jaws”, actor Roy Scheider played Chief Brody, a New York cop transplanted to Amity Island. Brody faced an unanticipated crisis in that fictional vacation spot on the fourth of July when a rogue shark began feasting on unsuspecting swimmers.

MARKING THE PASSING OF A GIANT

Saturday morning I was shocked to learn, upon opening the newspaper, of the death of man who was a giant to all who knew him. And it wasn’t Jack Layton.

You won’t find anything about employment law or labour relations or lawsuits or the courts in this column. Just some thoughts about a guy who took his most important jobs – dad and husband – seriously and who should be celebrated for his accomplishments.

LESS IS MORE WHEN IMPOSING COVENANTS

I’ve written many times on the topic of the unpredictable impact of covenants restricting employees’ post-employment activities. What is certain about such covenants is the value of adhering to the “less is more” rule.

Generally speaking, in the employment context, post-employment restrictions on an individual’s conduct are presumed to be unenforceable. That is the result of the fact that free labour mobility is a matter of public policy.

AN AUGUST WEEK LINKED TO PAST AND FUTURE

This past week marked the anniversaries of two important historical events. One was, I would say, entirely backward looking and the other provided a glimpse into the future.

On August 13, 1961 Berlin was divided by the commencement of construction of the Berlin Wall. It’s been 50 years since that day but, for all the changes that have since taken place across Europe, it might as well have been 500 years ago.

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