Canadian HR Reporter

CANADIAN HR REPORTER MAY 2019 INSIGHT 27 Rules around using a company laptop during an employee's personal time Can personal use outside of regular work hours be used as basis for discipline? Question: Can an employer investigate an employee's use of a company-issued lap- top while on the employee's own time outside of work hours? Can this use be the basis for discipline? Answer: ere are a number of legal issues that must be consid- ered in determining whether an employer may investigate an em- ployee's personal use of a compa- ny-issued device. Before investigating, an em- ployer should consider what con- duct it is entitled to investigate and how to carry out an investi- gation while respecting privacy rights. Employees are often allowed to use company-owned devices for personal purposes. Employees may regularly use email, instant messaging, and social media on their company devices in a way that can blur the distinction be- tween work and personal life. In most cases, an employer can discipline or dismiss an employee for off -duty misconduct that af- fects the employer's legitimate business interests. Such miscon- duct may include activities like inappropriate social media posts, and the bullying and harassment of colleagues. Such conduct may warrant investigation and possibly disci- pline, but an employer's capacity to investigate is not without limit. An appropriate balance must be struck between the employer's interest in managing its busi- ness and the employee's right to privacy. Provincial and federal privacy legislation sets out rights and obligations that protect individu- als' personal information in a va- riety of contexts, including the workplace. While privacy laws are similar across Canada, employers should check the applicable legisla- tion before investigating an em- ployee's use of company-issued technology. Under privacy laws, employees are entitled to know how their personal information is being col- lected, used and disclosed by the employer, and for what purposes. As a result, an employer's ability to investigate an employee's use of a company-issued device will often depend on the content of its workplace privacy policy, and whether that content has been adequately communicated to the employee. If an employer wants the abil- ity to investigate employee use of company-issued devices, it should reserve the right to do so in its pri- vacy policy. e employer must also con- sider the necessity and scope of the investigation. A recent Order of the Offi ce of the Information & Privacy Commissioner of British Columbia, OrderF07-18: Uni- versity of British Columbia, ad- dressed both these issues. It provided that the employer should first raise its concerns with the employee before resort- ing to an invasive investigation, and must use the least intrusive method available to obtain only information that is relevant to the suspected misconduct. Obtaining excess personal in- formation — in that case, personal banking information — was found to be a violation of the employee's privacy. A related consideration is the issue of admissibility of evidence in a discharge or discipline pro- ceeding. Although there is some variation in how adjudicators in different forums approach this analysis, in general, assessing ad- missibility involves balancing the employer's legitimate business needs against the employee's pri- vacy interests. The leading arbitral author- ity, Doman Forest Products Ltd. v. International Doman Forest Products Ltd. v. I.W.A., Local 1-357, provides that the employ- er must demonstrate the investi- gation was necessary, conducted in a reasonable manner, and there were no alternative methods available to obtain the evidence sought. If an employer wishes to use its investigatory material as a basis for discipline, this test must be met. Colin G. M. Gibson is a partner at Harris & Company in Vancouver. He can be reached at (604) 891-2212 or cgibson@harrisco.com. Colin Gibson TOUGHEST HR QUESTION HR is an unfortunate afterthought when it comes to the tech industry Would you hire a junior marketer to be CMO, or a CA graduate to be CFO? It's not 100 per cent true that all growing tech companies view HR as an afterthought, but there's defi nitely a high percentage. Where's the research to support this? I don't need it. I am the research and I have the experience as an HR leader in the space. A typical conversation Let's start with a typical scenario I've encountered countless times when I've met with tech compa- nies in Toronto. Most leaders say they have an "amazing workplace culture" and they're running like a well-oiled machine. Being the inquisitive type, I ask questions. I compliment them on their great culture and ask them how they achieved this. Many respond by immediately talking about their physical offi ce space, the perks they off er em- ployees and the various playbooks they've designed and implement- ed. You know what I'm talking about — open-concept office space with exposed beams and floor-to-ceiling windows, beer Fridays, catered lunches, foos- ball tables, on-site yoga and, of course, a "culture playbook" that talks about how awesome they are because, well, they kick ass. It's all about the superfi cial stuff . As I sit in their space, I nod my head in agreement: "Yeah, you do have a great offi ce environment and I love the constant employee chatter coming from the middle of the offi ce, and the hooting and hollering from the game of foos- ball, and the smell of the lunch being rolled into the kitchen area." It's the kind of place where you'd love to spend all your time. I then kick into the important part of the conversation: "So, can you tell me what your key drivers of employee engagement are?" Si- lence. "How do you develop cur- rent and future leaders?" Silence. "How do you ensure remote em- ployees around the world are con- nected and have the most eff ec- tive collaboration and productiv- ity tools?" Silence. "Do you know what your ideal employee experi- ence looks and feels like?" Silence. "Given that you want to grow 500 per cent in the next 12 months, how are you planning to attract and recruit the right peo- ple?" Silence. "Do you know what drives your employee turnover?" Silence. "What are your top sourc- es of hire?" Silence. "Is your career site optimized?" Silence. "Are you leveraging the right online tools to promote your employer brand?" Silence. Building your team I then get into a conversation about how they plan to build their HR team. ey often talk about fi nding someone newer in her career who has experience in the tech industry. ey want someone who visually represents their workforce — younger, ener- getic, willing to spend all her time physically at the offi ce, who can be that culture catalyst. ey want to go lean and use software and the expertise of the leadership group to scale the HR function. It's funny because I wonder: Who will help this young and en- ergetic HR practitioner grow into an HR leader? Will it just happen organically? Will the CEO, COO or CFO coach and mentor this person? How in the world does it make sense to have people who have no clue about HR mentoring the "up-and-coming" HR rockstar? Another perspective is the company wants someone to be a true HR leader who has experi- ence scaling a company from 75 to more than 1,000 employees in a hyper-growth environment. Um, OK. In Canada, how many tech companies have grown rapidly beyond 1,000 employees? Let's see: Hootsuite, Shopify, Point- ClickCare, Wattpad and maybe a few more. Good luck fi nding that needle in the haystack. It baffl es me that many tech organizations view HR as an af- terthought. Would they hire a ju- nior marketer to be their CMO? Would you recruit a software developer who fi nished school in 2016 to be your CTO? What about fi nance? Let's just fi nd a recent chartered accoun- tant grad and slap the CFO title on him. Of course, you wouldn't, and most growing tech companies don't cheap out when it comes to these functional areas. So why HR? It's a huge — I repeat, huge — risk to not have someone at the HR leadership role, particularly in a rapidly growing company, who knows what she's doing. Creating an HR organization in a tech company is highly com- plex because people are complex. Until the day comes when we can employ robots in every position, we will have to deal with the com- plexities that come with employ- ing humans. ere's no sugar-coating this, and you need an HR leader who understands the intricacies of hu- man behaviour, and the psycho- logical aspects of diverse people and their infl uence on business outcomes. Don't think for one second that you can simply "do it" if you are not an HR leader. Reading about a concept and learning about it is one thing, but doing it — that's a completely diff erent thing. At the end of the day, growing tech companies need to invest as much in HR as they do other functions. If you're looking for an HR leader, then hire one. It needs to be someone who has a deep understanding of every single functional area within the broad spectrum of HR, from talent at- traction to engagement to reten- tion — all of it. It's someone who can sit with the senior leadership team and help the business fl ourish, and then roll up his sleeves and get shit done. It's someone who can men- tor and coach a team. It's someone who can build and deliver an HR strategy that connects people to systems to business outcomes. It's someone who understands the employment legislative land- scape. e job requires experi- ence, and you can't underestimate the value of experience in tech. Your investments, venture capital investments, talented employees and customers all deserve this — and no less. Jeff Waldman is an HR leader and founder of IBelong.work and SocialHR Camp in Toronto. He can be reached at jeff@ibelong.work and www.jeff waldman.ca. It's not 100 per cent true that all growing tech companies view HR as an afterthought, but there's defi nitely a high percentage. Where's the research to support this? I don't need it. I am the research and I have the experience as an HR leader in Jeff Waldman TOUGHEST HR QUESTION The HR job requires experience, and you can't underestimate the value of experience in the tech industry.

• Cover