Canadian HR Reporter

September 8, 2014

Canadian HR Reporter is the national journal of human resource management. It features the latest workplace news, HR best practices, employment law commentary and tools and tips for employers to get the most out of their workforce.

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Canadian HR RepoRteR September 8, 2014 INsIGHT 27 Would you keep working if you were lucky enough to win the lottery? Majority of people derive sense of purpose from employment: Survey Many people have fantasies about winning the jackpot and promptly quitting their jobs to embrace a new life of leisure. It's an interesting scenario to contemplate. But the truth is peo- ple may not be as eager to give up their day jobs as you might think. CareerBuilder recently con- ducted a poll of 3,372 workers in the United States, asking them whether they would keep work- ing if they won the lottery. One-half of the respondents (51 per cent) said they would still work after winning the lottery, even if they didn't need a job fi- nancially. Further, 30 per cent said they would keep their current job. Not surprisingly, the results highlighted that the value of working isn't just about earning a paycheque. e most common reasons given for remaining em- ployed after winning included: • "I would be bored if I didn't work" (77 per cent) •"Work gives me a sense of pur- pose and accomplishment" (76 per cent) • "I want financial security aside from financial winnings" (42 per cent) • "I would miss co-workers" (23 per cent). On the flip side, nearly one-half (49 per cent) of the respondents indicated they'd stop working if they won a lottery. When asked how they would quit their job, the most common responses were: • Give two weeks' notice or give my employer more time if they needed it to find a replacement (48 per cent). • Give two weeks' notice and leave after two weeks (31 per cent). • Resign that day without giving notice (13 per cent). • Tell off the boss and air all griev- ances (three per cent). • Not show up for work the next morning without formally quit- ting (two per cent). Although 30 per cent of sur- vey respondents said they'd stay in their current job, that doesn't mean they already have their dream job. Only 15 per cent indi- cated they are currently working in their dream job, and another 36 per cent reported that while they're not quite there yet, they believe they will be someday. Surveys that offer insights into the minds of employees almost always reinforce that while pay is important, it's only one facet of a positive and engaging em- ployer-employee relationship. It's a worthy aspiration to be the type of employer that employees wouldn't want to leave, even if they won a lottery. So what does it take to deliver a great place to work? e Career- Builder survey highlights some key themes — including interest- ing and challenging work, a sense of purpose and accomplishment and good colleagues. So before your office pool wins the big one, you may want to ask a few pivotal questions about your organization's employment proposition: • To what extent are employees engaged or stimulated by their work? To what extent do they have opportunities to solve prob- lems, contribute to decisions or implement change? • Does the organization help em- ployees feel a sense of emotional connection to its mission, vision and values? How does the orga- nization help employees to see themselves as part of a bigger community? • To what extent does the orga- nization encourage teamwork and collaboration? Does it lever- age training and technology to encourage cross-functional co- operation and problem-solving? Addressing these consider- ations can help create engaging work environments that inspire people to deliver their very best. But you may still want to toss your toonie into the office lottery pool. Because you never know. Claudine Kapel is principal of Kapel and Associates, a Toronto-based hu- man resources and communications consulting firm specializing in the de- sign and implementation of compen- sation and total rewards programs. She can be reached at claudine@ Is this thing on? e rules around recording and storing video and audio of meetings Question: Can an employer record (audio or video) perfor- mance evaluation or disciplinary meetings with individual employ- ees? What are the legal obligations of keeping such recordings for a period of time? Answer: It is well-established that an employee does not give up her rights to individual priva- cy when she becomes party to an employment relationship. Even before the enactment of federal and provincial privacy leg- islation, case law had recognized that an employer's management rights in relation to a safe and ef- ficient business operation had to be balanced against employees' rights to be free from unreason- able invasions of their privacy. Various legislation has been adopted in recent years to give statutory sanction to such rights — provincial statutes dealing with provincial personal information protection and those addressing freedom of information and pro- tection; and the federal Personal Information Protection and Elec- tronics Document Act (PIPEDA). Although differing in specific pro- visions, they focus on the concept of reasonableness in defining the scope of an employer's conduct in relation to its employees. e federal act, for instance, states the purpose of the personal information protection provisions is "to establish, in an era in which technology increasingly facilitates the circulation and exchange of information, rules to govern the collection, use and disclosure of personal information in a man- ner that recognizes the right of privacy of individuals with respect to their personal information and the need of organizations to col- lect, use or disclose personal in- formation for purposes that a reasonable person would consider appropriate in the circumstances." Where employer conduct in- volves the recording of employees in a workplace setting, the ques- tion of whether the employer's conduct is reasonable will depend on the specific facts. In the arbitral context, instances of surreptitious recording have typically been met with disapproval, particularly in more recent cases. Overt but non-consensual recording is sometimes treated more favourably but could still breach employees' privacy rights, depending on the circumstances in which it occurs. In either case, an employer might have to justify its intrusion on the employee's privacy. In a number of arbitration cases, em- ployers have been found unable to justify non-consensual record- ings and have been ordered to cease the practices or have been prevented from submitting the recordings to support disciplin- ary action. Privacy legislation may autho- rize the collection of personal employee information without consent in some circumstances. For example, the Alberta Per- sonal Information Protection Act allows for the non-consensual collection of a current employee's personal employee information if: it is collected for the sole pur- poses of managing or terminating an employment relationship; it is reasonable to collect the informa- tion for that purpose; and the em- ployer has provided the individual with reasonable notification that the information is going to be collected and why it is being col- lected, before collecting it. is provision also incorporates the concept of reasonableness. Em- ployees engaged in discussions of performance or disciplinary issues may not have the same reasonable expectations of privacy as those going about their work or engaged in off-duty activities. However, both performance evaluations and disciplinary interviews typically involve matters of a highly per- sonal nature where respect for an employee's dignity would be an is- sue that could be raised to question the reasonableness of surreptitious or non-consensual recording. Privacy legislation may also rec- ognize circumstances where con- sent is not possible or practical. PIPEDA, for example, allows for the collection of personal informa- tion without knowledge or con- sent if "it is reasonable to expect that the collection with the knowl- edge or consent of the individual would compromise the availability or the accuracy of the information and the collection is reasonable for purposes related to investigating a breach of an agreement." e only way an employer could feel assured its collection of an employee's personal information would not offend his statutory right to privacy would be to reveal its intention to record the interac- tion, to reveal the purpose for the recording and how it will be used, to actually record the interaction only if the employee consents (in writing) and to comply with all of the safeguards, access, retention and disposal processes required under the applicable personal in- formation protection legislation. Any contractual obligations relating to the conduct of evalu- ations or disciplinary interviews would obviously have to be met as well. In the unionized context, it is certainly possible that recording could be challenged on the facts, despite its compliance with infor- mation privacy legislation. As to the length of time an audio or video recording should be kept, that too would be dependent on the facts and the precise terms of any governing legislation or collec- tive or other employment agree- ment. e retention of employee evaluations as part of an employ- ee's employment record might be reasonable in some cases for the duration of the employment with- out regard to the particular media in which they were recorded. In other cases, the period of allowable retention might be dic- tated by the terms of employment. For example, if the recording took place in a unionized environment and could be considered disci- plinary, the collective agreement might require its removal from the employee's personnel file after a certain period of time. e question of whether the re- cording of evaluations or disciplin- ary interviews might be permissi- ble under the common law, arbitral jurisprudence or governing legisla- tion does not address the question of whether it is advisable. While it is true a recording pro- vides the best evidence of what was said at such an interaction, the obvious presence of video and audio recording devices tends to put a chill on interactions and may actually prevent candid discus- sion. In addition, a recording may reveal flaws in the employer's own procedures or investigations. It is also possible an employer's use of audio and video technology in this manner may impel employ- ees to feel justified in doing the same. Smartphone technology is in the hands of almost every em- ployee these days and there are more and more cases in which that technology has been used to re- cord instances of alleged employer discrimination, harassment, safety infractions and the like. Many employers are wisely considering policies specifically addressing such conduct. ey would be hard-pressed to justify such policies in the face of their own recording of employee-em- ployer interactions. Tim Mitchell is a partner at Norton Rose Fulbright in Calgary. He can be reached at (403) 267-8225 or tim. Tim Mitchell toughest HR Question Claudine Kapel Guest Commentary While it is true a recording provides the best evidence, the obvious presence of recording devices tends to put a chill on interactions.

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