Canadian Employment Law Today

Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com with Stuart Rudner Ask an Expert RudneR Macdonald ToronTo Canadian HR Reporter, a Thomson Reuters business 2014 2 | September 3, 2014 AnSwER: e use of mobile devices and remote access by em- ployees has resulted in a dramatic increase in the need for up-to-date workplace technol- ogy policies. While it used to be reasonable to update policies ev- ery few years, the cur- rent pace is quite a bit quicker when it comes to technology. Ignoring emerging issues is not an option. e requirements for effective policies con- tinue to change as tech- nology advances and as people use technology in new and different ways. Now, many em- ployers have decided not to provide mobile devices but to adopt a Bring Your own Device (BYOD) policy, permit- ting employees to use their personal devices to access corporate data. is has many benefits, including eliminating hardware costs and reducing support costs, as well as the benefit of employee appreciation of the fact that they can choose any device they want. However, this trend has also introduced new risks and concerns. Employers need to establish clear policies with respect to how company information can be accessed and disseminated, and then use technological safeguards to add protection. For example, employers can block or monitor access and conduct. It is possible to track what employ- ees are doing, such as copying files or email- ing documents to personal email accounts, or doing anything else that might cause con- cern. In short, employers can and should take care of their corporate data. Policies are crit- ical. ey should be clearly written, com- municated to everyone, and consistently enforced. Technology should be used to monitor compliance, identify misconduct and support discipline. You cannot simply open up your corporate information and hope that nothing will go wrong. Employee access of employer information on personal mobile devices Question: How can an employer control or monitor an employee's access of company information on the employee's own device? Limiting job applications to a specific geographic area QuEStion: Can a company limit candidates for a position to a specific geographic area, or is that a form of discrimination? AnSwER: Generally speaking, employers can establish any crite- ria they choose when hiring. Of course, criteria or decisions that relate even partially to a ground protected by human rights legis- lation will contravene that legislation. Limiting candidates based upon geography would not, in and of itself, be a breach of human rights or in any way be against the law. However, geography can indirectly relate to prohibited grounds. For example, certain neighbourhoods will have — or not have — certain ethnic or religious groups living in them. As a result, dis- criminating based on such neighbourhoods could constitute indi- rect discrimination, which is equally unlawful. Employers cannot do indirectly what they are prohibited from doing directly. For ex- ample, we all understand that a policy of not hiring those of Italian descent would be unlawful. However, employers cannot "get away with it" by establishing criteria that would implicitly rule out Italian candidates. Of course, any criteria or decision regarding the desired charac- teristics for a job can be justified where there is a bona fide occupa- tional requirement. If the geographic location can be demonstrated to be such a requirement, then even if there was indirect discrimi- nation, it would not be a breach of human rights legislation. Stuart Rudner is a founding partner of Rudner MacDonald LLP, a Toronto-based employment law firm. He is author of You're Fired: Just Cause for Dismissal in Canada, published by Carswell, a om- son Reuters business (see www.carswell.com for more informa- tion or to order your copy). He can be reached at srudner@rudner macdonald.com. CRedit: SYdA PROdUCtiONS/ShUtteRStOCk.COm

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