Canadian HR Reporter

CANADIAN HR REPORTER March 21, 2016 NEWS 17 EmploymentSource™ Works as hard for you as you do for your clients Our premier employment content on WestlawNext® Canada is integrated with relevant case law, legislation, expert commentary and legal memos, allowing you to manage your practice in the most efficient way possible. It's the complete mix of resources you need to confidently advise on compliance, defend occupational and health and safety charges, or prepare successful dismissal or termination strategies. Search across multiple content types simultaneously Instantly evaluate what a claim is worth with the Wrongful Dismissal Quantum Service, an interactive service with report-building functionality Review exclusive commentary by Canada's foremost employment and occupational health and safety law experts Start ahead − and stay ahead − with our exclusive collection of legal memoranda Keep current with two leading employment and dismissal law newsletters and digests For a free demonstration, call 1-866-609-5811 or visit westlawnextcanada.com/employmentsource 00233WZ-52632 principal at Williams HR Law in Markham, Ont. "It does create productivity challenges and the one thing that is a reality that we're living with these days, particularly younger generations that are coming up, is you can't separate them from their cellphones. I mean, they feel like they're going to expire — I have three teenagers, believe me." With greater accessibility, the devices are more popular than ever — and their usage at work is simpler to conceal compared to a desktop computer, she said. "It's a lot easier to steal the min- utes," said Williams. "It's become very easy to be distracted by cell- phones, and to do so undetected by anybody." Sixty-one per cent of small business owners said employees spend too much time on personal phone calls, emails and texting during work hours, according to a 2015 survey of 8,800 employers by the Canadian Federation of Inde- pendent Business (CFIB). Other drags on productivity include gos- siping (55 per cent), personal web surfing (41 per cent) and excessive lateness (40 per cent). "It's such a double-edge sword," said Monique Moreau, director of national affairs at CFIB in Ottawa. "ese days, many of us are en- couraged to bring our own device to the workplace, so employers are asking employees to use their own cellphones… so that can make things really complicated." But if employees are customer- facing, working at a restaurant or retail environment, for example, they should not be on their phones when helping customers, she said. "at is a completely different ballgame and I think it makes more sense to address that, as seen, on the spot, as quickly as you can." More than three years ago, Liliana Piazza and her husband started managing her father's business, the Ottawa Bagelshop and Deli, and Piazza decided to implement a cellphone ban, ask- ing the roughly 40 employees to put their devices in a locker when they were working, she said. "It was something that just per- sonally really irritated me because I saw it as a very blatant theft of time — I'm not paying my em- ployees to look at their phone." However, the ban was short- lived as they found it challenging to uphold and enforce the pro- hibition, especially if that meant searching people's pockets. "It's something that I watch but it is very hard to have a very cut- and-dry no-cellphone policy," she said, adding if workers are caught spending too much time on their devices, she reprimands them. "I do say, 'If I see that again and there's a lot of people working, then I'm just going to send you home because you obviously don't need to be here if you're not do- ing any work.' And that sort of gets their attention, especially people who have been there a long time — I stress they need to set an ex- ample for newer employees." Positive gains Despite the ban at SunTech, the reaction from employees has been largely positive, according to Mitchell. "ere's more interaction be- tween the employees rather than players on the outside. ey're talking to each other rather than whoever they were talking to... through their index fingers." Productivity gains are also evi- dent, he said. "How many grapes get picked in an hour? When that goes up, it tells me you're picking and not on your phone." ere's also the safety aspect. "(You) get these people paying attention to these (phones) and they will walk over stuff, trip over stuff, get driven into, whatever, because their attention is some- place else," said Mitchell. From a legal standpoint, it may be imperative certain operations or industries have stringent rules around potentially distracting cellphone use, said Williams. "In safety-sensitive environ- ments, you don't want to have employees checking their texts or checking how things are trending while they're performing work that could create hazards if they don't have their full attention on the task." And an employer may be in an industry where employees are dealing with highly sensitive, in- novative work that the organiza- tion doesn't want captured on phones, she said. "ere's the trade secrets aspect of it and the propriety interest that organizations have, but then there's also sometimes unauthor- ized picture-taking that could lead to conduct issues such as harass- ment complaints, so people tak- ing pictures of their colleagues or using images for joking purposes that may be very offensive and unwelcome. So there are a lot of legitimate reasons, even beyond mere productivity." Doing it right When Mitchell brought in the ban, the message was blunt. "One sheet of paper and a Sharpie on the entrance to the greenhouse itself from the ware- house: 'No cellphones,'" he said. But communication is impor- tant, according to Moreau. "Putting a sign up without re- ally having any discussion with employees beforehand about what might be a new policy for them might be a bit extreme and we suggest, of course, they chat with the employee. Usually, it's only one or two, it's not all bad eggs that are causing an issue, so it could be an opportunity for direct contact with that employee first versus just coming into the office one day and not saying anything and just putting up a sign banning cellphones, instead of explaining what the reasoning is behind that," she said. "And if you don't want to address it one-on-one with that person, then say, 'I've noticed more cellphones this week and I'm re- ally encouraging employees to be mindful of when they're working, that they're working, and if they have the need to connect with their phones, that they do that on their breaks or their lunch hour.'" Anytime an employer changes a policy, practice or protocol, it has to make the employee group un- derstand why it's necessary, said Williams. "It's not just the employer trying to make employees' lives misera- ble or trying to create unfulfilling workplaces, it's because there is a business imperative. It could be that productivity has dropped so significantly or that it's impacted the viability of the business and you should have the metrics to share with the employee groups so they understand." Employers should also take into consideration employee needs, said Williams, such as parents with young children or employees with elderly parents who want to be accessible in emergencies. "The whole accommodation aspect of it, that's something that employers should evaluate on a case-by-case basis. But it also de- pends on the operation, the kind of infrastructure," she said. It's a very nuanced area and as technology evolves, employers will be dealing with more ques- tions like this, said Moreau. "A one-size-fits-all approach isn't going to work so it really is up to employers to address what is causing that distraction in the first place and if it is general get- ting too many texts because they have a really active social life or if it's a story of someone who's got a parent who's ill." Bagel shop cancels its cellphone ban CELLPHONE BAN < pg. 1 shorter strikes because of the anti-scab laws, which have been significantly amended over the past few years, said McRobie. e legislation in Quebec now includes only managerial staff as acceptable replacement workers. e laws affect industries dif- ferently, said McRobie. For ex- ample, an airline or railway would have trouble training thousands of replacement workers to per- form specific duties of the job. And Quebec's service indus- try lends itself well to a mobile labour force, so some employers are moving the work out-of-prov- ince, he said. "e bargaining power of union and employer will vary." Provinces could follow e NDP's anti-scab bill opens the way for provincial unions to put pressure on governments and employers, as well as educate their membership on such laws, according to Nesbitt. e impact of anti-scab legisla- tion would be much larger should the remaining provinces follow Quebec, British Columbia and — should it pass — the federal jurisdiction, because most people are employed and operate under provincial labour laws, he said. "It is only affecting federally regulated workplaces so the im- pact will be placing pressure on the provinces," said Nesbitt. "I think it opens up possibilities for organized labour at the provin- cial level to put pressure on gov- ernments. at's the only certain effect." Shorter strikes? NDP < pg. 3

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