Canadian HR Reporter

April 18, 2016

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 April 18, 2016 2 NEWS Recent stories posted on Check the website daily for quick news hits from across Canada and around the world. WEB O N T H E ACROSS CANADA Workplace activity program launched in B.C. before nationwide rollout One-half of residents feel they spend too much time sitting at work Two incidents at Saskatchewan prisons upset union representing guards Says workers facing increased violence B.C. seniors care facility cuts entire staff over reports of chronic underfunding More than 150 receive pink slips Nature of policing makes it ripe for unprofessional behaviour: RCMP commissioner Cites stress, hours, collegial nature One-third of employers in Western Canada forecasting positive employment growth Alberta, Saskatchewan least optimistic: Survey Education minister says teachers no sicker than before they lost right to bank sick days Teachers calling in sick more often, requiring more supply teachers PM says those left out of EI changes should 'be pleased' they're not harder hit Edmonton not among 12 regions picked People with sleep breathing issues more likely to get injured at work Researchers use WorkSafeBC's data on workplace injuries AROUND THE WORLD Women workers exploited in India's high-end shoe industry, say campaigners Earn less than minimum wage, lack legal rights Five players accuse U.S. soccer federation of wage discrimination Women say they were paid nearly 4 times less than male counterparts U.S. private sector adds 200,000 jobs in March: ADP Unemployment rate expected to stay steady at 4.9 per cent Israel passes law to cap bankers' salaries Trying to narrow gap between bosses', workers' pay Chinese firms hiring less, capital expenditure hits 5-year low: Survey Government ratcheting up policy support With crisis plans and cuts, British bosses brace for 'Brexit' Exit from European Union could cause slump for business: Experts Labour law research just got faster, easier and more comprehensive. LabourSource™ on WestlawNext® Canada combines the most robust collection of grievance arbitrations with court and board decisions, expert commentary, legislation and collective bargaining-related content – with Canada's most advanced search engine. A single search delivers the content you're looking for, whether it's case law, legislation, commentary, or legal memos. You can then filter your results to get exactly what you need. With LabourSource, you'll always be confident that your research is complete and that you haven't missed anything. Experience the benefits • Prepare winning grievance arbitrations and labour board applications • Successfully negotiate favourable collective agreements • Stay up to date on the latest labour-related decisions, industrial relations and economic news Legal content that is labour focused, not labour intensive Introducing LabourSource™ on WestlawNext® Canada See the LabourSource advantage View a demo at 00224EP-A47770 Chipotle lawsuit showcases trials of social media policies Yes, employers need a policy… but they should tread carefully BY LIZ BERNIER IT'S probably not the resolution it was hoping for but restaurant giant Chipotle learned the hard way that enforcing a social media policy can be tricky. A former employee who had been terminated for criticizing the company over Twitter won a ma- jor lawsuit in the United States, af- ter an administrative judge ruled Chipotle's social media policy vio- lated federal labour laws. e court ordered that the for- mer employee be reimbursed for lost wages and offered the posi- tion back. e chain must also post signs explaining the social media policies, as well as others, were illegal, according to media reports. It's not a situation that's likely to unfold in Canada since the two legal landscapes are so dissimilar — and the U.S. is much stronger in terms of freedom of expression — but it's important for employers to craft a strong social media policy to navigate the tricky waters of employee behaviour online, said Fred Wynne, employment law- yer at Hamilton, Howell, Bain & Gould in Vancouver. Crafting the policy What employers really want to look at — and this is supported by the legal foundation — is what's the effect on the employer, said Wynne. "Particularly their reputation because this is stuff that's being broadcast out to the whole world," he said. "You want to address those rep- utational-type issues, you want to talk about things like identifying the employer — prohibit that, for example, if that's something you're looking to avoid." On the other hand, sometimes the employer wants people to rep- resent or promote the company online. "The focus there is really in terms of good behaviour and rep- utational conduct. Define what is offside in terms of the way you want people to represent your brand, your business, your com- pany," he said. "Essentially, it's defining the way that you would like your brand or your business or your organization represented. And that way, you firstly communi- cate what your expectations are to the employee and give them guidelines, hopefully, and if they breach those, then you have a stronger position (for discipline), if necessary." Employers have a bunch of dif- ferent policies that sit on the shelf and often they cover an issue that never actually happens, said Daniel Pugen, partner at Torkin Manes in Toronto. ey'll have a detailed conflict– of-interest policy or code of ethics that never really comes into play. "At the same time, they don't have a social media policy, even though every single employee is on social media, most of those employees are using social media at work, they have ready access to it by their smartphones," he said. "Why do you have policies that are probably never going to be used and which impact behaviour that doesn't happen? Why do you have those policies and, on the flip side, you don't have policies that deal with behaviour that happens all the time, while the person is actually at work?" Often, people don't think be- fore they post, said Pugen. "If someone gets frustrated and posts something, it could breach respectful workplace policies, and there are many cases before the human rights tribunal where something posted on Facebook is found to breach the company's workplace harassment policy." And it can still be considered workplace conduct even if it's posted online and it's posted out- side of working hours. "It should be there — just as employers have Internet use policies, they should have a social media policy. at's especially the case if they're issuing company cell phones to employees." Managing digital natives For younger employees, especial- ly, social media is a prevalent part of their lives, said Doug MacLeod, principal at MacLeod Law Firm in Toronto. "ey're connected all the time and they're sharing information all the time. And when they get to the workforce, they continue doing that, and sometimes don't appreciate the consequences and how it can adversely affect their employer," he said. "I think there is some responsi- bility on the part of the employer to, at the outset of the relation- ship, sort of set the boundaries for what's acceptable and what isn't. And that, of course, can be done by way of a social media policy." ere's no one standard policy, he said. "Some don't have to be that comprehensive given the nature of the work or the workforce, and some have to be tailored quite carefully. But the main thing is you want to make sure that people don't inadvertently breach com- pany policy while they're using social media," he said. "e situation that we see most often in the case law is when the employee is biting the hand that feeds it by criticizing its employer or supervisor online." Avoid knee-jerk reactions But employers get into trouble when they jump the gun on an is- sue, when they don't think of the larger legal and HR consequences, said Pugen. "It's the same with any behav- iour. Employers need to sit back, engage management, have a dis- cussion with human resources, engage legal if appropriate, review their own policies, review the em- ployee's own record, review wheth- er the actual conduct is something that is made in isolation, whether it actually impacts the business… that's the big test for off-duty con- duct and social media, is whether the conduct reflects poorly on the company and brings their reputa- tion into disrepute." e recent Hydro One case that saw the termination and then re- instatement of employee Shawn Simoes — who supported the in- sult of an on-air reporter — is just one example, he said. "e person was reinstated… even though he said something that was deplorable, it would be pretty tough for the company to suggest that was something that really impacted their reputation or their product line or their busi- ness. I think most people would know that it was someone who said something stupid at the wrong time." e best policy is to avoid jump- ing to conclusions, said Wynne. "Do your due diligence, which includes collecting all the infor- mation. e caveat is it really de- pends on the severity of what the employee did," he said. "If it's something really egre- gious… or something that con- nects to the employer directly, then that might be just cause and that might be justification for a quicker reaction. But it's always a good idea to collect information and make an informed decision. Do the due diligence, at least get the employee's side of the story, and try to consider the greater picture of how overtly is this per- son representing the company — if at all?"

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