Thoughts from a Management Lawyer

Maternal Profiling on Mother's Day

On this mothers day, I saw a post over at Delaware Employment Law Blog that made me do a double-take.  It deals with maternal profiling, a topic that I wrote about a few months ago.

The part of the post that made me flinch was where it was observed that it was permissible, in certain States, to ask a job applicant whether they "have children or whether they have adequate child care arrangements?"  Also, in some States "employers may lawfully ask job candidates about their "family status," including questions about whether or not the applicant has children, is married, etc."

The author of the post (Molly DiBianca) goes on to note that:

And I can say with great certainty that we would never, ever, ever, advise our clients to ask something as foolish as "Are you planning to have children?" to anyone, and certainly not to a potential or current employee!

Just because it’s legal doesn’t mean it’s smart, right?  No good can come of these questions.  So don’t ask them.  Just don’t do it. 

Solid advice.

If you're in Canada, have a look, as an example, at the Ontario Hiring? A Human Rights Guide (I believe the Commission used to have a PDF version, but I can't seem to locate it).  According to the Guide, here are the permissible and prohibited questions relative to sex at the interview stage: 

Permissible Questions

Questions about or relating to gender, if it is a reasonable and genuine requirement for a particular job, such as employment in a shelter for battered women.

Prohibited Questions

All other questions concerning the applicant's sex, including questions regarding pregnancy or child-bearing plans. [emphasis added]

There are also prohibited questions on application forms and in interviews dealing with family status. 

So, in Ontario, and I suspect in other provinces, such questions are prohibited.

I just realized that I had neglected to add the Delaware Employment Law Blog to my blogroll which I have now rectified.

Court Throws a Wrench into the Mix

Every so often a case comes out that is difficult to get your head around.  The recent Court of Appeal case in Wronko v. Western Inventory Services Limited is such a case (to me at least). 

It might be because the Court chose to use terms that have, heretofore, not been known in Canadian employment law.  As an example:,"employment of persons is “at will”; that is, either party has a right to terminate the employment relationship without cause" but with consequences. 

The case centered on whether the employer could change an important term of the employment contract on notice without triggering liability to damages.

Background

Mr. Wronko commenced employment with Western in 1987 and was promoted in February 2000 to the position of Vice-President of National     Accounts and Marketing.  Following this promotion, he signed a written employment     contract with the company, dated December 20, 2000 that provided, in part, that for payment, on termination, of “the previous two (2) years salary plus bonus to be paid as termination if notice of termination is given... at any fiscal year end or at any other time”. 

There was a change in management at Western in 2002 and a new president came on board.  At that time, the president delivered a new contract to Mr. Wronko that contained a termination clause that reduced Mr. Wronko’s entitlement to notice of termination from two years to three weeks notice or pay in lieu of notice for each year of employment, to a maximum of thirty weeks.

Discussions ensued and Mr. Wronko did not sign the new contract.  He received legal advice to that effect and wrote to the president saying "If the Company has a reasonable alternative it wishes to put forward, I am prepared to give it due consideration.” No response was received and, instead, Mr. Wronko received a memo which, according to the Court:

..... purported to give him 104 weeks (i.e. two years) notice that the termination provision in his employment contract would be changed to provide that upon termination of his employment, other than for cause, Wronko would be entitled to three weeks notice or pay in lieu thereof for each year of employment, to a maximum of thirty weeks.

Two years and four days after the September 9, 2002 memo was sent to Mr. Wronko – the president sent him an e-mail attaching the 2002 memo and a contract, which was described as the “go forward agreement” and set out the termination provision set out in the 2002 memo. The e-mail expressed Davoren’s view that since two years had passed, the new employment contract was now in effect.  He asked Wronko to sign the agreement and return it.  The president ended by saying that “If you do not wish accept the new terms and conditions of employment as outlined, then we do not have a job for you.” which the Court viewed as significant.

Mr. Wronko took the position that he had been terminated and demanded two years compensation in accordance with his original contract.

At Trial

At trial, the judge identified the real issue as being whether Western had the unilateral right to vary the termination provision in the employment contract upon reasonable notice to the employee.  The court relied on the following quote from Farber in concluding that, although Mr. Wronko had no intention of resigning, he was not entitled to damages:

A constructive dismissal occurs when an employer makes a unilateral and fundamental change to a term or condition of an employment contract without providing reasonable notice of that change to the employee. Such action amounts to a repudiation of the contract of employment by the employer whether or not he intended to continue the employment relationship. Therefore, the employee can treat the contract as wrongfully terminated and resign which, in turn, gives rise to an obligation on the employer's part to provide damages in lieu of reasonable notice.

The Court of Appeal disagreed

It found, firstly, that the company terminated Mr. Wronko's employment.  The court went on to distinguish the Farber case.  Specifically, it held that Mr. Wronko had "consistently refused to accept a new contract throughout the last two years".

According to the Court, an employee faced with a unilateral change to a fundamental term of his employment has 3 options:

1.  the employee may accept the change in the terms of employment, either expressly or implicitly through apparent acquiescence, in which case the employment will continue under the altered terms.
2. the employee may reject the change and sue for damages if the employer persists in treating the relationship as subject to the varied term.  This course   of action would now be termed a “constructive dismissal”.
3. the employee may make it clear to the employer that he or she is rejecting the new term.  The employer may respond to this rejection by terminating the employee with proper notice and offering re-employment on the new terms.  If the employer does not take this course and permits the employee to continue to fulfill his or her job requirements, then the employee is entitled to insist on adherence to the terms of the original contract.  In other words, if the employer permits the employee to discharge his obligations under the original employment contract, then – unless proper notice of termination is given – the employer is regarded as acquiescing to the employee’s position.  As Mackay J.A. in Hill said: “I cannot agree that an employer has any unilateral right to change a contract or that by attempting to make such a change he can force an employee to either accept it or quit.”

So, according to the Court, Mr. Wronko presumably fell into category 3 and, as such, he never accepted the altered term of the employment contract and, since the employer allowed him to continue to work under those circumstance, it was stuck with the more generous term in the original contract (i.e. 2 years compensation).

What do we make of this?

Many people are going to be worked up by this case.  It makes things a bit more difficult and, maybe, uncomfortable for the employer.  It might call for a change in strategic approach.  No one likes change, but I don't see this case as being a big deal, albeit a bit impractical at the "in the trenches" level.   

According to the Wronko case, the employer can only change fundamental terms of employment with the employees agreement, either express or implicit.  Where the employee protests, "continuously" and indicates that he or she is not in agreement, then the employer is faced with a choice.  It can terminate the employee immediately with all of the consequences that go along with that under statute, common law and contract that this entails. "Eat crow while it's young and tender" is the tag line here.  Or wait and risk being faced with Wronko.

Another possibility is that, if the employee is not prepared to accept the change, the employer could make it clear that the existing terms will be maintained but that he or she should consider the notice as working notice of the termination of his or her employment.   Door "A" is you accept it and door "B" is that you have no job at the end of the notice period.

I'm still working through this myself and am not certain if this will pass muster, but those are some off the top things to consider. 

Though this was a unanimous decision, I suspect that an appeal may be coming in  Wronko. 

Victoria Day is a Public Holiday

The Ontario Ministry of Labour reminds us that Victoria Day is one of 9 public holidays recognized under the Employment Standards Act, 2000.  As always, check your jurisdiction on this. 

Mitigation in Employment Law

We know that a terminated employee has an obligation to mitigate his or her damages by making reasonable efforts to find other work.  But what about an employee who is dismissed, without cause, and subsequently offered his or her old position for a temporary (or even permanent) period?  Must the employee accept this offer in mitigation of his alleged damages?  What are the implications of the former employee's failure to accept the job offer?

The Supreme Court of Canada considered this very issue in Evans v. Teamsters Local Union No. 31. 

Mitigation cases have, by and large, been unkind to employers, but Evans seems to establish a more rigorous standard on the employee.  Time will tell whether this is so, but the majority of the Court seems to adopt a somewhat more relaxed mitigation-standard than was previously the case.

The Court establishes an objective test for deciding if it was reasonable for the employer to accept or decline the employer's job offer.  Mr. Justice Bastarache observed that:

Where the employer offers the employee a chance to mitigate damages by returning to work for him or her, the central issue is whether a reasonable person would accept such an opportunity. ... Thus, although an objective standard must be used to evaluate whether a reasonable person in the employee’s position would have accepted the employer’s offer (Reibl v. Hughes, [1980] 2 S.C.R. 880), it is extremely important that the non-tangible elements of the situation — including work atmosphere, stigma and loss of dignity, as well as nature and conditions of employment, the tangible elements — be included in the evaluation.This approach is significant, though possibly not such a significant departure from prior case law as may be assumed.  In reaching this conclusion, the court hangs-its-hat on the decision of the Ontario Court of Appeal in Mifsud. 

Also significant is the fact that the Court observed that Wallace damages are not subject to mitigation.  This is an important observation given that there had been some controversy in the case law on this point. 

Again, these are early days, and it remains to be seen how the Evans case plays out in practical terms, whether it will be as significant as some are predicting and whether employers change their tactics in dealing with terminations to account for the Evans approach.

There's a discussion of the case in the Lawyer's Weekly.

Blog Anniversary - Where has the time gone?

While I was away this blog celebrated its 5th year anniversary.  Who would have thought it? 

I have no idea where the time has gone, but I do recall agonizing over my first post all those years ago and wondering "ok, so if I hit the "post" button, what does that really mean?"  Well, 5 years later, it has meant a great deal to me personally and professionally through the many people that I have met because of this blog.  So thank you for stopping by and I hope you will continue to find something of interest here.

Back from Vacation and Refreshed!

At the risk of boring everyone who visits this blog, here's a vacation post.

We returned to Toronto on the weekend from a tremendous vacation in San Francisco, Sonoma and  Carmel. We squeezed everything we could out of this vacation.  Here's the view from our room in Carmel-by-the sea.

Some highlights were seeing Earl Klugh (one of my favourite guitarists) play on Friday at Yoshi's and meeting him after the show was a definite thrill.  Yoshi's is a very cool place and worth a visit if you're ever in the SF area.   His new album, The Spice of Life, is excellent.

17-mile drive was a lot of fun, and the required Lone Cypress picture was taken. 

The drive back to San Francisco along the Coastal route was pretty spectacular. 

Then there were the wineries!  We had a great tour of the "caves" at Kunde Estate Winery in the Sonoma Valley where the wines were only rivaled by the hospitality that was shown to us.  We also really enjoyed our time at Armida Winery in the Russian River Valley and touring around Healdsburg, a really neat little town.

The food was absolutely fantastic.  If you're in Sonoma, you might want to drop by The Girl and the Fig - we did and it was great!

If you're into John Steinbeck, as I am, then you can't pass up a visit to Salinas County and do stop by the produce stands along the side of the road.  We also went to the National Steinbeck Center.   And I'll end this personal post with a quote from Steinbeck (I will not comment further):

Blawg Review #157

It's a pleasure to be hosting this edition of Blawg Review in recognition of this important date on the Canadian calendar, the National Day of Mourning  which commemorates those workers whose lives have been lost or who have been injured in the workplace.

Having followed Blawg Review since its inception, this has been a somewhat daunting task (especially in a week where I'm trying to get out of the office on vacation - we all know what that's like). 

That said, it has been a fantastic experience that has given me an even greater appreciation for the scope of the labour ("labor" if you prefer) and employment information that's available through the many blawgs that are now being written. 

When I started this blog 5 years ago, there weren't all that many labour and employment blawgs and the blogosphere was quite small.  There was Mike Fox's Jottings by an Employer's Lawyer (which was the catalyst for my jumping into this pool) then came George Lenard's George's Employment Law Blawg, Ross Runkel's Law Memo and gang over at Workers Comp' Insider.   Now, there are dozens of labour and employment law blawgs offering up some great information for employers and employees alike. 

That's really the "theme" of this review.  I want to bring to your attention some of the labour and employment blawgs and other blawgs that periodically write about labour and employment issues, while, at the same time, offering a somewhat Canadian flavour (starting with the spelling of "flavour", "favourite" and "labour" and my habit for using "eh?" as punctuation).

Blogging as an Occupational Hazard?

As employment lawyers know, blogging can get you fired.  George Lenard did a great series on this a few years ago (Firing bloggers to protect company image: Part I -- the stories, Firing bloggers, Part II – challenges and opportunities of employee-bloggers , Firing bloggers part III -- avoiding unnecessary conflicts, Firing bloggers part IV -- more bad examples).  Popular Canadian blawger Rob Hyndman and one of the founders of Mesh (Canada's Web Conference) has a running list of resources on Corporate and Employee Blogging that is worth checking out.

But are Bloggers the New Occupational Risk Group? Could be, according to a New York Times article.  But the folks at Lynch Ryan go on to use the article not so much as a "negative", but as a warning to employers to keep an eye on the "sedentary" worker and the unique health risks that they face.  They identify, among others, "obesity, diabetes, circulatory problems, deep-vein thrombosis, musculoskeletal disorders, and other health problems." 

And while we're on the subject of obesity, did you know that Obesity costs U.S $45bn a year?  Quite a while ago, there was some discussion about Obesity Regulation, the Future of Obesity Regulation and More on Obesity and Other Regulation over at The Faculty Blog at the University of Chicago Law School. 

Cell Phone Regulation and Work

We all use them, but cell phones and work can be dangerous and employers would be wise to get in front of this issue.  Michael Moore over at  Russell, Krafft & Gruber LLP writes about Employee Cell Phone Use:  Adopt a Policy on Talking, Texting, and E-mailing while Driving.  A number of Canadian provinces ban cell phone use while driving with Nova Scotia and Quebec becoming the latest provinces in Canada to ban drivers from using hand-held cellphones (see this CTV report). 

This can be a costly issue as reported by Washington Labor, Employment & Employee Benefits Law Blog at Employee Use of Cell Phone Leads to $5.2 Million Verdict.

Micromanaging Employee Expenditures

My friend David Fraser from the East coast has a superb blawg called Canadian Privacy Law Blog.  David writes at Micromanaging Employee Expenditures about how employers can set certain parameters on corporate credit cards and the privacy (pro and con) implications that can arise.

Please Release Me (May not) Let You Go

For readers south of the border Frank Steinberg at the New Jersey Employment Law Blog cautions us about the circumstances in which releases may be attacked and set aside at Age Discrimination Release Voided.  Frank points to Pagliolo v. Guidant Corporation as a "virtual road map to attacking a release under the Older Workers Benefit Protection Act".

Accommodation of Mental Disorders and Learning Disabilities

Daniel Schwartz discusses whether employers are required to accommodate mental disorders and learning disabilities and the Curry v. Allan S. Goodman, Inc. case.  Daniel is "convinced that the importance of this case and its potential scope cannot be understated." 

Team Building Exercise Leads to Litigation

Daniel Lubin whose office is a few blocks from mine reports that Sales rep launches lawsuit after 'team-building' exercise at Utah company leaves him traumatized. The sales rep was allegedly "waterboarded" (described in a Washington Post has an article as requiring "that he lay on his back with his head downhill, and that co-workers knelt on either side of him, pinning the young sales rep down while their supervisor poured water from a gallon jug over his nose and mouth.")

Though this cases comes to us from Utah, Daniel draws some analogies under Canadian law. 

Drug Testing in Canada

While there are some similarities between U.S. and Canadian labour and employment law, there are a number of significant and important differences.  One area of difference relates to drug testing. 

There's a great blog out of the Osgoode Hall Law School at York University called The Court that describes itself as a site where "scholars, practitioners and other interested citizens can discuss the recent work of the Supreme Court of Canada".

They have a post on the highly publicized Kellogg Brown case out of the Alberta Court of Appeal dealing with whether a "post-offer, pre-employment drug testing policy discriminates against casual cannabis users on the basis of perceived disability."  Leave to appeal to the Supreme Court of Canada has been sought.

Dan Michaluk who blogs about Canadian privacy and access to information issues also reviews the decision and observes that "whether a drug and alcohol policy discriminates against casual users is a question of fact."

Canadian courts have been quite tough on drug testing policies starting with the leading Ontario case of Entrop. 

Genetic Discrimination

Fellow Canadian Donna Seale writes about Human Rights in the Workplace and often discusses developments in other countries while drawing Canadian parallels. Donna reports that the U.S. Senate has made it illegal for "employers to request or use a person's genetic information for the purpose of hirings, promotions, assignments or firings."  As Donna notes, "the potential for the results of genetic testing to be used for discriminatory purposes in the workplace hasn't, as far as I'm aware, really been discussed much in Canada."

Workplace Investigations

The Labor and Employment Law Blog outlines 13 factors to consider in conducting a proper workplace investigation.  The entire list is important, but I would emphasize promptness, thoroughness and follow up. 

Negligent Hiring and Retention

Daren Van Vlerah wrote a post over at The Employer Law Report about how a  Company is not liable for employee assault that discusses the "dual nature of employee criminal background checks" and suggests that the "best approach? " is for employers to "weigh the competing risks and benefits of conducting criminal background checks to determine what approach makes the most sense given their unique circumstances."  There's also a post a Day on Torts (South Carolina Opens Door to Negligent Hiring Claim).   

This is a really interesting subject for Canadian lawyers where these sorts of claims (negligent hiring) have not been widely used. Once again, there are many reasons to pay close attention to developments South of our border to anticipate what might be coming our way.

Baby's in the Workplace

And from "across the pond" at Employment Intelligence comes a post about Having a Baby in the Workplace by Stephen Simpson in which he discusses what is described as "the latest novelty among US employers destined not to catch on in the UK" of "allowing parents to bring their babies to work".  Stephen asks some hard hitting questions. 

It's a Small World After All

A short digression with (I hope) a point. 

Andrew Scott-Howman and I worked together at my firm, Borden Ladner Gervais here in Toronto.  Andrew left to return to his native New Zealand where he now practices labour and employment law at Bell Gully and avoids Canadian winters.  I hadn't seen Andrew in years and, out of the blue, he emails me telling me that he's been following this blog and has one of his own called Life at Work.  We've now connected and someday, hopefully in blustery January as the wind is howling, the snow is piling up all around and the sun a distant memory, I will visit Andrew in New Zealand.  The power and reach of the blogosphere always impresses.

Andrew has a consistently excellent posts, and to pick one is a tall order.  In Daysleeper: how the night shift might be killing you Andrew discusses a recent study out of the U.S. suggesting "that people working night shifts can suffer some serious health problems in the long run."

PDA's and the New Wave of Overtime Claims?

One of the things I enjoy about blawgs is that I can comfortably sit on the sidelines and watch the trends and developments in other jurisdictions.  While my interest is, in some cases, purely academic because of the differences in the legal landscape in Canada, at other times, there is an "Aha!" moment, where the development in another jurisdiction might have some legs in Canada. 

Overtime claims and, specifically, employment standards class actions, for example, while exceedingly common in the U.S. as a means of enforcing such rights, have not really taken off in Canada.  That said, over the past 12 months or so, a number of high profile overtime suits have been launched where class certification is being sought and these are winding their way through the system.  "Overtime" is the new "hot-button" for a great many Canadian employers (as many employees and their counsel know).   

So it is interesting to watch developments in the U.S. and to see how far the envelope can be pushed.  So I read, with interest, the post at Workplace Prof Blog discussing whether time spend checking BlackBerry messages can be compensable as overtime.

Sports, Coaching and Contract Law

Howard Wasseman writes that "the college coaching carousel flies in the face of everything we think we know about contract law"; his colleague, Rick Karcher reports that contract law might just have the last laugh.

Questions about Pregnancy

John Phillips provides a very helpful rundown of employer obligations concerning pregnant employees and notes that not all of the debate is on the record: "The argument about how pregnancy should be treated in the workplace has been going on a long time and I suspect will continue–not out in the open but in our brains or behind closed doors."

RSS Day is May 1st, Who Knew?

Did you know that Real Simple Syndication ("RSS") has a day?  Me neither until I read Sheryl Schelin at The Inspired Solo's post. 

To celebrate RSS day, I hope you will add this blog to your favourite feed reader.

A Lighter Note

The wonderful and anonymous Blawg Review Editor brought to my attention a post by Bob Kraft called Friday Fun where he asks "Are you having a really bad day at the office? Do you feel like freaking out and trashing your cubicle? The good news is that you don't have to do that in reality — you can do it virtually"  Check out Bob's post for the link.

Thanks for allowing me to share some of these posts with you, it has been a lot of fun and I hope you have found it of some value. 

Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues.

Hosting Next Blawg Review

I will be hosting the next Blawg Review - as I rush frantically to go out on vacation. 

The powers that be tell me that if you have any posts that you'd like considered, please go over to these guidelines for an explanation of the process and how to do that.

Workers are Prepared to Hand Over their Passwords for Candy

There's a stunning little article in Scientific American aptly titled Trick and treat: Workers divulge computer passwords for the promise of candy.  According to the article, 21 percent of subway riders at "London's Liverpool Street Station were prepared to reveal their computer passwords in return for a chocolate bar."  Employer's beware.

Testing - Sorry, Using "Instruments" - in Hiring

The New York Times has an article called Dilbert the Inquisitor that reviews the increasing tendency among employers to use "instruments" (aka testing) in the hiring process. There's also an article in the Globe and Mail (Fit the person to the job)

The use of these tests could raise human rights issues and it is important that employers are aware of this. There's a section in Human Rights At Work that sets out the Ontario Human Rights Commission's views on Psychometric and Psychological Testing (see page 68 of the publication).