Thoughts from a Management Lawyer

Casual Pot Use Ruling Up in Smoke

I had posted about how an Alberta judge had found in Alberta (Human Rights and Citizenship Commission) v. Kellogg that "casual pot use" was a disability within the meaning of the Human Rights, Citizenship and Multiculturalism Act.  Specifically, the chambers judge held that the employee had been the victim of discrimination based on the employer's perception that he suffered from drug addiction.

This was a case that received a significant amount of play in the media at the time and left many employers asking themselves some tough questions about how they would deal with this complex issue in future cases. 

Not surprisingly, the employer appealed and today the Alberta Court of Appeal released its decision allowing the appeal and overturning the lower court's decision.  The Court found that the Chamber's judge had made a palpable and overriding error in finding that KBR perceived Chiasson to suffer from drug addiction. 

In doing so, the Court held that:

.... the only basis on which the [employer] policy would be discriminatory against casual marijuana users, such as [the employee] would be if, as the chambers judge concluded, the effect of the policy is to perceive anybody testing positive as drug addicted and therefore disabled, and to impose restrictions, penalties, or differential treatment on those persons based on the perceived disability.

In this case the employer's "policy does not perceive [the employee] to be an addict. Rather it perceives that persons who use drugs at all are a safety risk in an already dangerous workplace."

The Court of Appeal, after analogizing this case to that of a trucking or taxi company that has a policy prohibiting the consumption of alcohol for some time before the employee gets behind the wheel of a company vehicle, offers that "extending human rights protections to situations resulting in placing the lives of others at risk flies in the face of logic."

This case will, no doubt, be well received by employers carrying on business in industries such as that in which the employer here was engaged. 

National Labor Relations Board Restricts Union Use of E-mail

The New York Times reports that the National Labor Relations Board has "ruled that employers have the right to prohibit workers from using the company’s e-mail system to send out union-related messages, a decision that could hamper communications between labor unions and their membership." (see Labor Board Restricts Union Use of E-Mail).  The case is The Guard Publishing Company and the NLRB considered a number of important issues including whether:

1. The employer violated the Act by maintaining a policy prohibiting the use of e-mail for all “non-job-related solicitations.”
2. The Employer violated the Act by discriminatorily enforcing that policy against union-related e-mails while allowing some personal e-mails and by disciplining an employee for sending union-related emails.
3. The Employer violated the Act by insisting on an allegedly illegal bargaining proposal that would prohibit the use of e-mail for “union business.”

With respect to issue #1, the NLRB concluded that "employees have no statutory right to use the Respondent’s e-mail system for Section 7 purposes. We therefore find that the Respondent’s policy prohibiting employee use of the system for “non-job-related solicitations” did not violate Section 8(a)(1)."  In reaching that conclusion, the NLRB referred to and relied upon a long-line of cases involving the use of company equipment and the "basic property right" that allows the employer to "regulate and restrict employee use of company property."

The majority addressed the "balancing of interest" approach relied upon by their dissenting colleagues and rejected it.  Of note is that the "balancing of interests" is an approach that has found a great deal of support in Canada with respect to a variety of labour issues such as, for example, surveillance.  A number of arbitrators have recently rejected this approach.  In any event, presumably, before you can get to a balancing of interests, it must be found that there exist rights on both sides.  The majority of the NLRB found that the employees had no right under the Act to use the employer's email system for section 7 purposes. 

Not surprisingly, this decision has been attacked including by the AFL-CIO.   In addition, Workplace Prof Blog has a post in which it describes the majority's analysis as being "weak". 

The Death of the Holiday Party?

Is the company holiday party a thing of the past? 

There's been allot written about employer liability associated with holding a holiday party for employees.  It makes you wonder whether it's really worth it.  Sure, there are lots of positives, but there are also many risks.  Call me scrooge, but the company holiday party has set the stage for some leading employment law cases.  Whether it be inappropriate comments or conduct, to booze induced tirades at the boss, to accidents, the party can be a legal minefield for employers.  One of our BLG Newsletter from 2005 discusses some of this.

The USA Today reports that Companies trim holiday parties, bonuses and notes that "about 85% of companies will host a holiday party this year, according to a survey by Battalia Winston, an international search firm based in New York. That's down from 94% in 2006 and the lowest percentage since the Sept. 11 attacks."  The reason that accounts for the reduction?  Probably costs.

Data Leaks and Criminal Offences - CEOs Beware

A little off topic, but I saw an article at the Times Online (Call for CEOs to carry can for data leaks) and was intrigued.  The gist of the article is that:

MPs are considering changes to data protection laws that would make chief executives directly responsible for keeping the public’s personal information safe and make the improper use of data a criminal offence.

With the smell of Sarbanes-Oxley in the air, this is something to keep an eye on if you're in the UK.

Is Workplace Pornography a Health and Safety Issue?

Yes, according to a post on Andrew Scott-Howman's excellent Life at Work Blog (see Workplace porn: a health and safety issue?) in which Andrew discusses a recent New Zealand case:

On the basis of the authority’s determination, there is little doubt that Williams was exposed to material that was inappropriate in her workplace. Further, the repetition of events in a relatively short timeframe undoubtedly made the issue worse for Williams – and led the authority to the conclusion that the employer had failed in duties owed to her.

Andrew asks a very important question "But does this meet with common sense? Would we really call porn an issue of “safety” for employees in the office?"  I suppose, where repeated, and depending on the circumstances, it might be a safety issue.  But, more likely, it is a human rights issue.

For example, the Ontario Labour Relations Board who is charged with dealing with complaints under the Occupational Health and Safety Act has said:

The Board in numerous decisions (see, for example, Meridian Magnesium Products Ltd., [1966] OLRB Rep. Nov./Dec. 964; Toronto Hydro, [1977] OLRB Rep. Nov./Dec. 1050, and The Toronto Board of Education, [1977] OLRB Rep. May/June 541) has dealt with the issue of whether the Board should exercise its discretion to hear matters which raise issues of discrimination that could be raised before the Human Rights Commission.

In these cases, the Board defers to the Human Rights Commission as being the more appropriate forum to deal with matters of discrimination and harassment on prohibited grounds (i.e. sex). As pointed out by the Board in Armstrong v. Orenda Aerospace Corp., relying on the earlier case of The City of Scarborough:

... the applicant’s complaint appears to essentially be one of discrimination and harassment because of his race, ethnic origin, or his association with members of a particular race. In other words, the complaint appears to be primarily a human rights complaint. In such instances, the Board has found that “where the “pith and substance” of the complaint concerns harassment or discrimination contrary to the Human Rights Code, it is generally appropriate for the Board to exercise its discretion pursuant to subsection 50(3) of OHSA and section 96 of the Labour Relations Act, to refuse to inquire into the complaint.

The interface between OHSA and the Human Rights Code has been exhaustively addressed in the decisions referred to by the responding party and there is no need to once again engage in a detailed analysis. However, the following excerpt from the Board’s decision in The City of Scarborough, supra is a helpful summary of that jurisprudence:

However important issues of workplace discrimination, harassment or "poisoned environment" are, and however much these may affect the actual health, safety or well-being of a worker, it is apparent that the legislative treatment of these non-physical "hazards" is different from the legislative treatment of physical hazards. The Board's jurisdiction under section 50 of the Occupational Health and Safety Act must be assessed in the context of this complex legislative and adjudicative scheme. The Board's role under section 50 of the Occupational Health and Safety Act is narrow and quite specific. The Board's jurisdiction is specific to the same kind of reprisal jurisdiction it has under other statutes, the Environmental Protection Act, for example. It is no part of the Board's job in a complaint under section 50 to rectify or remedy health and safety problems, as such. Indeed, the Board does not even inquire into the existence of health and safety problems, except to the extent that it is necessary to do so in order to properly deal with a reprisal complaint. Nor is the Board in a position anything like that of the Courts which have a broad and far-ranging inherent common law jurisdiction to deal with matters which may raise complex issues of fact and law, and questions concerning the interpretation and application of different statutes. Further, it is worth noting that notwithstanding this broad inherent jurisdiction, the Courts have become more and more willing to defer to a tribunal which appears to have statutory jurisdiction over the primary issue, albeit taking into account the apparent deficiency of the administrative law forum (see, for example, Weber v. Ontario Hydro, 1995 CanLII 108 (S.C.C.), [1995] 2 S.C.R. 929 (Supreme Court of Canada)).

For the reasons given in Meridian, supra, I am satisfied that the Board's jurisdiction to deal with questions of harassment and discrimination in a complaint under section 50 of the Occupational Health and Safety Act, is at best indirect, and indeed rather remote, when compared to the jurisdiction of the Human Rights Commission and human rights Boards of Inquiry to do so in the exercise of their specific and direct jurisdiction under the Human Rights Code. This does not mean that the Board will decline to inquire into a complaint under section 50 of the Occupational Health and Safety Act merely because the factual basis asserted for the complaint includes discrimination or harassment. However, where the "pith and substance" of the complaint concerns harassment or discrimination, it is generally appropriate for the Board to dismiss a section 50 complaint in the exercise of its discretion under subsection 50(2)…

So, at least in Ontario, an argument could be advanced that the question posed in the title to this post is "no" (or at least "it depends").

International Day of Disabled Persons

December 3 is International Day of Disabled Persons.  This year’s theme is based on the right of persons with disabilities to work on an equal basis with others and the International Labour Organization will be releasing a report by Dr. Arthur O'Reilly entitled The Right to Decent Work of Persons with Disabilities. 

In the interim have a read of the ILO's Managing Disability in the Workplace.

Email and Stock Manipulation, a Bad Combination

A former HR executive is expected to plead guilty to obstruction of justice in a federal investigation of the company’s stock option grants, the United States attorney’s office said Friday.  The New York Times has an article that outlines the allegations:

"[the HR executive] was charged with instructing a subordinate to delete an e-mail message that contained evidence of stock option backdating by [the company's] senior executives and board members."

In the end, "HR is the conscience of the business" and, though important to be aligned with the business objectives, this overused adage should never be forgotten, though it all seems pretty common sense from the cheap seats.

Julius Melnitzer over at the FP Legal Post notes that OSC investigating stock-option backdating and his Financial Post article Manipulation 'serious problem'.

 

WSIB Launches its Graphic Ad Campaign

The Ontario Workplace Safety and Insurance Board ("WSIB") has unveiled their  graphic ad campaign designed to focus on the theme that "there really are no accidents".  Mark Sutclifffe in his article The new workplace safety ads are revolting. That's why they work over at the Ottawa Citizen puts it this way:

The WSIB ads are about as subtle as a taser blast. They confront viewers with explicit images of disfigured workers who have suffered workplace accidents. A sous-chef slips, pours a vat of hot oil all over her face and screams in agony. A woman in a retail store tumbles off a ladder straight into a glass table, then with blood oozing from her head explains how both she and her employer could have prevented the fall. After being impaled on steel beams, a factory worker matter-of-factly explains to his co-worker all the steps that could have prevented the cascade of materials that crushed him.

Does this shock approach work?  Irrespective of your view, they sure have generated a discussion (Explicit worker safety ads attract praise, criticism) and, maybe, that's the point.

The good folks over at Workers Comp Insider have a great post called Controversial Canadian workplace safety ads unveiled and ask "what do you think?"  and link to the ads.

 

Depression at Work

A recent report by Statistics Canada looks at Depression at Work and comes to some eye opening conclusions:

• An estimated 489,000 Canadians aged 25 to 64 who were employed at the time of their 2002 CCHS interview (3.7% of workers) had experienced a major depressive episode in the previous 12 months
• Although the various disabilities associated with depression may seriously impede an individual’s ability to find and keep a new job, many people who have recently had a major depressive episode (depression) are in the workforce
• That depression is associated with both work absences and lost productivity in the
  form of reduced work activities.
• In Canada, the cost of productivity losses in the form of short-term disability days due to depression was estimated at $2.6 billion in 1998

Employers are, increasingly, having to deal with and accommodate employee absences having their root in mental or psychiatric impairments.  These are, often, the most difficult and complex cases to accommodate and, given the trend in the case law, the employer should be especially patient with the employee and thoughtful in how it addresses the matter.