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.
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."
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?
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.