Thoughts from a Management Lawyer

Online Reputation Management

My newest post about Online Reputation Management is up at Slaw.  There are lots of resources out there about this increasingly important subject.

EI Changes on the Horizon

The Globe and Mail reports that Prime Minister Stephen Harper's Conservative  government is poised to introduce employment insurance reforms.  There are more details in the National Post.  The Liberals have threatened to force a fall election, and this move is surely designed to take some of the wind out of their sails.  We'll see if it's enough.

A Couple of Blog Anniversaries

Mike Maslanka writes a great blog called Work Matters that is celebrating its 1 year anniversary while Daniel Schwartz's Connecticut Employment Law Blog celebrates its 2nd anniversary.

Congratulations to Mike and Daniel on their dedication and commitment and here's to another year of posting!

What a Difference a Year Makes

While there is some debate about the origin of the Labour Day holiday, it would seem that Canada is where it all began though it really doesn't much matter.  Here's a short article from the Canadian Encyclopedia and another from Wikepedia.

To many, the meaning of the holiday is lost and it has become associated with the end of summer and the start of the school year.  

But, as the Toronto Star remind us:

Nearly 500,000 more Canadians will be unemployed this Labour Day than last, and while economists say the recession is over, job losses are expected to continue well into next year, and many of those who lost their jobs don't qualify for Employment Insurance.

Union's continue to fight for reform and conditions of work and argue that they still make a difference. 

This has been a devastating year and individuals and their families have suffered greatly.  My sincere wish and hope is that better times are around the corner for those people who have had to deal with so much.   

The Most Recent Word on Random Alcohol Testing

I was about to write about the most recent case of Petro-Canada Lubricants Centre (Mississauga) and Oakville Terminal dealing with random alcohol testing and saw that Dan Michaluk has a great summary of the case at his blog.

You'll see that Arbitrator Kaplan references a leading case of Arbitrator Picher in Imperial Oil that was judicially reviewed and, in fact, recently made its way to the Court of Appeal. 

The generally applicable law was set out by Arbitrator Picher in Imperial Oil:

• No employee can be subjected to random, unannounced alcohol or drug testing, save as part of an agreed rehabilitative program.
• An employer may require alcohol or drug testing of an individual where the facts give the employer reasonable cause to do so.
• It is within the prerogatives of management’s rights under a collective agreement to also require alcohol or drug testing following a significant incident, accident or near miss, where it may be important to identify the root cause of what occurred.
• Drug and alcohol testing is a legitimate part of continuing contracts of employment for individuals found to have a problem of alcohol or drug use. As part of an employee’s program of rehabilitation, such agreements or policies requiring such agreements may properly involve random, unannounced alcohol or drug testing generally for a limited period of time, most commonly two years. In a unionized workplace the Union must be involved in the agreement which establishes the terms of a recovering employee’s ongoing employment, including random, unannounced testing. This is the only exceptional circumstance in which the otherwise protected employee interest in privacy and dignity of the person must yield to the interests of safety and rehabilitation, to allow for random and unannounced alcohol or drug testing.
• The cases generally recognize that an employee’s refusal or failure to undergo an alcohol or drug test in the three circumstances described above may properly be viewed as a serious violation of the employer’s drug and alcohol policy, and may itself be grounds for serious discipline. The failure or refusal to take an alcohol or drug test, however, like the registering of a positive test, does not necessarily justify automatic termination. The appropriate disciplinary sanction in such a case remains subject to the general just cause provisions of the collective agreement and is an issue to be determined on a case by case basis, having regard to all of the relevant facts (at para 100).

Arbitrator Picher went on:

…a key feature of the jurisprudence in the area of alcohol or drug testing in Canada is that arbitrators have overwhelmingly rejected mandatory, random and unannounced testing for all employees in a safety sensitive workplace as being an implied right or management under the terms of a collective agreement. Arbitrators have concluded that to subject employees to an alcohol or drug test when there is no reasonable cause to do so, or in the absence of an accident or near miss and outside the context of a rehabilitation plan for an employee with an acknowledged problem is an unjustified affront to the dignity and privacy of employees which falls beyond the balancing of any legitimate employer interest, including deterrence and the enforcement of safe practices. In a unionized workplace, such an extraordinary incursion into the rights of employees must be expressly and clearly negotiated. It is not to be inferred solely from general language describing management rights or from language in a collective agreement which enshrines safety and safe practices (at para 101).

As I said, the Award was reviewed by the Divisional Court and then by the Court of Appeal.

Dan has great summaries of these cases here and here. 

August Labour Force Survey - Are Good Times Ahead?

The August Labour Force Survey is out and it's good news for a change:

Employment among private sector employees increased by 49,000 in August, the first increase in this group since September 2008. Employment among both public sector employees and the self-employed edged down in August.

Is the recession over?  Maybe.

Social Media and Background Checks up at Slaw

I'm pleased to announce that I've been invited to be a contributor over at Slaw.ca and that my first post, Social Media and Background Checks is up at Slaw.  Please head over to Slaw to check it out and look around as there's a tremendous amount of information the site.

Be Brief but Never Short

Dan Michaluk offers a post about the art of brevity in legal writing.  This goes hand in glove with my post A reminder about what we (lawyers) do.  Good legal writing is persuasive - bad or sloppy legal writing has the opposite effect. 

Some feel the need to go on and on in their legal writing, covering every point in excruciating detail forgetting that long winded and rambly writing loses the reader.  Get to the point as quickly as possible and let the strength of the argument persuade.  What is certain is that the number of words you use and the volume of paper that it takes to make a point will not win the case.  Crisp, tight, direct, to the point writing helps.  Loose, unfocused, verbose writing hurts by distracting the reader from what you're trying to say.

A really good non-law book on writing is If You Want to Write by Brenda Ueland and written in 1938. Dan has a number of references as well.  Thanks for this reminder Dan.

Driving to distraction in Saskatchewan

Saskatchewan is the most recent province to indicate that they would introduce legislation that would ban texting and non-hands free cell phone use while driving.  Newfoundland and Labrador, Quebec and Nova Scotia already have varying bans in place and with Ontario's restrictions coming into effect in  October.

Labour relations is all about your point of view

The Fraser Institute has released its 2009 edition of Labour Relations Laws in Canada and the United States - An Empirical Comparison and it is sure to generate some healthy debate.  Here's the blurb about the study and the perspective:

"This study is the third installment of a long-term project to evaluate the extent to which labour relations laws bring flexibility to the labour market while balancing the needs of employers, employees, and unions. Balanced labour laws are crucial in creating and maintaining an environment that encourages productive economic activity. Labour relations laws inhibit the proper functioning of a labour market and thus reduce its performance when they favour one group over another or are overly prescriptive through the imposition of resolutions to labour disputes rather than fostering negotiation among employers, employees, and unions. Empirical evidence from around the world indicates that jurisdictions with flexible labour markets have more productive labour markets (higher job creation rates, lower unemployment, and higher incomes) which produce a higher standard of living."

The general conclusion of this study is that:

"Overall the trend is clear. US states tend to have balanced labour relations laws focused on providing workers and employers with choice and flexibility. Canadian jurisdictions, on the other hand, generally maintain much more biased and prescriptive labour relations laws."

Whether you accept this conclusion depends, in part, on your own definition of balance and your particular view of the world.  There are many who would not want to emulate US labour laws and would see them as favouring one side over the other - again, it depends on your point of view. 

For example, this blog post from the President of the Saskatchewan Federation of Labour comes at it from a different perspective. 

The debate about balance in labour relations is one that seems irreconcilable.  We see labour laws used as part of the platform of most political parties where they propose to "right the ship" by bringing their view of balance to labour relations. 

As an example, when the NDP came to power in Ontario in the early 1990's  they did so on a platform of labour relations reform.  They quickly re-wrote the Labour Relations Act to, arguably, make it easier for employees to organize and, some would argue, tilt the balance in favour of labour and the unions.  When the NDP lost power to the Conservatives who successfully campaigned on the platform of the "common sense revolution", they repealed the NDP's reforms (Bill 7) in favour of "balance" through free choice.  Some argued that this unjustifiably shifted the balance too far in favour of the employer.  Then the Liberals beat out the Conservative and they take the opportunity to implement their view of balanced labour relations by re-pealing some of the Conservative government's reforms.

Who's right and who's wrong?  In the end, and like in so many areas in life, it depends on your perspective.