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Current Issues in Employment Law

Just when you thought that all of the issues regarding relations between employers and employees had pretty much been considered, answered, put to bed, a whole new crop of concerns has arisen. Some may be more accurately said to have re-arisen; others, to have been further refined; still others, having come out of nowhere. Here are a few of them, for your own consideration.

Blogging and the Workplace

Having just come out of an election, one where certain candidates’ past ‘self-expression’ ended up on blogs or YouTube, we as a society may finally be coming to know that the Internet is indeed forever. But while some youthful indiscretion may come back to haunt wanna-be MPs down the road, we now know that putting out pollution onto the Electronic Highway can have immediate consequences.

A recent issue of concern for employers is the proliferation of blogging. ‘Blog’ is the abbreviation of the term “Web log.” Blogs are essentially on-line self-publishing tools that are used in any number of ways and for any number of purposes. One of the ways that people use blogs is as an electronic personal diary. The problem with an electronic personal diary is that it is posted on the Internet, and is available for wide dissemination. As with many personal diaries, there is a temptation to include thoughts and observations on a wide range of topics, from bloggers’ personal lives to their work  lives. For many companies, firing an employee who posts offensive content to the Internet is not as simple as making the decision and carrying it through. There are larger, and in some cases much larger, issues to be considered. A spate of recent cases has explored the line between such self-expression and the effect when it amounts to airing a company’s dirty laundry in public. In some cases, the employee/blogger was found to go too far, justifying termination; in others, the termination was found not to be justified. What is a company to do?

Many companies have already developed policies that outline the proper use of the Internet, the type of material that is considered offensive, etc. It would be appropriate in this day and age for companies, especially companies that deal in technology, to implement an employment policy specifically dealing with blogging. Any such policy contain, at a minimum, the following:

  • An explanation of the specific activities that will be considered to constitute blogging. 
  • A description of the type of blogs that are acceptable, and those that are not. 
  • A statement of consequences that will result for inappropriate blogging.

Like any employment policy, a blogging policy must be: distributed to employees, explained to them, unambiguous, consistently enforced and reasonable.

Work Place Violence Regulations

The past few years has seen a great increase in the regulation of safety in the workplace. While Alberta has included violence as a workplace hazard, federally regulated employers are now subject to new regulations regarding workplace violence. Firstly, the new regulations have a broad definition of work place violence: “any action, conduct, threat or gesture of a person towards an employee in their work place that can reasonably be expected to cause harm, injury or illness to that employee.” This definition obviously includes actions that cause physical harm, but also includes actions that have the potential to cause harm, including possibly psychological harm. The definition of violence is narrower in Alberta. It means “the threatened, attempted or actual conduct of a person that causes or is likely to cause physical injury.” Unlike the definition in the federal regulation, this definition excludes psychological injuries.

The new regulations require federally regulated employers to have a work place violence prevention policy. Among other things, the policy must include a detailed assessment of the potential for work place violence, and controls to eliminate or minimize the risk of violence. Employers are required to review the policy at least every three years, or more often if there is a change that affects the policy. Employers also have to develop emergency notification procedures, which allow employees to summon immediate assistance in case of work place violence. Employers must provide training to employees about workplace violence and the employer’s policies.

In Alberta, the requirements are somewhat less detailed, but essentially the same in nature. Employers are required to assess the risk of work place violence, and take measures to either eliminate or control violence. They must have policies and procedures for workplace violence, and must educate employees about recognizing work place violence, how to respond, and the employer’s policies and procedures.

So, while violence as a workplace hazard—an explosion of a non-chemical kind?—is not actually new in Alberta, the push from the federal sector may give in new attention here.

Drug Testing in Alberta

Random or pre-employment testing has been the focus of intense scrutiny in Alberta. A recent decision of the Alberta Court of Appeal, Alberta (Human Rights and Citizenship Commission) v. Kellogg Brown & Root, signals a more employer-friendly approach by the judiciary to such drug and alcohol testing. When KBR hired John Chiasson to fill a safety-sensitive non-union position on a construction site in Ft. McMurray, he was required to take and pass a pre-employment drug test. There was no such requirement for unionized workers on the same job site. Six days before taking the test, and a few days before he was interviewed and hired, Mr. Chiasson had smoked marijuana, but, thinking that enough time would elapse before the test that he would not test positive, he did not advise his new employer. Nine days after he began working for KBR, Chiasson’s test results came back positive. Although he advised KBR that he had not taken any drugs at work and KBR considered him a good worker, his employment was terminated.

Chiasson challenged KBR’s practice of mandatory pre-employment drug testing as discriminatory on the basis of disability under Alberta’s Human Rights, Citizenship and Multiculturalism Act. The Human Rights Panel agreed that KBR did not accommodate Chiasson, but held that there was no discrimination because he did not suffer from a disability or a perceived disability. The Panel also accepted that the testing policy was reasonably necessary because marijuana use impairs workplace performance in an extremely congested and inherently dangerous workplace where operating heavy equipment and physical dexterity in inspecting load materials were part of the job. Chiasson appealed to the Alberta Court of Queen’s Bench which allowed the appeal and held that KBR had not justified its drug testing policy by showing it to be reasonably necessary to fulfill a legitimate work related purpose and or that it would accommodate individual employees in the claimant’s position to the point of undue hardship. Therefore, KBR’s pre-employment drug testing policy discriminated against both recreational and dependant users alike and assumed all were substance abusers.

The Alberta Court of Appeal allowed KBR’s appeal and upheld its mandatory pre-employment drug testing policy because it was directed at actual effects suffered by recreational marijuana users and addressed the safety risk in an already dangerous workplace. Based on the medical evidence before the Panel, the Court accepted that the effects of marijuana linger for days, so that the policy’s effects were not misdirected in their application to Chiasson. The Court disagreed with the lower court that the issue turned on the discriminatory effect of perceived disability based on drug use. As a result, an employee cannot rely on an alcohol or drug dependency to excuse culpable conduct if he won’t acknowledge being addicted. Drug testing of workers already employed at a work site can also survive arbitral scrutiny on human rights principles.

The Alberta Court of Appeal itself has established that the crucial threshold issue is whether the employer’s policy is properly applied to the individuals before the Court or arbitrator, especially when there is no elevated safety risk and no discernable purpose for applying the policy to those individuals. After all, drug and alcohol testing is presumed to be discriminatory, and it is up to the employer to justify its application. 

New Guidelines for the Use of Video Surveillance

New guidelines were released earlier in 2008 to set limits on the use of overt video surveillance by private-sector organizations. The guidelines target companies governed by the federal Personal Information Protection and Electronic Documents Act (PIPEDA), as well as companies governed by Alberta’s Personal Information Protection Act (PIPA). 

It is clear that the authors of the guidelines favour a cautious approach to the implementation of such surveillance, while still recognizing the appetite for it shown by employers. The first directive is exemplary in this regard: a company considering the use of video surveillance must first consider all less-intrusive alternatives for achieving the same goal. Only when those alternatives have been considered and discarded should a company turn to the use of video surveillance.

Once a company subject to PIPEDA or PIPA has determined that no less-intrusive means are available for achieving its goals, it must evaluate its use of video surveillance and take steps to ensure that any surveillance undertaken is conducted in a manner that respects privacy rights of individuals. The guidelines also place limits upon what a company can do with information obtained through video surveillance once it has been collected.

The key principle of the guidelines is “reasonableness”. Affected companies are asked to use video surveillance only for purposes and in ways that a “reasonable person” would consider appropriate in the circumstances. In order to respect this “reasonableness” requirement, the guidelines recommend the following limitations: 

  • Cameras should be positioned in order to avoid capturing images of people not targeted by the surveillance (for example, people walking on a sidewalk outside a store). 
  • Cameras that are turned on for limited periods during the day are preferable to “always on” surveillance. 
  • People should be given notice that video surveillance is taking place before they enter the premises. 
  • People whose images are captured by video surveillance should be given access to those images upon request. 
  • Companies must take steps to ensure that video surveillance equipment and the information they record are secured and accessed for authorized purposes only. 
  • Companies must take steps to educate employees tasked with the operation and storage of video surveillance equipment and images so that those employees understand the privacy issues at play and the company’s obligations under the law. 
  • A company only for should retain Information obtained through video surveillance as long as necessary; it should then be destroyed in a secure manner. • Companies should create a written policy describing its video surveillance procedures, including sanctions for employees who violate its terms.

Also of note is the implication that a company should not consider its use of video surveillance to be a permanent feature of its operations. Before implementing video surveillance, companies are required by the guidelines to identify a valid business reason for it. Moreover, after implementation, companies must periodically evaluate their use of video surveillance, and ask whether the business reason for its use still exists. If not, then it
should be discontinued.