Legalities of the workplace: 4 key questions answered

What are the risks of social media searches? How do we handle temporary layoffs? Why are termination provisions important?

Legalities of the workplace: 4 key questions answered
James Kondopulos

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With the world of work turned upside lately, an employer doesn’t need the headache of being accused of unfair treatment.

So what are key points to remember when it comes to accommodation, social media searches, proper termination and the right to temporarily lay off or reduce pay or hours?

Canadian HR Reporter tapped into the expertise of Vancouver-based law firm Roper Greyell for some answers to difficult questions.

First up is Keri Bennett, partner, with a focus on privacy and freedom of information law.

Why do employers often mishandle accommodation requests and fail to satisfy the duty to inquire?

“Some employers may be of the mistaken view that what they don’t know won’t hurt them [but] the Human Rights Tribunal has said that you do have a duty to inquire into whether or not an employee needs accommodation.

“If an employee is having performance issues at work and you’re planning to issue some form of discipline and there are facts or circumstances that would lead any reasonable person to believe that the performance issues may be connected to a disability, the employer has a duty to ask whether there are any disability issues that are impacting the workplace performance and then to consider whether the employee can be accommodated.

“[If not], the impact is a potential finding by the Human Rights Tribunal that the employer failed to make appropriate inquiries as to whether or not the employee needed accommodation and there are damages that flow from that finding.

“When you’re looking at employee misconduct, before you make any disciplinary or termination decisions, think about, are there any facts or circumstances that should be explored further?

Why is it important for employers to understand the risks around conducting social media searches on applicants or employees?

“It’s important to know that there are different views on this issue, because of the different legislation across the country. There is expressed statutory language setting out the limits of when you can collect, use and disclose personal information about employees and those commissioners have said that employers should exercise caution.  

“Many commissioners have said that employers should not be engaging in social media searches. The reason for that is when you have an applicant for employment or when you’re doing a social media search about an employee, you may be getting inaccurate information.

“There’s a human rights risk. Employers would not, in an application process, ask questions about issues that are contrary to the Human Rights Code but you may find that information out when you’re doing a social media search.

“There may be certain circumstances where an employer would ask for consent to do the search [such as] high-profile, public-facing positions where reputation is important... Those are going to be the exceptions rather than the rule.

“[But] if an incident is brought to an employer’s attention, the employer may have an obligation to investigate the issue and most privacy legislation permits collection, use and disclosure without consent, for an investigation.

“If a social media search is necessary, the employer will need to consider whether they should obtain consent before engaging in the search or should consider whether the law permits the search without notice or consent.

Next, we spoke with James Kondopulos, founding member and partner, who practices in employment and labour law.

James Kondopulos was awarded as one of the Best Employment Lawyers in 5-Star Employment Lawyers survey. See the full list of winners here.

Why are proper termination provisions so important?

“A proper termination provision — one which is carefully and correctly drafted, clearly and unambiguously worded and does not fall below the requirements of the applicable employment standards legislation — is critically important. It is one of the most essential parts of a written employment agreement, if not the most essential part.

“The termination provision provides the employer with the opportunity to agree with a non-unionized employee in advance about entitlements in the event of dismissal.

“The presumption at common law or judge-made law is that the employee will be entitled on dismissal to reasonable notice. An enforceable termination provision rebuts that presumption and can replace the entitlement to reasonable notice with as little as the minimum statutory entitlements under the employment standards legislation.

“The predictability and certainty which comes with a proper termination provision can save an employer a lot of time, money and unnecessary trouble when the employment relationship ends.”

What are mistakes employers often make around temporary layoffs or reductions in pay and work hours?

“Many employers operate under the misconception that they have a general right to temporarily lay off non-unionized employees or even reduce their pay or work hours. Not always so.

“Consider the language of the written employment agreement and in the absence of such language, consider whether there is a tacit or silent understanding or a well-established industry practice around the right to temporarily lay off or reduce pay or work hours.

“In the absence of a right to temporarily lay off or reduce pay or work hours, the employer runs the risk of breaching the contract with the employee or wrongfully (constructively) dismissing the employee by proceeding with a temporary layoff or reduction in pay or work hours.

“Even if there is a right in a contract of employment to temporarily lay off an employee, the employer is well advised to proceed cautiously. Employment standards legislation applies and there may restrictions or limitations applicable to the temporary layoff, including its permissible or allowable duration.

“For example, in British Columbia, an employee cannot be laid off for more than 13 weeks in any given 20-week period and, if he or she is not recalled to work after 13 weeks, the layoff becomes a termination. This law applies even in challenging business conditions like those created by the COVID-19 pandemic.”

For more information, contact Keri at [email protected] or James at [email protected].

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