Employment issues

Summer Workers

by

It’s summertime (not really) and our thoughts naturally turn (again not really) to summer students, interns and other temporary employees. Some of these indentured servants, er, temporary workers, will return to their studies in the fall, some will wander off to other jobs and others may even become permanent employees. For those employers thinking of bringing on some short-term help, here are some things to keep in mind:

Regardless of a worker’s status, they have the same ability to expose you to liability as any long-standing employee. Make sure short-term workers are fully aware of their confidentiality and privacy obligations, and any other policies and procedures applicable to the workplace. Have them acknowledge consent in writing – if your workers are not working for ordinary remuneration, as in the case of volunteers or unpaid interns, you will have to be very careful about making sure that written agreements document the legal consideration that binds employees to their part of the contract; this is not something that should be done without legal review. Failure to do this right may leave you with an ambiguous agreement, or, worse yet, an entirely unenforceable contract.

Make sure temporary workers understand the limits of their authority. The law of agency may leave you on the hook for any agreements or obligations that they enter into on behalf of the business.

Remember that the Employment Standards Act mandates minimum notice periods (or pay in lieu thereof) for without cause terminations. These apply even in the event of a short-term employment situation and cannot be contracted out of. Make sure you’re aware of the notice periods appropriate to your staff in the event of a termination. Make sure you’re very aware of the common law notice periods and remember that these often can be contracted out of.

Supervise and manage your short-term employees properly. They may not have the same commitment to the workplace that you’re used to and that could be a huge problem. There are issues much more problematic than time theft to worry about.

Lastly, as always, if you have any questions about any of these issues, give us a call.

Scott R. Young

The Andriessen Document Advantage

by

One of the many positives to being a small law firm is the close interaction between the litigation and non-litigation sides of the firm. We meet together on a regular basis to discuss files from both perspectives (how to avoid litigation and what strategy to pursue when litigation becomes inevitable). We also talk about avoiding disputes from the very beginning of a commercial relationship – this usually means getting the documentation right.

When we draft documentation for a client, we try to find out as much as we can about the way they do business; or more exactly, we find out about the way they want to do business and then we try to make sure that its completely compliant with the statutory framework under which the client operates, and any applicable case law. When possible, we try to approach the process holistically, and address as much of the business relationship as possible. We consider client solicitation, customer intake, the review of documents, imbalances in bargaining power, the need to retain specialized counsel on both sides of a transaction, the execution of the documents, the clarity of the documents, the term and termination of the agreement and what rights the parties have after the life of the document has ended.

When we talk about the clarity of legal documents, we’re talking about more than plain language and the clarity of our words – although we are talking about that too. We’re talking about everything from the readability of documents to font size, white space, kerning, the appropriate placement of margins in the event that a document will be faxed repeatedly, organization, numeration, and everything else we can think of. And then the litigators look at the document from the perspective of a judge, squinting to read and understand what exactly the parties have bargained for. And we fine tune.

At the end of the day, our goal is to provide a legal document that envisions the intention of the parties in a clear manner, contemplates current and incoming legislation, is adaptable for changes in case law and will add value to the underlying interaction between the parties. Our multi-disciplined and flexible approach produces excellent documentation. And that documentation improves the systems of our clients.

That’s the Andriessen Document Advantage.

Scott R. Young

Andriessen & Associates Lunch and Learn

by

We’ve rolled out a new service for clients that has met with a considerable degree of success; so much so that we’re planning on expanding it in the coming months. Combining two of my favourite things – eating and getting free legal advice – our Lunch and Learn series focuses on getting small groups of clients into our office to talk about areas of law specific to their interest.

The intimate lunchtime gathering is the perfect setting. Instead of sitting and listening to a lawyer drone on about the law, the atmosphere is much more give and take and we get to talk about the real world business application of the law. It’s a good place to find workable solutions for our clients. And it’s a good place for us to find out what our clients are doing in their day to day operations – we do as much learning as anyone.

Inga had the opportunity to speak about our 30-60-90 Sue™ philosophy to a few groups recently and it was very well received – to some clients, the idea of getting paid for the work they did was somewhat revelatory – to others, it just tweaked the good habits that they already had.

Paul Voorn will be hosting a Lunch and Learn soon on Construction Lien Act considerations. If you perform any construction services or have an interest in commercial property, this event will be enormously beneficial to you.

I’m planning a complete corporate compliance Lunch and Learn in the coming weeks that will deliver a broad overview of the current legislative scheme and a focus on what smaller businesses really need to concentrate on in terms of legal compliance.

Also in the pipeline, some litigation-oriented events, focusing on the stages of a lawsuit, as well as some specific corporate events.

If you have any ideas for a topic that you’d like to see covered, or want to attend one of the lunches I’ve mentioned, please drop us a line.

Scott R. Young

Privacy in the Workplace – the Importance of Good Policies

by

On Tuesday, the Ontario Court of Appeal handed down its decision in R. v. Cole and in so doing, offered some much-needed clarity on the issue of employee privacy rights in the workplace. 

The Cole case dealt with a high school teacher who was found (by a school board IT technician) to have sexually explicit pictures of a high school student on his work-issued laptop.  The technician made screenshots of the pictures and notified the school principal, who in turn, notified the police.  The principal retrieved the laptop from the teacher and handed it over to the police.  On the understanding that they were dealing with school property and therefore believing that they did not require a search warrant, the police then searched the laptop for evidence of child pornography.  Finding evidence, the police charged Cole.

In a unanimous ruling, the three judge panel held that despite the fact that the laptop was owned by the school, the teacher had some expectation of privacy in the data that was stored on it.  The Court held that the expectation was limited though, and that the teacher could not reasonably expect that the data would be held private from the IT technician whose job was to scan his computer for viruses and install updates to software.  Given the nuanced expectation of privacy, the Court held that the evidence initially obtained by the technician did not infringe the teacher’s expectation of privacy, but the information obtained by the police’s subsequent warrantless search, did.

In coming to the decision, the Court took notice of the computer use policy in place between the school and the teacher.  That policy allowed for liberal personal use of the laptop, including taking it home over the weekends and during summer breaks.  Additionally, the teacher had administrative rights over the school network and additional access to the internet, which other teachers did not, owing to his position on the school’s technology committee. These factors weighed heavily in the Court’s finding of a reasonable expectation of privacy.

This decision supports the employment law advice that we have been offering for many years – specifically that the expectation of privacy will play a key role in the determination of privacy rights in the workplace.  The mere ownership of property such as computers, networks and telephones, does not in and of itself guarantee that information stored on that property belongs to employers.  Clear, well-communicated and fair policies are key to setting expectations.  We have long advocated (and provided) policies and procedures that reflect the reality of the work environment and provide for employee consent and confirmation.  Clarity is key – it is important that both the employer and employee know what is acceptable use and where privacy rights lie – before data starts to accumulate.  The Court of Appeal decision confirms that and makes it that much easier for us to advise employers on exactly where they stand.

Scott R. Young

Jamming – Not the Bob Marley Kind

by

I was reading an article the other day about the proliferation of GPS technology; specifically, how those wonderful satellites sitting in geosynchronous orbit around the Earth do so much more than tell our cars how to get to where we’re going.  The time signals they emit tell our mobile phones which cell towers to talk to, they dictate how our electricity grids and air traffic control systems interact, they prevent fraud in the financial services industry and a myriad other uses.  It was interesting.

One of the problems with that proliferation though, is reliance.  With so much riding on the GPS system, it doesn’t take much to do a lot of damage.  And while the system itself is pretty reliable, the rise of counter-technologies has brought the whole system under increased scrutiny.  GPS jammers and spoofers, while illegal in Canada, are becoming increasingly common.  Sold under the guise of protecting privacy, their targets often lie in the transportation industry, where GPS location devices are used to monitor and track loads and inventory or assess tolls. 

Jammers are widely available on the internet and cost as little as fifty dollars.  Though illegal, their use still continues to rise.  Their potential for harm beyond their intended use is only starting to be realized.  In the last few years, they have shut down airports, emergency pager systems, harbour navigation, ATMs and entire mobile phone networks.

We have clients who use GPS location devices to secure their inventory and manage their services.  Those in trucking need to know when their deliveries will happen and those in vehicle rentals need to know how to locate a stolen vehicle.  Spoofers and jammers seek to undermine those applications of the GPS system.

For our clients, jammers represent a threat to their cash flow and their capital.

While our clients’ employment and rental agreements contain the requisite language with respect to consent for the GPS tracking features, in the past we have relied on the penalty provisions of the Radiocommunication Act to restrict use of jammers.  Given the increased use of these devices however, we are recommending specific restrictions in the applicable agreements, including severe penalties and indemnifications.

We feel these penalties and indemnifications may be necessary in situations where employees or customers use jammers for the purpose of undermining the proper functioning of the GPS location systems and where such jamming creates third party damage.  While the potential damage is incalculable, it is of the utmost importance that those employing GPS location services ensure that they take all reasonable steps to deter jamming and to disclaim responsibility.

Scott R. Young

Your Electronic Footprints

by

I recently had a client send me a news item from a local TV station.  The story was about how GPS-enabled smartphones automatically geotag the pictures they took.  Those geotags, a few bits of longitudinal and latitudinal information that indicate where the picture was taken, embedded in the picture’s metatdata, then presumably followed the pictures as they were uploaded to Facebook, Flickr, or wherever else pictures go these days. 

The piece was couched in the fear mongering that TV news does so well, portraying the issue as a dire threat to our children – with suggestions that strangers online would track them down to where the pictures were taken – where they lived, where they played, where they ate. Now certainly this is an issue, but if you let pictures of your children be circulated to strangers on the internet in the first place, you probably have bigger problems to deal with than just the metadata issue.  Google “privacy settings.”

Fear mongering aside though, there is certainly a privacy issue associated with various electronic activities.  And as people smarter than me spend time figuring out how electronics are going to make our lives more fun (for us) and profitable (for them), the proliferation of new technologies and new applications won’t be slowing down any time soon.  The legal advice is therefore just this – be as aware as you can be about the entire electronic footprint that you are leaving when you interact with technology.

In our practice we exploit, er, leverage, the intersection of ignorance and technology to its full advantage all the time.  We review metatdata in documents to determine version histories or to see which author originally drafted a precedent.  We use social media to gather public information about evil-doers. We sometimes look at the date stamp and country of origin information in e-mail headers. We may even track the occasional IP address if we have to.

The point is, if you’re our client, be aware of the issue.  Be skeptical of new technologies and new uses for old technologies – check them out before you use them.  And if you’re not our client, keep on being stupid.

And I should note that Facebook (currently the biggest online photo repository on the planet) automatically strips the sort of metadata from pictures that indicate where it was taken as of the time of the writing of this post, so wandering gangs of pedophiles will probably not be using it as a tool to steal your children – Twitter and external-load sites like Photobucket though are fair game.  Somehow the news story mentioned above missed that fact.

Scott R. Young

The Accessible Customer Service Standard

by

Many Ontario businesses will have received a notice from the provincial government this week about something called the Accessible Customer Service Standard.  Many Ontario businesses will then be wondering what that is and what it means to them.

Put simply, the “standard” is a legal requirement for organizations in Ontario to establish policies, practices and procedures that govern how they provide goods or services to their customers with disabilities.

Put less simply, the standard requires businesses to put together policies that respect the dignity and independence of persons with disabilities and to put those policies into place before January 1, 2012.

The aim of the policies should be to allow persons with disabilities to access goods and services to the fullest extent reasonably possible.

Generally speaking, the policies should be ones that make sense, and are flexible enough to deal with your particular business environment.  For example, a policy on how service animals or support persons are dealt with, a policy on keeping a pad and pencil by your front desk for persons with hearing impairment to use in communicating with your staff, and policies about how staff are trained to deal with various accessibility issues.

The government notes that more than 15% of Ontarians are currently classed as disabled, and with an aging population, that number will rise significantly in coming years.  With those kind of numbers, the accessibility standard is both a legal requirement and a business must.

That said, the standard does pose some challenges and implementing it will not necessarily be a piece of cake.  Although the government is providing resources to help businesses adjust (at http://ontario.ca/AccessON), some of those resources are a little dense.  I think that the average business person might find the combined 192 pages of the Training Resource manual, the Compliance Manual and the Guide to be a little daunting – and those are the starter documents.  Further, questions about conflicts of rights (for example, where service animals might pose a problem for persons with respiratory ailments) are quagmires even for the most sophisticated business person.

The reality is that this standard, and others like it, are coming.  The customer service standard is the first of several standards that the government hopes to introduce in the next few years.  Future standards will relate to transportation, information and communications, employment and the built environment.

The legislation contains provisions for enforcement and incredibly serious penalties of up to $50,000 per day of non-compliance for individuals, and $100,000 per day of non-compliance for corporations (as well as separate penalties for corporate directors).  The standard is serious business.  This is the way the business landscape in Ontario is evolving and businesses need to adapt.

Our advice is to take a look at the government resources and try to familiarize yourself with the standard and your requirements under it.  If you’re feeling ambitious, try to put together some policies of your own.  Of course, in doing so, you’ll be taking your eye off of what you do best in your business.  Instead,  give your legal counsel a call and talk to them about applying the standard to your particular business.

Scott R. Young

Follow Through

by

In this blog entry, I will tell you one simple rule that is guaranteed to reduce all of your legal fees, increase your protection from liability and ensure that your affairs are in order.  Actually, I already have in the title of this entry – follow through.

If you have been reading this blog for the past few months (Hi Mom!), you will have garnered all sorts of tidbits about what lawyers do and how we do it.  You will understand many of the areas where we can help you do what you do better and you will have some idea of how bad things can get when they get bad.

But the one thing that we can’t do in a lot of cases is finalize the work that we have done.  That part is on you.  I suspect that many people feel that once they have gone to the effort of making that appointment with their lawyer and giving authorization to draft a document or to act on their behalf in some capacity, they can breathe a sign of relief.

In reality, the value of what we do often doesn’t materialize until the job is done.

For example, I usually give my estate clients my standard legal advice after they leave my office, having just delivered their Will instructions – don’t die until we get this signed!  While there is an attempt at levity there, there is also a very serious point – the work that you pay for isn’t doing anyone any good until it’s done.

Unfortunately life gets in the way.  Between that first visit with the lawyer and finalizing the work, things happen.  You may put off an e-mail asking for your instructions until later or you may leave a finished document in your desk drawer, to be signed at some convenient time that never seems to come.

Whatever the reason, if you have retained counsel to review your business processes and make recommendations, but don’t act on them, you have wasted your money.  If you have retained counsel to draft a business agreement or to address a compliance issue, and haven’t signed off on the agreement, you have wasted your money.

But most importantly, delays in finalizing legal work mean that you are not protected, or that the problem that you brought to us, remains unsolved.  This is the biggest issue and the one that can ultimately lead to the greatest cost.

If you have legal work in progress that is all but finished, please follow up on it and do what it takes to finalize it.  You’ll be lucky if you never know how much that might save you.

Scott R. Young

Why I'm glad I practice Business Law.

by

What a crazy week in the headlines – three matters jump to mind that make me grateful I’m a business law lawyer:

 Paris Hilton is being sued for wearing the wrong hair extensions. Really? Perhaps it’s just my advanced age, but I didn’t even realize she was wearing extensions, let along which brand. The lawyer who is suing on this one must have an eagle eye for hair products. I can only imagine the expert reports & cross-examinations at trial: Ms. Hilton, how would you describe your hair? Answer: Hot.

The second matter that has made the headlines is a Canadian case where a soon to be lawyer was awarded $ 6 million dollars in damages for injuries suffered while dancing with a co-worker. This has made me thankful our firm decided to pass on a Dance Off as this year’s summer fun day.

Finally … the Jet Blue flight attendant. This one could have landed on my desk if I practiced in the US and boy would it be fun.

However, in Canada, the flight attendant would no doubt sue for wrongful dismissal and if Jet Blue doesn’t have a written policy against swearing at passengers, stealing a beer & making the most awesome exit from a job ever, the Canadian Courts would likely award damages to the flight attendant for wrongful dismissal. In Canada, the recommended action would be writing the flight attendant a letter saying that this was bad behaviour and asking if they could help him through his anger issues and warning if it happens again he might be fired. If he did it again (and let’s face it, if you get away with that type of act, you’re going to do it again, or go one better) the second warning letter would have to warn that he would definitely be fired if it happens again, but how can Jet Blue help him. Finally, when he exits a third time (hopefully with something better than a beer as it would be his final exit) that would be the time he could be fired without Jet Blue worrying too much about being sued for wrongful dismissal.

Yes, I’m glad I’m a Business Lawyer in Canada, there is only so much craziness I can take and it generally flows out of a contract.

Remote Work

by

As Inga has noted, summertime is vacation time.  For many of us, it’s the time of year when we try to take a week or two and get away from it all.  Cool lakes, Muskoka chairs, quiet sunsets and melodious loons all beckon.  But again for many of us, it’s almost impossible to completely defeat the office tether.  Whether it’s the mobile device that you check your voice and electronic mail on, or the wireless laptop that you use to remotely log in to the office’s virtual private network, the office beckons too.

 

While these technologies have afforded us an incredible opportunity to spend some well-deserved time away from the office and still get work done, they do come with quite a few challenges of their own.  For example, ask yourself if your mobile device use is compliant with your office policies – the policies that we spent so much time working on, and customizing to protect your business.

 

Are your connections as secure as they need to be?  Is the transfer of information compliant with the privacy requirements under PIPEDA?  How about your corporate policy regarding the acceptable use of e-mail and the internet?  How about your business’ confidentiality rules?  Can your devices be remotely wiped of your contacts and your calendar appointments if they are lost or stolen?  Do the devices support encryption for the long term storage of data?    Is your device security based on both hardware and software solutions?  Does the signature file on your mobile phone contain the company’s mandated confidentiality notice?  Does your IT department know about the level of protection that your industry requires?  Do you use your devices on the dock in the same way that you use them in the office?  More importantly – does your staff? 

 

If you answered no to any of these, you may be opening yourself or your organization up to potential civil liability for loss, the degradation of your intellectual property, fines for the violation of federal privacy laws as well as untold exposure from data loss to your competitors or others who mean you harm – a less-unlikely-than-you-think scenario.

 

As remote workplaces become an increasing reality, so do the challenges that come alongside.  Constant vigilance, a well-informed IT department, good lawyers and the occasional audit are the hallmarks of a good organizational attitude towards remote work.  Isn’t it exciting to think that we are only a slight attitude shift and a waterproof laptop away from being able to make every sunny day a possible work-from-the-cottage-day?

 

On, and I should note that this article should in no way be construed as my own personal appeal to spend next summer toiling away from a canoe somewhere on Lake Joseph…

 

Scott R. Young