Employment issues

Last week’s televised revelation by David Letterman regarding his affairs with former staffers has brought considerable attention to the issue of workplace romance – and all of the problems that come along with it.  But from a legal perspective, how should you, the employer, be handling this thorny issue?

Statistics indicate that the trend towards relationships in the workplace is increasing in both small and large businesses.  The likelihood that the issue is one that you will have to address (if you haven’t already) is rising.  There is, however, only anecdotal evidence as to the cost of this trend to the businesses themselves.  What is certain is that a failure to plan will be costly.

The potential exposure is obvious – claims against the employer for taking aggressive action in either forbidding the inevitable relationship or in trying to limit its effects, sexual harassment claims against senior employees, the loss of real dollars in terms of diminished productivity, the secondary effects in the workplace of an affair gone wrong…the list is endless; there are myriad ways in which workplace romance can harm the bottom line.

On the flip side, relationships are part of the human experience, and even this skeptical lawyer can see that there is a potential bottom-line benefit to a workplace that has a positive, but professional, attitude towards office romance.  The key to a favourable outcome in all cases is the appropriate management of the issue.  Not to be confused with the appropriate management of the relationship, management of the issue will ensure that key players in the workplace are well versed in the dos and don’ts of office relationships.  Proper management will not play Cupid; nor will proper management transfer amorous employees to the corporate outpost in Anchorage.  Proper management means considering the business and legal effects of each situation on its own merits and acting, or not acting, accordingly.

If in doubt, speak to us to ensure that your Code of Conduct, if you have one, is appropriate for the circumstances and doesn’t overreach its intended goal.  Make sure that your managers understand their obligations and the limits of their legal (and moral) authority.  Review your internal conflict resolution procedures with us.  We’re here to help.

Scott R. Young

Word out of the newspapers this morning is that H1N1 is now in the Greater Toronto, Hamilton & London areas of Ontario.

While you likely have a sense of what this means for you in your personal life (I suggest buying stock in antibacterial gel companies) you may not have a sense of the implication this has in your business.

Before getting into the technical legal cautions, let me suggest that you apply common sense before “getting all legal” : it is in no one’s interests to force sick people to work or to work if you are sick, thereby helping H1N1 spread.

This is not your average flu – it hits 19 – 50 year olds (gack, that includes me) hardest. We have 12 million people in Ontario. This disease will cause many to be on respirators: we only have 1200 in Ontario.

Now that I have scared you with facts, let me bore you with the legal end of this.

As an employer you cannot quarantine staff. If you send people home, you must pay them or risk a constructive dismissal law suit – the specifics of what you must pay them depend on your contract or lack thereof with the employee, the size of your business and the nature of your business. If you are not sure what these obligations are, contact either myself or Scott Young () and we’ll discuss the specifics of your situation.

As an employer, you owe a duty, not just to the sick staff, but to protect the healthy staff from getting sick – this is a legislative duty under the Occupational Health and Safety Act – don’t take this duty lightly. A relatively easy way to protect everyone, or start down that path is ensure everyone has hand sanitizer at their work station and uses if after shaking hands, touching door knobs, etc. Have anti-bacterial wipes available at each work station as well and instruct staff to use them when the start, at lunch and at the end of day – let’s not talk about how many germs live on keyboards.

Regardless of the size of your business, have a plan. Ensure key people can work off site if they need to be home to get away from an outbreak or because they are ill – this can be easily accomplished using remote login software for many job functions.

We all need to ensure that this potential pandemic is as limited as possible – it effects our economy, it effects our lives – we’re here to help you do your part if you need us.

Inga B. Andriessen
Senior Lawywer

Many employment contracts contain provisions restricting the ability of the employee to compete directly with an employer following the termination of the employment agreement.  The law has always been at least slightly uncertain in this area as courts have often had difficulty finding the appropriate balance between the right of an employee to earn a living and the right of an employer not to have the investment that they have made in an employee turned against them.

 

Recent caselaw suggests that there are circumstances where a non-competition agreement will be held up by the courts, and others where the agreement will be set aside.  The analysis is based on the details of the employment relationship in question and the nature of the non-competition agreement.

 

In determining whether an agreement is reasonable, the court will look for a legitimate business purpose for the agreement.  If a business can demonstrate real harm that could come from an employee competing against it, in the context of a well-drafted agreement, then the courts are likely to enforce.  However, where a blanket clause that thoughtlessly restricts all competition by a former employee is dropped into an employment agreement, then a court is likely to set that clause aside.

 

When advising clients on how their non-competition agreement should be drafted, the first question we ask is if there is an element to the business that actually requires this sort of protection.  If there is, the next step is to find out enough about the nature of the business so that we can craft an agreement that is as limited in scope as possible, while still protecting the business as strongly as possible.  This includes considerations on the length of time needed to restrict competition, as well as the realistic geographic protection that requires protection.

 

The worst type of non-competition agreement is one that has been cut and pasted from another agreement or one that isn’t hand-crafted for the employment relationship in question.  If it is worth it to you to add a non-competition clause to your employment agreement, then it is well worth it to talk to us about the right agreement for the job.

 

Please feel free to contact me by phone or at with any questions or comments.

 

-Scott R. Young