Solution Manual for Human Resources Management in Canada, Thirteenth Canadian Edition

Chapter 2 – The Changing Legal Emphasis 2-1 CHAPTER 2 THE CHANGING LEGAL EMPHASIS: COMPLIANCE AND IMPACT ON CANADIAN WORKPLACES LEARNING OUTCOMES 1. EXPLAIN how employment-related issues are governed in Canada. 2. DISCUSS at least five prohibited grounds for discrimination under human rights legislation and DESCRIBE the requirements for reasonable accommodation. 3. DESCRIBE behaviour that could constitute harassment 4. EXPLAIN the employers’ responsibilities regarding harassment. 5. DESCRIBE the role of minimums established in employment standards legislation and the enforcement process. REQUIRED HR COMPETENCIES 20100: Conduct human resources responsibilities and build productive relationships consistent with standards of practice with due diligence and integrity to balance the interests of all parties. 20300: Adhere to legal requirements as they pertain to human resources policies and practices to promote organizational values and manage risk. 20600: Promote an evidence-based approach to the development of human resources policies and practices using current professional resources to provide a sound basis for human resources decision-making. 50200: Interpret legislation, collective agreements (where applicable), and policies consistent with legal requirements and organizational values to treat employees in a fair and consistent manner and manage the risk of litigation and conflict. 90400: Manage human resources information in compliance with legal requirements using appropriate tools and procedures in order to support decision making and inform leaders about progress toward organizational objectives. CHAPTER SUMMARY This chapter focuses on the legal environment in Canada. It discusses the multiple overlapping pieces of legislation that attempt to balance employee and employer rights when it comes to human rights and freedoms, employment equity, employment standards, and privacy. The chapter differentiates between organizations that are under federal jurisdiction versus provincial jurisdiction. It discusses the requirement to take steps to protect employees from harassment and discrimination, in order to reduce legal liability. Specific exceptions that allow discrimination on prohibited grounds, based on bona fide occupational requirements, are covered, but so is the requirement to offer reasonable accommodation. The chapter identifies the minimum terms and conditions contained in employment standards legislation and the complaint-based process for violations. Finally, in keeping with the continued growth of technology tools, the chapter discusses how the Personal Information Protection and Electronic Documents Act (PIPEDA) is used to oversee the collection, use, and disclosure of employees’ personal information. Copyright © 2017 Pearson Canada Inc. Chapter 2 – The Changing Legal Emphasis 2-2 LECTURE OUTLINE I. The Legal Framework for Employment Law in Canada Both HR professionals and front line managers/supervisors need up-to-date knowledge of the multiple layers of employment legislation and regulation that affect Canadian workplaces in order to reduce legal liability and protect against expensive lawsuits. Figure 2.1 (p. 27) lists several key pieces of legislation that attempt to balance the rights of employers and employees including the Charter of Rights and Freedoms; human rights legislation; employment standards legislation; occupational health and safety laws; collective bargaining agreements; and employment contracts. See Figure 2.2 (p. 28). The judicial system and special regulatory bodies, such as human rights commissions/tribunals, provide forums for resolving differences between employers and employees. In addition to the legislation above, Canada has also inherited the English system of tort law. Tort law is primarily judge-based law, whereby the precedent and jurisprudences set by one judge through his or her assessment of a case establishes how similar cases will be interpreted. Tort laws are often separated into two categories: intentional torts (for example, assault, battery, trespass, intentional affliction of mental distress) and unintentional torts (for example, negligence based on events in which harm is caused by carelessness). II. Legislation Protecting the General Population Workplace practices are measured against general Canadian legislation that makes it illegal to discriminate, even unintentionally against members of various groups on prohibited grounds. 1. The Charter of Rights and Freedoms – Far-reaching federal law, enacted in 1982, applies to the actions of all levels of government and to agencies under their jurisdiction. The Charter provides fundamental rights and freedoms to every Canadian, including the equality rights found in Section 15, that provide the basis for more specific human rights legislation. 2. Human Rights Legislation – Prohibits intentional and unintentional discrimination on prohibited grounds in employment situations and the delivery of goods and services. Human rights legislation takes its cue from Section 15 of the Charter, but differs in that it applies to every person residing in Canada and is jurisdiction specific; i.e. legislation can vary from province to province/territory (see Figure 2.3, p. 31). Human rights legislation cannot be superseded by employment contracts. 3. Discrimination Defined – Because discrimination nullifies or impairs human rights, both intentional (direct or indirect) and unintentional discrimination are illegal. Forms of intentional discrimination include differential or unequal treatment or discrimination because of association (friendship or other relationship with a member of a protected group). Unintentional/constructive discrimination, also known as systemic discrimination is often harder to detect as it is embedded in policies and practices that appear neutral (see Figure 2.4, p. 33). 4. Permissible Discrimination via Bona Fide Occupational Requirements – A bona fide occupational requirement (BFOR) is a justifiable reason for discrimination due to business necessity, especially a health and safety issue. Discrimination via a BFOR is permitted when reasonable accommodation through adjustment of employment policies or practices is not feasible. Copyright © 2017 Pearson Canada Inc. Chapter 2 – The Changing Legal Emphasis 2-3 The three criteria for assessing the legality of a BFOR, as established by the Meiorin case (Supreme Court of Canada, 1999) are:  The discriminatory policy/procedure was based on a legitimate, work-related purpose  Decision makers/agents believed the requirement was necessary for the role  It was impossible to accommodate employees who could not meet the requirement without undue hardship on the employer. 5. Human Rights Case Examples – The three most common types of complaints heard by human rights commissions/tribunals (see Figure 2.5, p. 35) relate to discrimination and/or failure to accommodate based on:  Disability (roughly 50%) – see Figure 2.6 (p. 37) for duty to accommodate disabilities  Gender, including pregnancy and harassment (roughly 20%) – see Figure 2.7 (p. 38) for examples of harassment  Race or ethnicity (roughly 15%) Other human rights cases have involved complaints in regards to religion, sexual orientation, age and family status. Sound anti-harassment policies (see p. 40), when communicated to all employees and enforced fairly and consistently, can help to create a harassment free workplace. Legislative systems in Canada allow for multiple opportunities for appeal; if HR and managers take a proactive approach to ensuring that all programs and policies are legally defensible, then the risk of becoming involved in lengthy and expensive human rights proceedings can be mitigated. 6. Enforcement – Responsibility for enforcement of the human rights acts and providing a speedy and accessible mediation process for dispute resolution falls on the human rights commission/tribunal in each jurisdiction. These regulatory bodies are also responsible for bearing the costs of human rights complaints brought forward, to ensure financial resources are not an obstacle for potential complainants. Employers have a duty to investigate all claims of discrimination, starting with selection of a workplace investigator (see Figure 2.8, p. 42) Three other obligations of employers include  showing awareness of discrimination/harassment issues prior to the complaint  taking prompt action after the complaint is filed  demonstrating reasonable resolution and communication in regards to the complaint. Two forms of remedies if discrimination is found by the commission/tribunal are systemic and restitutional (see Figure 2.9, p. 43). III. Legislation Specific to the Workplace The Charter of Rights and Freedoms also permits proactive programs that go beyond human rights legislation, in order to remedy pervasive discrimination against four identifiable groups, and for whom the complaint-based reactive process was insufficient in changing patterns of discrimination over time. Employment equity programs are not affirmative action (quotas); their goal is to achieve a balanced representation of designated group members in the organization at all levels. In addition, occupational segregation refers to the existence of certain occupations that have traditionally been male-dominated and others that have been female-dominated. Copyright © 2017 Pearson Canada Inc. Chapter 2 – The Changing Legal Emphasis 2-4 The Plight of the Four Designated Groups  Women – issues include occupational segregation, glass ceiling (see Figure 2.10, p. 44) and equal pay for equal work  Aboriginals – concentrated in low-skill, low paid jobs; unemployment rate is significantly higher and income significantly lower than non-Aboriginals  People with Disabilities – employment opportunities are lower than non-disabled and employment income lags that of non-disabled  Visible minorities – not to be confused with immigrant; visible minorities are defined as all non-Caucasian/non-white persons, other than Aboriginals. Key issue is underemployment relative to their knowledge, skills, and abilities. IV. Employment/Labour Standards Legislation Employment (labour) standards legislation covers all employers and most employees in Canada, both unionized and non-unionized. Employment standards acts set minimum terms and conditions, which can be exceeded by employers, but which cannot be waived by employers or employees. In the case of an employment contract/collective bargaining agreement that exceeds the ESA, the principle of greater benefit will apply i.e. employers cannot revert back to the ESA. Enforcement – Complaints of violation of the ESA by employees against employers must be submitted to the Ministry of Labour within pre-set time limits; fines and restitution up to maximum limits. Employees cannot sue in civil court if they file a claim with the Ministry. V. Respecting Employee Privacy The Privacy Commissioner of Canada and the provincial Information and Privacy Commissioners seek to balance employees’ rights to privacy with employers’ rights to monitor employee activity and protect company resources. New legislation and guidelines continue to clarify what is and isn’t acceptable.  The Personal Information Protection and Electronic Documents Act (PIPEDA) – governs collection, use, and disclosure of personal information. Employees must give consent for collection, use and dissemination of personal information.  Video Surveillance – Companies must be able to show that reasonable alternatives to surveillance were not available. Teaching Tips; Break up the material and shift to active learning by incorporating minidiscussions based on a combination of the Discussion Boxes, Ethical Dilemmas, and Critical Thinking Questions for this chapter and using provincial human rights websites to look at current trends and cases. Ask students to bring in/share related news stories and/or experiences. Many students know someone who has experienced discrimination, despite legislation. Copyright © 2017 Pearson Canada Inc. Chapter 2 – The Changing Legal Emphasis 2-5 DISCUSSION BOX WORKFORCE DIVERSITY: The Evolution of Thought on Sexual Harassment in Canada (p. 39) This legal case highlights the journey taken by two young female restaurant employees who were sexually harassed by a co-worker. It took seven years of decisions and appeals at various levels until, in 1989, the case reached the Supreme Court of Canada who decided that sexual harassment is a form of sex discrimination, therefore illegal, and that employers are responsible for the actions of their employees and can be fined if they do not attempt to prevent or deal with sexual harassment complaints. ETHICAL DILEMMAS 1. Your company president tells you not to hire any gay or lesbian employees to work as part of his office staff because it would make him uncomfortable. What would you do? (p. 41) What you cannot do is follow this order because it is illegal to discriminate on the basis of sexual orientation. You need to educate the president on the law and the potential consequences of violating the law. Depending on your position, you can address the president directly or obtain assistance from senior HR people. 2. Is it ethical to use video surveillance of employees? Do you think employees need to be told of surveillance tools if they are used? (p. 49) It is ethical if it is a business necessity and there is no other reasonable means available; such is the case with casinos. However, Canadian courts have typically decided that video surveillance is not reasonable in most workplaces and that other means of control could have been used. Employees must be made aware of how they are being monitored, and must give consent if there is any possibility that personal and private information might be collected as a result of monitoring. KEY TERMS bona fide occupational requirement (BFOR) A justifiable reason for discrimination based on business necessity (that is, required for the safe and efficient operation of the organization) or a requirement that can be clearly defended as intrinsically required by the tasks an employee is expected to perform. (p. 33) Charter of Rights and Freedoms Federal law enacted in 1982 that guarantees fundamental freedoms to all Canadians. (p. 30) differential or unequal treatment Treating an individual differently in any aspect of terms and conditions of employment based on any of the prohibited grounds. (p. 32) discrimination As used in the context of human rights in employment, a distinction, exclusion, or preference, based on one of the prohibited grounds, that has the effect of nullifying or impairing the right of a person to full and equal recognition and exercise of his or her human rights and freedoms. (p. 31) Copyright © 2017 Pearson Canada Inc. Chapter 2 – The Changing Legal Emphasis 2-6 discrimination because of association Denial of rights because of friendship or other relationship with a protected group member. (p. 32) employment equity program A detailed plan designed to identify and correct existing discrimination, redress past discrimination, and achieve a balanced representation of designated group members in the organization. (p. 44) employment (labour) standards legislation Laws present in every Canadian jurisdiction that establishes minimum employee entitlements and a limit on the maximum number of hours of work permitted per day and/or per week. (p. 46) equality rights Section 15 of the Charter of Rights and Freedoms, which guarantees the right to equal protection and equal benefit of the law without discrimination. (p. 30) equal pay for equal work An employer cannot pay male and female employees differently if they are performing the same or substantially similar work. (p. 45) glass ceiling An invisible barrier, caused by attitudinal or organizational bias, which limits the advancement opportunities of qualified designated group members. (p. 43) harassment Unwelcome behaviour that demeans, humiliates, or embarrasses a person, and which a reasonable person should have known would be unwelcome. (p. 38) human rights legislation Jurisdictions’ specific legislation that prohibits intentional and unintentional discrimination in employment situations and in the delivery of goods and services (p. 30) KSAs Knowledge, skills, and abilities. (p.46) occupational segregation The existence of certain occupations that have traditionally been male-dominated and others that have been female-dominated. (p. 43) Personal Information Protection and Electronic Documents Act (PIPEDA) Governs the collection, use, and disclosure of personal information across Canada, including employers’ collection and dissemination of personal information about employees. (p. 48) reasonable accommodation The adjustment of employment policies and practices that an employer may be expected to make so that no individual is denied benefits, disadvantaged in employment, or prevented from carrying out the essential components of a job because of grounds prohibited in human rights legislation. (p. 34) regulations Legally binding rules established by the special regulatory bodies created to enforce compliance with the law and aid in its interpretation. (p. 29) restitutional remedies Monetary compensation for the complainant to put him or her back to the position he or she would be in if the discrimination had not occurred (this includes compensation for injury to dignity and self-respect), and may include an apology letter. (p. 42) sexual annoyance Sexually-related conduct that is hostile, intimidating, or offensive to the employee, but has no direct link to tangible job benefits or loss thereof. (p. 39) Copyright © 2017 Pearson Canada Inc. Chapter 2 – The Changing Legal Emphasis 2-7 sexual coercion Harassment of a sexual nature that results in some direct consequence to the worker’s employment status or some gain in or loss of tangible job benefits. (p. 39) sexual harassment Offensive or humiliating behaviour that is related to a person’s sex, as well as behaviour of a sexual nature that creates an intimidating, unwelcome, hostile, or offensive work environment, or that could reasonably be thought to put sexual conditions on a person’s job or employment opportunities. (p. 39) systemic remedies Forward-looking solutions to discrimination that require respondents to take positive steps to ensure compliance with legislation, both in respect to the current complaint and any future practices. (p. 42) tort law Primarily judge-based law, whereby the precedent and jurisprudences set by one judge through his or her assessment of a case establishes how similar cases will be interpreted. (p. 29) underemployment Being employed in a job that does not fully utilize one’s knowledge, skills, and abilities (KSAs). (p. 46) undue hardship The point to which employers are expected to accommodate under human rights legislative requirements. (p. 34) unintentional/constructive/systemic discrimination Discrimination that is embedded in policies and practices that appear neutral on the surface, and are implemented impartially, but have adverse impact on specific groups of people for reasons that are not job related or required for the safe and efficient operation of the business. (p. 32) REVIEW AND DISCUSSION QUESTIONS (p. 50) 1. Describe the impact of the Charter of Rights and Freedoms on HRM. Although the Charter of Rights and Freedoms (1982), applies directly only to the actions of all levels of government (federal, provincial/territorial, and municipal) and agencies under their jurisdiction, all Canadian legislation must meet Charter standards in terms of ensuring equality of opportunity. Therefore, the Charter impacts HR in all Canadian organizations through its influence on human rights legislation and employment-specific legislation, such as Employment Standards Acts, health and safety laws, union relations, and laws governing pensions and compensation. In particular, Section 15 of the Charter – Equality Rights prohibits discrimination on the basis of race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability provides the foundation for human rights legislation. Human rights legislation has extended this protection to other grounds, such as sexual orientation, family status and marital status. 2. Differentiate between the following types of discrimination, and provide one example of each: direct, differential treatment, indirect, because of association, and systemic. Direct (intentional) discrimination involves an employer deliberately denying an individual or group fair treatment in any term, aspect, or condition of employment on the basis of one of the Copyright © 2017 Pearson Canada Inc. Chapter 2 – The Changing Legal Emphasis 2-8 prohibited grounds. An example would be a company refusing to hire, train, or promote an individual based because they are female, or Chinese, or are in a wheelchair. Differential treatment involves treating individuals or groups differently in any aspect, term, or condition of employment based on one of the prohibited grounds. For example, it is illegal for an employer to request that job applicants with an obvious physical disability undergo a preemployment medical examination if those appearing able-bodied are not also asked to undergo such an exam, or to offer training to younger workers and not to older workers. Indirect discrimination involves asking another party to discriminate on one’s behalf. An example would be an employer requesting an employment agency to refer only female candidates for consideration as nurses, or instructing supervisors that female managers be excluded from consideration for international assignments. Discrimination because of association is another possible type of intentional discrimination. It involves the denial of rights because of friendship or other relationship with a protected group member. An example would be the refusal of a firm to promote a highly-qualified male into senior management on the basis of the assumption that his wife, recently diagnosed with multiple sclerosis, will require too much of his time and attention, and that her needs may restrict his willingness to travel on company business. Unintentional discrimination (also known as constructive or systemic discrimination) is the most difficult to detect and combat. Typically, it is embedded in policies and practices that, although appearing neutral on the surface, when implemented, have adverse impact on specific groups of people. The outcome is discrimination based on prohibited grounds. Many examples of systemic discrimination can be found in Figure 2.4 on p. 33. 3. Provide five examples of prohibited grounds of discrimination in employment in Canadian jurisdictions. Prohibited grounds of discrimination vary across jurisdictions. Race, colour, age, sex, marital/family status, religion/creed, physical and mental handicap, ethnic/national origin are prohibited grounds (see Figure 2.3, p. 31). Five of the grounds are described with examples. Race/Colour – The British Columbia Human Rights tribunal found that two construction companies had discriminated against 38 Latin American temporary workers by paying them lower wages and providing inferior accommodation compared to European temporary workers on the same project. Sexual Orientation – A lesbian employee alleged that she was harassed by a co-worker, due to her sexual orientation. She made a complaint with her supervisors but felt the complaint was not investigated properly. She alleged that she was given a poor performance review because of her complaint and that her request for a transfer to another work site was denied. Religion – It is a violation of human rights legislation to prohibit Muslims from praying at work and/or wearing a hijab (the head-to-ankle covering that leaves only the face, hands, and feet visible in public (p. 40) Age – In an Ontario case, two older foremen were laid off with retirement packages while two younger foremen were allowed to keep their jobs. This is a violation as human rights legislation does not permit discrimination by age, except for legally mandated minimum age requirements. Copyright © 2017 Pearson Canada Inc. Chapter 2 – The Changing Legal Emphasis 2-9 Family Status – Companies cannot favour individuals without parenting responsibilities over individuals without parenting responsibilities in hiring, promotion or access to training, and career development. At the same time, pay decisions cannot favour employees with dependents over those without dependents. 4. Explain the purpose of employment standards legislation, and the concept of “the greater good” when assessing these minimums. Employment Standards Acts establish minimum terms and conditions for workplaces, covering such things as wages, paid holidays and vacations, maternity, paternity or adoption leave, bereavement leave, compassionate care leave, termination notice, and overtime pay. They also set the weekly and daily maximum hours of work before overtime pay is required. These standards ensure consistency and a minimum level of fair treatment across organizations. The concept of the “greater good” or “greater benefit” means that if an employment contract is more generous than the minimum term/condition in ESA, then the contract has to be honoured. The employer cannot revert back to the minimum. 5. Define “sexual harassment” and describe five types of behaviour that could constitute such harassment. Sexual harassment is offensive or humiliating behaviour that is related to a person’s sex, as well as behaviour of a sexual nature that creates an intimidating, unwelcome, hostile, or offensive work environment, or that could reasonably be thought to put sexual conditions on a person’s job or employment opportunities. Two types of sexual harassment are sexual coercion, which results in some direct consequence to the worker’s employment status or some gain in or loss of tangible job benefits, and sexual annoyance, sexually-related conduct that is hostile, intimidating, or offensive to the employee, but has no direct link to tangible job benefits or loss. Five types of behaviour that would fall under sexual harassment are:  asking/requiring sexual favours in return for favourable performance ratings, pay, and job security (sexual coercion)  unwanted touching (sexual coercion/sexual annoyance)  making sexist comments (sexual annoyance)  displaying pornographic material (sexual annoyance)  telling sexist jokes (sexual annoyance) 6. Define the concepts of occupational segregation, underemployment, and the glass ceiling. Occupational segregation – the existence of certain occupations that have traditionally been male-dominated and others that have been female-dominated, often due to sex-based discrimination Underemployment – Being employed in a job that does not fully utilize one’s knowledge, skills, and abilities (KSAs). Glass ceiling – an invisible barrier, caused by attitudinal or organizational bias, which limits the advancement opportunities of a qualified designated group member. Applies not just to females but also to visible minorities, Aboriginals and the disabled Copyright © 2017 Pearson Canada Inc. Chapter 2 – The Changing Legal Emphasis 2-10 7. What is the test to define if a bona fide occupational requirement exists? What are the three elements of this test? The three criteria for assessing the legality of a BFOR, as established by the Meiorin case (Supreme Court of Canada, 1999) are:    The discriminatory policy/procedure was based on a legitimate, work-related purpose Decision makers/agents believed the requirement was necessary for the role It was impossible to accommodate employees who could not meet the requirement without undue hardship on the employer. 8. What is the role of privacy legislation in Canada? Describe the act that protects employee’s privacy. The Privacy Commissioner of Canada and the provincial Information and Privacy Commissioners seek to balance employees’ rights to privacy with employers’ rights to monitor employee activity and protect company resources. The Personal Information Protection and Electronic Documents Act (PIPEDA) – governs collection, use, and disclosure of personal information. Employees must give consent for collection, use and dissemination of personal information. CRITICAL THINKING QUESTIONS (p. 50) Note: in the first and second printings of the Canadian 13th edition, the headers for the Critical Thinking Questions and the Experiential Exercises were switched. The correct Critical Thinking Questions are listed below. 1. While organizations can hold employees responsible for behaviour in the workplace, the perception that employees are not accountable for their social media presence outside of the workplace is changing. For example, a Crane Operator at Tenaris Algoma Tubes Inc. posted about a co-worker (a “Stocker”), making suggestions of a physically aggressive act and a violent and humiliating sex act that the Crane operator claimed could be inflicted on the Stocker. When the Stocker heard about the comments, she contacted the company, who investigated the matter and subsequently dismissed the Crane operator. The union grieved the dismissal, but an Ontario arbitrator upheld the dismissal, highlighting that the act was in violation of workplace policies and a form of workplace harassment. Research this case and highlight what other companies can learn from this. What policies should organizations consider given this experience? What challenges would an organization have to overcome in order to make the policies you recommend realistic, fair and legally defensible? From this case, companies can learn the importance of having specific policies regarding such issues that all employees need to be aware off, sign off on, and abide by. Of course, the organization would have to ensure that their policy is reasonable in all respects such that it is realistic, fair, enforceable, and legally defensible. Copyright © 2017 Pearson Canada Inc. Chapter 2 – The Changing Legal Emphasis 2-11 2. An employee who has been off for 2 months with a stress-related ailment has just contacted you, indicating that she would like to return to work next week but won’t be able to work full time for another month or so. How would you handle this situation? The organization’s responsibility is to accommodate this individual, because medical disabilities are prohibited grounds for discrimination, and stress-related disabilities have been validated as medical disabilities. Their disability appears to already have been documented previously in order to support the two-month leave, but an update from their doctor may be necessary in considering possible solutions. Reasonable accommodation requires that a range of possible options are discussed, not just the one that the employee would like to have. If the issue is travelling to and being in a busy setting full-time, then, depending on the nature of their job, working part-time from home and part-time in the office might be the solution. If the issue is that they are not yet ready for full day work, regardless of location, then a reduced hour schedule can be negotiated, either a few hours every day or a couple of full-time days per week. Financial support can come from a combination of paid hours, partial sick-pay, and possible partial government assistance programs. The employee should not be financially disadvantaged by returning to work. 3. A supervisor has just approached you to indicate a concern she has with an employee. The supervisor indicates that the employee is often surfing the Internet while at work and fears that not only is this affecting productivity negatively, but is also a violation of the company’s rules for Internet surfing using a company computer. The supervisor would like you to ask the IT team to investigate how many hours a day are logged to non-work – related activities for that employee and also ask for a list of websites that the employee visits. What is the role of privacy legislation from the employer and employee perspectives? What additional information would you need to make a decision about next steps? What recommendations can you make to the supervisor to deal with the situation in the short term? Under privacy legislation, the employer has the right to monitor employee activities, including the use of information technology, in order to run a successful business and prevent against abuse of company resources. On the other hand, employees have the right to privacy; possibly, they are surfing only on their lunch break in which case company time is not being wasted and they are not gaming but are looking up highly sensitive information on a medical or personal issue for themselves or family member that is causing them to be distracted and their work to suffer as a result. They may also be using the Internet for work-related reasons e.g. using professional/technical online forums, so time spent on work-related is often difficult to pin down. The IT team cannot be sent on “fishing” expeditions unless employees have given consent to be monitored because of the risk of personal information being collected directly or indirectly from websites visited. In order to be on solid ground, the company policy should be reviewed to make sure it is specific and records should be checked to ensure that the employee was made aware of the company policy on use of company computers for Internet surfing on a regular basis. This can be established by checking employment contracts, signed declarations from company handbooks and Code of Ethics, and finding out when the policy was last emailed to employees or discussed in an employee meeting. Last, but not least, the traditional approach of sitting down with the employee and asking them why their productivity seems to have dropped lately should definitely be pursued. Maybe they are wrestling with a personal issue or are bored with their job, or are feeling overwhelmed by the job demands but are reluctant to ask for assistance. Data obtained from electronic monitoring Copyright © 2017 Pearson Canada Inc. Chapter 2 – The Changing Legal Emphasis 2-12 can help support a case for sanctions, but cannot get to the root of why the employee is not working as expected. Having a meeting may cause an immediate change in employee behaviour without the need for electronic review. EXPERIENTIAL EXERCISES (p. 51) Note: in the first and second printings of the Canadian 13th edition, the headers for the Critical Thinking Questions and the Experiential Exercises were switched. The correct Experiential Exercises are listed below. 1. Go to your provincial or territorial employment (labour) standards website and determine the following:  Minimum legal age to work in this jurisdiction  Minimum hourly wages  Maximum number of hours that can be worked in a week before overtime must be paid How does this information apply to you and your friends and family? Did you notice anything else that caught your interest that you were previously unaware of? The information they obtain should tell them who in their social group should/should not be working and how much individuals of different ages should be paid. Typically, there is a minimum wage rate for teenage workers and higher rate for adult workers. The information can tell them whether they are being paid fairly by their employer when it comes to overtime. Something they may not have realized is that age discrimination is permitted when it comes to wages – teenagers can be paid less than older workers doing the same job e.g. McDonalds, Tim Horton’s. 2. Prepare a report outlining legally acceptable questions that may be asked at a selection interview with a young female engineer applying for the job of engineering project manager at an oil field in rural northern Alberta with an otherwise all male group. (Refer to Appendix 7.1 on page 179 for help). In their report, they should not have any questions that they would not ask of a male engineer to avoid differential treatment and avoid any questions that bring prohibited grounds into play. This would exclude questions about being the only female in a male group, concerns about managing a group of men, or questions about pregnancy. Legally acceptable questions would include questions about eligibility to work in Canada, interest/experience living in a rural or northern setting, interest/experience as a project manager, and interest/experience in the oil field industry. 3. Working with a small group of classmates, search the Web for a company in your community that has an antidiscriminatory employment program. Contact the company’s HR manager and request more information on the program. Prepare a brief report summarizing its key features. Answers here will obviously vary greatly. Key features may include programs that encourage applications from the four groups described on pages 45 and 46, company outreach programs at schools, videos that show diverse employees at work, mentoring programs, sensitivity training, supervisor/manager training to reduce bias in hiring and performance appraisal. Copyright © 2017 Pearson Canada Inc. Chapter 2 – The Changing Legal Emphasis 2-13 4. The organization you are working for is relatively new and growing and has no HR department. They have asked you to prepare a briefing about what can and cannot be asked during an employment interview. Given that it is a small organization, management usually conducts interviews. You notice a number of managers huffing about how the law doesn’t apply to them and their actions can’t result in a lawsuit. In addition to preparing a briefing about the types of question that can and cannot be asked in an interview, prepare a response to the perception that the law does not apply to the managers in this situation. Their briefing about employment interview questions should draw on Appendix 7.1 on page 179 and the discussions of prohibited grounds and protected groups. In response to the perception that the law does not apply, they can reference the 1989 sexual harassment case where the Supreme Court held that employers are liable for the actions of their employees. Therefore, while employees may not sue managers directly, lawsuits can be filed by employees against the company based on the actions of these managers; if this occurs, then the manager’s employment and career prospects will certainly be affected. They should also be made aware that claims can also be filed through human rights commissions/tribunals and managers will be called to testify in regards to the complaint. In short, they are not untouchable. Looking up recent cases in which managers were demoted or lost their jobs because of discriminatory actions should get their attention. RUNNING CASE: LearnInMotion.com (page 51) Legal Issues 1. Is the Employment Standards Act applicable to this employer, as they are situated in Ontario? As LearnInMotion.com’s management consultant, what areas of the Act do you feel Jennifer and Pierre need to be aware of in regards to their current employee relations issues? Specifically, what areas would you recommend they include in their new human resource policy manual? All employers and employees in Canada are covered by employment (labour) standards legislation. Being located in Ontario makes them subject to the Ontario Employment Standards Act. As they develop their new human resource policy manual, they should ensure that topics such as wages and hours; paid holidays and vacations; leave for some mix of maternity, parenting, and adoption; bereavement leave; compassionate care leave; termination notice and overtime pay are spelled out, especially if they plan to offer more than the minimum terms and conditions required under the Act. They need to be aware that they cannot revert to the minimums if they have offered more generous terms. All future employment contracts should be reviewed to ensure they are consistent with the policy manual and they should stay up-to-date on changes to Ontario’s ESA, updating the policy manual accordingly. 2. Should Pierre and Jennifer put a “respectful workplace policy” in place? If so, develop a draft of this type of policy utilizing the web resources listed throughout this chapter. Even though is not clear whether the vulgarity used by Dan and Alex reflects profanity or discriminatory language (sexist, racist, ageist), there is a risk of offending, humiliating, demeaning or embarrassing either a co-worker or a supplier who comes into the workplace to provide services. The Supreme Court has established that employers are responsible for the Copyright © 2017 Pearson Canada Inc. Chapter 2 – The Changing Legal Emphasis 2-14 actions of their employees. Jennifer and Pierre can protect the company by being pro-active in the development of a “respectful workplace policy”. Having such a policy would help to prevent such behaviour and reduce the risk of a human rights complaint or legal action by employees or suppliers; there is very little downside from implementing such a policy. Websites for the Canadian Human Rights Tribunal, the provincial human rights commissions, and sexual harassment and race relations organizations may contain templates and useful information on how to develop such a policy. Encourage students to compare and contrast templates from different websites. CASE INCIDENT: A New HR Professional’s First Workplace Dilemma (p. 52) 1. Do you agree with how Laura handled this situation? If so, why? If not, what would you have done differently? Students should be encouraged to actively debate how Laura handled this situation. Given that she is new, should this be the first place to start with changes to the manual? Can she establish that it was the Director of Marketing who was responsible for the picture – maybe this was a prank by someone else? Given that she has only seen this once, is a single incident enough to justify action, or should she wait and see if there is a pattern of such behaviour and if other employees are also involved in this type of behaviour? What does “inappropriate” mean? Was this a picture of his girlfriend/wife/partner – does that matter? Is there an expectation of privacy in an office rather than in an open workspace? 2. Is it important for this company to have such a policy in place? If so, how can the employment (labour) standards act in your province/territory help in drafting a policy on appropriate computer use? The Supreme Court has made it clear that it is part of an employer’s responsibility to provide a safe and healthy working environment, and that includes psychological safety. The legal framework for employment that regulates the employment standards act or common law imposes specific requirements on management policies, procedures and practices. Many organizations have moved beyond legal compliance and have begun to initiate and promote workplace initiatives such as appropriate computer use. Copyright © 2017 Pearson Canada Inc.