Current Issues in Employment Law B.C. Legal Management Association October 8, 2014 Richard Press 604.643.6444 Davis LLP
Agenda • Reference Checks • Diversity and Privacy • Performance Management in the Age of Harassment • The Hostile Work Environment • WSBC Harassment Issue Update
REFERENCE CHECKS The secret to working for the Earl of Grantham? A strong reference from a peer
Must You Provide a Reference? • No • An earl could not be compelled to praise an unsuitable employee
What About Today? • Social mores have shifted. • An unreasonable refusal to provide a reference will be sanctioned
Liability For Not Providing A Reference • Extended notice period • Moral damages • Punitive or aggravated damages
Liability for Providing A Reference • If the reference is false or misleading: • Extended notice period, moral damages, aggravated or punitive damages • Defamation • Misrepresentation claim • Liability still arises from a false reference made in good faith
What to Do? • Let’s look at the pros and cons
References - Pros • Increase likelihood of mitigation • A reference helps an employee get a job • A job mitigates potential damages
References - Pros • Impresses a court • No chastisement for failure to provide a reference • Affirms employer acting in good faith
References - Pros • Generates goodwill with employee • Employee less likely to bring an action against a reference
References - Pros • Assists with privacy issues • Provides script for verbal references
References - Cons • Relationship at termination may be poor • Employee’s performance may belie even a marginally good reference
References – Cons • Possible liability for false or misleading statements • Liability uncertain in Canada • No cases quite there yet in Canada • American cases do exist
What is a False or Misleading Statement? • Chronically absent ? • A man like him is hard to find • It seemed her career was just taking off • Dishonest ? • He's an unbelievable worker • Her true abilities were deceiving
(Just in case you need these) • Unproductive ? • You would indeed be fortunate to get this person to work for you • All in all, I cannot say enough good things about this candidate or recommend him too highly • Alcoholic ? • Every hour with him was a happy hour • We often found him loaded with work do to
Verbal References – Pros and Cons • Same pros as for written references • Cons are increased privacy concerns
Top 10 Take-A-Ways 10. Offer a Reference 9. Copy the Employee 8. Centralize 7. Do Not Leverage
Top 10 Continued 6. Be Consistent 5. Quote Yourself 4. Do Not Mislead (including by omission) 3. Written References Are Scripts
Top 10 Continued 2. Consider Waiver and Consent 1. Communicate
DIVERSITY AND PRIVACY • Data collection and use • Diversity metrics
Why Track Diversity? • The US does it • US clients may demand the same information from Canadian suppliers • The Federal Government requires it for large contract suppliers • Federal Contractors Program (FCP) • > 100 employees + > $1m contract
Risks for Implementing Diversity program • Human rights complaint • Allegation diversity data used for employment reason • Privacy complaint • Reasonableness of collection • Safeguards to data • Use and disclosure of data • Costs and resources in collecting data
Hurdles to Tracking Diversity in Canada • Lack of legislative support • Lack of infrastructure • Lack of data analysis
Lack of Legislative Support • Lack of legislative scheme requiring businesses to contract with minority suppliers • Employment equity in other provinces, but does not require supplier compliance
Special Programs • BC human rights legislation allows for “special programs” • Special programs allow discrimination to favour minorities • For example, can give preferential hiring to aboriginal persons
Special Program Applicability • Not sufficient for the business to hold an intent of ameliorating historical discrimination or to implement such a special program in good faith. • Business must either apply to the applicable human rights body in advance for permission or be prepared to justify the special program’s goals should they be challenged. • Businesses usually justify such special programs through empirical data or some other factual basis demonstrating their programs address one of the above stated objectives.
Special Program Justification • Relieve hardship or economic disadvantage; • Assist disadvantaged persons achieve, or try to achieve, equal opportunity; or • Help eliminate discrimination
Special Program Application • Nature of the sponsoring organization. • Accountability and monitoring. • Identification of disadvantaged individuals/groups. • Benefit of the program. • Goals, timetables and anticipated results. • Duration of program. • Eligibility criteria for disadvantaged individuals/groups. • Identification of third party interests (such as local native bands).
Lack of Infrastructure • US collects data on diversity • National Minority Supplier Development Council, Inc. ( NMSDC ) • NMSDC founded 1968 • Members do $101.1B in business (2009) • Canada lags • Canadian Aboriginal and Minority Supplier Council ( CAMSC ) • A decade old • 39 members (2011)
Why Good Infrastructure is Important • Data collection can be complex • What is a “minority”? • CAMSC has an 8 page questionnaire • Data collection can lead to liability • Privacy issues • CAMSC has a 1.5 page release
Lack of Data Analysis • Which minorities are important? • Religion? • LGBTQ? • Political belief? • Family status? • Marital status? • Conviction for an unrelated criminal offence?
Data Analysis cont’d • Are all minorities under-represented everywhere? • Who is under-represented in law? • Where is this under-representation?
No Data Tracking • Unlike the United States, Canada does not know which historically disadvantaged groups remain disadvantaged, or to what degree. • Canada also does not know whether disparity with respect to a specific minority is regional or national.
Recommendations • Do not track diversity • If you must, do it anonymously • Limit tracking to FCP criteria: • Women • Aboriginal status • Visible minorities • Disability
PERFORMANCE MANAGEMENT IN THE AGE OF HARASSMENT (Seriously, What’s the Point?)
You are stressing me out! I am Would you just being do your #&$%!! harassed! job!
Employer Rights • Require employees to work • Manage the business • Comment on performance • Conduct performance reviews • Discipline
Employee Rights • Freedom from harassment/abuse • Reasonable demands, communicated clearly • Assistance/Coaching • Fair performance reviews • Accommodation
So Why Manage Performance? • Assist the Employee • Build a Case For Cause • Defend a Decision to Terminate
What is Required to Prove Cause? • Test for incompetence • Will you pay anyway? • How long will it take?
Better to Cut Your Losses? • Benefits of an employment agreement • Probationary period is your friend
What Are the Take Aways • Know your goal • Know your risks • Decide on a plan • Know when to cut your losses • Employment Agreement • Up to date Policies
THE HOSTILE WORK ENVIRONMENT • Why can’t we all just get along? • Contractual Liability • Tortious Liability • Statutory Liability • Other Liability
WHY CAN’T WE ALL JUST GET ALONG? • No employer wants to be mean (well, � most do not) • Main reasons for conflict: • Desire for efficiency • Human nature
HUMAN NATURE • Piresferreira v. Ayotte 2010 ONCA 384 • Manager: “critical, demanding, loud and aggressive” • Employee: “nervous and sensitive, not taking responsibility for problems but instead blaming others, and not dealing well with criticism” • Combination: “The two personalities could hardly be less complementary”
Bottom Line - Causes of Conflict • Efficiency does not require abuse • Explore alternate models to motivate employees • Human nature frequently leads to conflict • Watch for and manage that conflict
CONTRACTUAL LIABILITY • Duty of good faith • Constructive dismissal
Duty of Good Faith - In Termination • There is a duty of good faith in termination • During a termination, an employer must: • Act fairly • Be forthright • Breach of duty of good faith in termination will lead to increased liability (“moral” or “Honda” damages)
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