Black's American Lawyer

In his blog yesterday, Mark Steyn, discusses the failing health of Conrad Black's American lawyer, Ed Genson. Genson apparently suffers from a neuromuscular condition which makes it difficult for him to walk or stand for any length of time. Genson has required breaks during the proceedings to deal with blinding headaches which make him lose his train of thought. All of this has made for closing submissions that have been difficult to follow. Steyn wryly notes: "It would be a cruel caprice for Conrad Black to be sentenced to a century in jail because his lawyer was sick on the big day."

Interesting that in Ontario, the Emergency Leave (sick leave) provisions of the Employment Standards Act do not apply to lawyers -- for precisely the reason Steyn sets out.

CIBC Class Action

The big news in employment law recently is the class action suit against the CIBC for unpaid overtime. The suit, launched on behalf of a class of 10,000 employees by labour law firm Sack Golblatt and Mitchell and class action frim Roy Elliot Kim O'Connor, seeks $600 million in damages based on hours worked in overtime but not paid.

In Canada, employment law is governed by both the federal and provincial legislative regimes. Most employers are governed by provincial legislation; however, those which fall within the federal jurisdiction include the banks. Thus, they are governed by the Canada Labour Code. Section 169 of the Code puts the maximum number of hours in a day at 8 and in a week 40. Section 174 requires that hours worked in excess of the maximum be paid at the rate of one and one half times the regular rate. The employer may apply for extensions on the maximum hours and may be able to average hours of work over a period of time. There are also exclusions of certain classes of employees from these provisions. Provinically, the exclusions are extensive; however, on the federal level it is quite restricted.

Absent a defence on those grounds, the CIBC might be able to point to employment contracts which have included the overtime; however, this seems quite unlikely (I have reviewed many of their contracts and have never seen such a clause). The bigger issue at this point will be whether or not the class gets certified. What this means is that the court must approve the action proceeding as a class rather that as individual lawsuits. In two similar cases against Wal Mart in the United States, one court allowed the class action (Missouri) and one did not (New York). There have also been other similar actions against Wal Mart in other states. In New Jersey the court commented on the rationale for certifying the class: "By equalizing adversaries, we provide access to the courts for small claimants. By denying shelter to an alleged wrongdoing defendant, we deter similar transgressions against an otherwise vulnerable class." This point is critical because it is unlikely that individuals will pursue the Bank for small amounts owing.

Although the market appears to be recovering, the share stock of CIBC dropped by approximagely 2.5% when the suit was announced. This would represent a value in excess of the $600 million being claimed.

Go Ask Alice

One pill makes you Larger
And one Pill Makes You small

Prescriptions to those Alice in Wonderland pills seem to be needed in the workplace when it comes to breast size. Madison Square Gardens was in need of the larger pills when they allegedly required their New York Ranger cheerleaders to stuff their bras. Courtney Prince, one of a dozen skating cheerleaders, alleged in an $800,000 discrimination suit that in addition to padded bras, the Rangers required that they wear fake eyelashes, hairpieces and that they lose weight when required.

A German real estate brokerage, on the other hand needs the pills to make you smaller, when they apparently fired a real estate agent whose breasts were too large. “Annina Ulrich, 29, says her boss told her that her breast implants were not an asset and were damaging the company's image. Annina, who also works as a model, has admitted she is "addicted" to breast surgery which has increased her breasts to a massive 42 H cup.”

In Ontario, focus on breast size for employment purposes would clearly be an issue of discrimination given that it is based on a prohibited ground in the Human Rights Code. One could classify it in one of several ways: It might be sex discrimination, i.e. applying only to women, sexual harassment, that is, the employer’s conduct is of a sexual nature, or potentially even based on disability.

What employer’s do in practice, of course, is as well described by the end of the Jefferson Airplane song (where the opening lines of this post come from) Go Ask Alice:

When Logic and Proportion
Have Fallen So I’ll be Dead
And the White Knight is talking backwards
And the Red Queen’s on her head
Remember what the dormouse said
Feed Your Head

Capital Punishment

Spending one’s own money wisely isn’t always an easy task, spending other people’s money wisely perhaps even more difficult – but $7.2 million on lottery tickets? That’s what two employees at a bank in China are accused of doing. "Ren Xiaofeng, 34, and Ma Xiangjing, 37, were vault managers when they started "borrowing" money from the vault to play the state lottery." The two employees had recently been promoted to the position of vault manager; both had keys and both had combinations. They conducted their heist after hours by cutting electricity so that surveillance cameras would not operate.

Stealing from one’s employer has traditionally received relatively harsh sentences as I highlighted yesterday. The employer must be able to rely upon the trust in the relationship. In one recent Ontario case, an employee was accused of, and fired for, being a "time thief"; he was apparently taking longer on his breaks than allowed. In assessing whether the employer had just cause, Justice Echlin began his decision by stating: "Just Cause is the capital punishment crime of employment law." In labour circles termination of employment has long been referred to as industrial capital punishment.

For the two chinese workers it is not only their employment that risks termination – but their lives. If convicted of the theft, the workers face capital punishment – the real kind.

You don't tug on Superman's Cape

Today Coca Cola opens what has been described as the "first corporate museum", called The World of Coca Cola. http://www.woccatlanta.com/ It is perhaps with that sense of gravitas that can only come from a museum with significant cultural artifacts that Judge Owen Foster sentenced a secretary at Coca Cola to eight years in prison for attempting to sell Coke’s secret formula. Going beyond the guidelines for such an offence and indeed significantly over the 63 -78 month range suggested by the prosecutor, Judge Foster stated: "This is the kind of offence that cannot be tolerated in our society."

Compare this to sentences handed out in cases of other important cultural artifacts:

• Art Collector Stephane Breitweiser, who had stolen 238 masterpieces from various European museums, was sentenced to 26 months.
• A man convicted of inflating bids in hundreds of internet art auctions, including the sale of a phony Richard Diebenkorn painting on Ebay, for a net profit of $450,000 ,was sentenced 46 months in prison.
• Confessed map thief Edward Forbes Smiley III, who had admitted stealing 98 rare maps from the New York and Boston Public Libraries, libraries at Yale and Harvard, the Newberry Library in Chicago and the British Library in London, was sentenced to 42 months in prison. Forbes Smiley was described as "thief who assaulted history, damaged institutions in myriad ways, violated public and professional trust, and drastically set back scholarship." In passing sentence Judge Arterton "said she ‘felt the awe’ of ‘maps of such antiquity, much older than America, reflecting the timeline of knowledge."
• A sophisticated group of five looters based in Las Vegas pilfered some 11,000 native artifacts - mainly prehistoric scrapers, grinders, and arrow shafts - from federal land in four states. Tim Canaday, an archaeologist with the federal Bureau of Land Management stated "In 25 years as an archaeologist, I'd rarely seen items of that quality," The ringleader, Bobbie Wilkie, pleaded guilty to causing more than $500,000 in damage to federal land and was sentenced to 37 months in jail.

The Coca Cola secretary attempted to sell the recipe to Pepsi which "warned Coca-Cola that it had received a letter in May 2006 offering Coca-Cola trade secrets to the "highest bidder" One presumes that Pepsi didn’t take it because they didn’t need it. If sophisticated technology that is capable of mapping the human genome, wasn’t able to determine the ingredients in coke . . . well that would be something to be in awe of. Perhaps worthy of a novel and film on attempts to crack "The Coke Code".

Hook Sett and Gossip

The “Hooksett Four” appeared on Good Morning America this morning to discuss the fact that they had been fired for gossiping. The four women, employed by the town of Hooksett apparently discussed amongst themselves the rumour that their boss, David Jodoin, was having an affair with another employee. While this is interesting in the gossip department it is not entirely news in the employment law department– especially in the U.S. where “at will” employment is the standard in many states. That means that anyone can be fired at any time for any reason – save and except human rights issues. The law for non union employees in Canada is not entirely dissimilar. What is required here in cases where the employer doesn’t have cause, is reasonable notice of the termination or payment in lieu thereof. The question that would be addressed here is whether or not gossiping about the boss amounts to just cause.

The first issue to be addressed here is whether or not the employees are free to speak. As I wrote on May 11th, there have been a number of cases where employees have believed that they have a moral obligation to warn the public of some illegal activity that the employer has engaged in. In each of the cases the employee ultimately lost. That should make it pretty clear that there is no freedom of expression in the workplace. In his forthcoming book, Speechless: The Erosion of Free Expression in the American Workplace, Professor Bruce Barry suggests that employers have far too much control over what employees can say. But, as Rutgers human resources professor, Barbara Lee states: “employers have a right to say work time is for work.”

There have been cases in Canada where employees have been fired for disseminating crude material about employees via e-mail. In one case the employees in question substituted a name in a crude joke with that of an employee and circulated it. The court held that sending the-mail by itself may not have amounted to cause, but, added together with the employee’s dishonesty about it when asked, was.

As I noted in my posts on Imus (April 25) , the law in Canada requires that cause be assessed using a contextual approach. It is entirely conceivable that the four women were concerned about a workplace romance that may have been uncomfortable for them. In one British Columbia case, a manager was fired for having an affair with a subordinate and then lying about it. After the affair ended the estranged lovers were not geting along. The employer investigated and was told by "employees in the branch, such things as it was 'not a tolerable place to work', that 'leadership is lacking – a soap opera', and that it was like “elementary school – the two most important people in the branch aren’t working together'." The court held that the affair was a significant conflict of interest.

Ding Dong the Witz is Gone

Ding dong the Witz is gone, the Wolfowitz, Paul Wolfowitz. Ding dong Paul Wolfowitz is gone.

One assumes that that World Bank employees will be singing that refrain or something similar as their campaign to "fire their boss" (see my posts "Mutiny" and "Blue Ribbon" below, ) seems to have taken hold. Bank president Paul Wolfowitz announced last week that he would step down at the end of June. In its report, the CBC notes:

His personal role in cutting off bank funds to allegedly corrupt African
governments opened him to charges of hypocrisy, on top of a conflict of interest
when his role emerged in getting his girlfriend a big pay raise and a new job.
His resignation letter says he'll leave office at the end of June, but his
enemies can be expected to keep up the pressure for an earlier, more humiliating
departure date.

One expects that his enemies' intentions notwithstanding, the 63 year old Wolfowitz, who has had a long and exceptional career in government and academia, will land on his feet somewhere on the World's stage.

And let us remember that we are not in Kansas anymore.

Not in Homer’s Springfield

Any Simpson’s fan knows that Police Chief Clancy Wiggum has a loose association with the written law. But generally justice prevails. In his own department the chief has variously hired townspeople to help out with the work and there seems to be few employment problems. Marge was a police officer for a while and though she suffered some discrimination at the beginning she was ultimately accepted into the force. Now it seems a "matron" who works for the Springfield (the real one in Massachusetts) force believes she is being discriminated against and is looking for a lawyer to help her win "$10 million plus" for the humiliation she suffered during an as yet undisclosed workplace incident. Following the incident, the worker was sent home and replaced by a younger per diem matron. I know that in the last episode of the Simpson’s, family pet Santa’s Little Helper was recruited to the force and he too left in disgust after his hardwork in arresting a drug dealer proved fruitless because he had broken the Police Code during the arrest.

Superannuated

Superannuated. That is the word that came to my mind when Denny Crane spoke to his partner Shirley Schmidt in this week’s Boston Legal. Shirley is chastising Denny for firing a shotgun in the office and taking his pants off in a judge’s office last week. Denny tells Shirley that they are getting old. They don’t need to work. They have money. But they need to feel relevant. Crane says that everyone used to want him on their case, now no one does. And although he plays a buffoon, he is portrayed as a lawyer with some 6000 wins under his belt and no losses. Clearly, he could still be relevant. But he is old. Crane repeats that to Shirley several times to make the point.

It is uncertain what age the Denny Crane character is supposed to be. I would have placed him, together with his other name partners in their 60's. I was surprised to learn that William Shatner is 76 years old. There’s an interesting contrast in the fact that Shatner is as relevant today as he was as a young Captain Kirk. In his real life he is not superannuated – though certainly, he has endured some post Star Trek ignominy, seemingly being the national Schadenfreude target for a period of time. But he has transcended that.

Literally, the word "superannuated" means beyond the years or over the years. Too old. Some definitions state "no longer useful". Denny’s speech is reminiscent in its feel to the whole character of Willy Loman. Of course, with Loman the usefulness, or relevance of his entire life is in question – but the spot light seems to get turned on to it as he ages. There is no longer any possibility that he will succeed. With Crane it seems to be that age is what has him put to pasture.

With mandatory retirement now illegal in Ontario – we will likely begin to see more and more people working past 65. But like all forms of discrimination – making it illegal doesn’t change discriminatory attitudes.

There is a curious and somewhat disguised justification of this discriminatory attitude in the university professor retirement cases, McKinney and Dickason. Both those cases held that the mandatory retirement provisions were a reasonable restriction on the right to be free from discrimination. The basis of the decisions revolves around the tenure system. It is argued that knowing that mandatory retirement will bring the employment relationship at an end at a fixed date will allow the tenure system to operate because employers will not look to subvert it by means of evaluation or a hyper vigilant search for cause. In other words, it is accepted that the professors are no longer useful because they have aged, but if they can’t be gotten rid of by mandatory retirement there is always the abuse route. For in essence, that is what the SCC is saying. The court has taken the tenure shield, turned it into a sword and then stabbed the professors with it. Hoisted with their own petard and all that.

Perhaps the best course for Denny Crane is to take on an age discrimination case and make it the most brilliant of his career.

Flick off Asshole

Stanford Engineering professor, Bob Sutton, has just released his new book: The No Asshole Rule: Building a Civilized Workplace and Surviving One that Isn’t. Great title. Great topic. I repeatedly tell my students that the greatest blight in the workplace today is "stupid management". That phrase coming to me many years ago from a student, a long time trade unionist, who, bored with the Socratic Q & A I was doing to get students to understand why workers joined unions, finally and sagely summed it up: "stupid management".

Sutton doesn’t distinguish between co-workers and bosses – indeed he begins the book with a personal anecdote in which an asshole colleague sucks the joy right out of him immediately after he had received a teaching award. Even customers can be certified assholes in Sutton’s workplace. Sutton defines asshole by using two tests:

Test One: After talking to the alleged asshole, does the target feel
oppressed humiliated, de-energized or belittled by the person. In particular,
does the target feel worse or better about himself or herself?

Test Two: Does the alleged asshole aim his or her venom at people who
are less powerful rather than at those people who are more powerful.

I have been unable to find a legal definition for the word "asshole" – though there are numerous cases where people have been fired for use of the word "asshole". In several of these cases the termination was upheld. My favourite involved this exchange between an employee and his supervisor while in line at a 7-11 store:

Employee: How are you asshole.
Supervisor: Pardon me.
Employee: How
are you asshole. Remember me. Accusing me of being absent. Your day is coming.
Assholes like you, as long as you are in this company I’m going to chew you up
and spit you out. You treat us like dogs.
Supervisor: I don’t appreciate your
comment.

The employee was suspended for seven days as a result of the exchange and that suspension was upheld at arbitration. Presumably the arbitrator hadn’t read the Nova Scotia case where the court held that to tell your boss to "fuck off" while off duty fell within the employee’s freedom of expression and right to privacy. In that case, the court defined the phrase "fuck off" and determined that the word "fuck" was the worst of the dirty words. In fact, in another case where the employee hurled obscenities (including the worst of the dirties) at his boss and then shoved him twice, the court held that it was a bad day and didn’t amount to cause for dismissal.

Nevertheless, the word should be assessed in its own right. The American Heritage dictionary provides three definitions: (1)The anus, (2) A thoroughly contemptible, detestable person, and (3) The most miserable or undesirable place in a particular area.

Thus, as a personal insult to one's boss, "asshole" would seem to be fairly high if rather mundane. But one would think that the common use of the word would have devalued its currency. As Wikipedia notes, the word has been on televised comedy sketches often. The television cartoon Southpark truncates the word to "assh. . . " trying to make it both common and obscene at the same time.

In an article I read recently regarding the flick off campaign in Toronto, that point was made, that it is hip to swear but if the word is too common it is no longer hip. Thus. the hipster must maintain fine balance between forbidden and common. With Sutton's book on the shelves, surely the word will become so mainstream that insulters will have to be a little more creative.

Mother's Day

As all mothers know, the day’s work is pretty consistent with the old adage that "a man may work from sun to sun but a woman’s work is never done" CNN reported recently on a study done by Salary.com:

The typical mother puts in a 92-hour work week, the company concluded, and works
at least 10 jobs. In order of hours spent on them per week, these
are:housekeeper, day-care center teacher, cook, computer operator, laundry
machine operator, janitor, facilities manager, van driver, chief executive
officer and psychologist. By figuring out the median salaries for each position,
and calculating the average number of hours worked at each, the firm came up
with $138,095 -- three percent higher than last year's results.
Even mothers
who work full-time jobs outside the home put in $85,939 worth of work as mothers

One survey participant who also worked outside the home declared 119 hours of work per week. With 168 hours in a week, that leaves 49 for everthing that wasn't work, i.e. 7 per day which is what the typical night's sleep would be. If this mom took out time to eat -- let's say an hour a day. What about fitness? Did she take any time for that? Meditation? Prayer? The truth is that for many working parents, especially single parents, it pretty much feels like there is no time for anything else in your life.

The concept of work life balance seems a little meaningless against a background like that. Though it is something that more and more employers are dealing with. Clause are being inserted in collective agreements to recognize that there should be accommodations made to ensure that balance is possible. Flexible hours, home work, on site day care are examples of the types of things that might help reach this balance.

In 2001, HRDC did a study on work life balance and found that the most common problems that employees encountered in achieving any balance were:

Heavy workloads
Cultures that do not support balance
The perception that one has to choose between career advancement and balance
Constant change
Management that does not support balance
Lack of policies
Temporary work
Work-related travel

The study concluded that to reduce work-life conflict and improve overall quality of life, employers need to focus their efforts on four sets of initiatives:

increasing the number of supportive managers within the organization;
providing flexibility around work;
increasing employees' sense of control; and
focussing on creating a more supportive work environment.

And even when that happens, Mom is still going to take on all the roles described in the salary.com at home. All mom's deserve recognition for their work.

Mutiny, Fragging and Firing your Boss

A recent article in the North Jersey record recounted the story of an employee, a climber of sorts, who worked hard and managed to get herself a promotion. But according to management consultant, John Mckee, she suffered from two of the seven deadly sins: greed and gluttony. The executive, McKee states "believed she was capable of more than the others around her, and they collectively, somewhat unconsciously, ensured she would fail until she was unable to get anything done. ... She was indeed let go.''

What happens when the sheep don’t like the shepherd? On May 8th, I wrote about the World Bank staff commencing a blue ribbon campaign against their boss, Paul Wolfowitz. Obviously the sentiment that your boss is incompetent is relatively common though may not get expressed so overtly as at the World Bank. According to a 2003 survey of 826 Human Resources directors by Right management 40% of new leaders fail to meet expectations. And that’s from the corporation’s view point. It would certainly be higher from the employee’s.

Aside from blue ribbon campaigns and sabotage campaigns is there anything an employee can do to get rid of the boss? Employer-employee.com has an article on how to fire your boss. It suggests documenting bad behaviour and taking it to HR or the next level of management. They also suggest that the employee not let the boss’ actions get to them, thus taking away the boss’s steam which will eventually have them quit.

Of course in other venues, waiting that long could prove fatal and workers found other ways to deal with the problem. For example in the Vietnam war, the term "frag" was used to describe killing an " unpopular officer of one's own fighting unit, often by means of a fragmentation grenade. A hand grenade was often used because it would not leave any fingerprints, and because a ballistics test could not be done (as it could to match a bullet with a firearm). A fragging victim could also be killed by intentional friendly fire during combat. In either case, the death would be blamed on the enemy, and, due to the dead man's unpopularity, it was assumed no one would contradict the story."

Of course, the concept of Mutiny is not new and has been used in the military and merchant marine worlds to describe the crew turning against the captain. Our own Hudson’s Bay being named after a ship captain who was set adrift by his crew in 1611.

By somewhat more peaceful means, aribtrator Elaine Newman, in a case between Tenaquip and its union, determined that she had jurisdiction to order the company to fire its supervisor. The union alleged that the supervisor had engaged in a course of harassment assault and batter against an employee and the employer had thereby created an unsafe environment.

Jailhouse Rock -- Against Harper

RCMP went into the workplace (Department of Environment) Wednesday and arrested and handcuffed 27 year old Jeff Monaghan, self described as "the lowest-ranking temp employee in the department and possibly the entire government." Monaghan is accused of leaking a copy of the Government’s Eco Action plan to the media and to environmentalists. According the the RCMP, "An employee who violates the terms of their workplace security clearance, including the release of secret documents, may be subjected to legal consequences, including criminal charges"
Mr. Monaghan, when not the lowest temp employee in the government, is the drummer in a punk band whose recent CD is titled "Rock Against Harper".

The government must indeed be happy today as it managed to ward off two Supreme Court of Canada appeals of a similar nature yesterday. In the case of Dr. Shiv Chopra, who had gained notoriety as one of Canada’s first whistleblowers in the bovine growth hormone issue, the SCC dismissed his application for leave to appeal a five day suspension resulting from his public comments that the government’s decision to stockpile the drug ciprofloxacin was a public relations gesture to look good in the wake of 9/11. The purpose of stockpiling the drug would be for use in the event of a bioterrorist attack using anthrax. Chopra also stated that the government’s decision was a danger to public health.

The other decision invovled an RCMP officer, Robert Read, who, concerned about a cover up regarding the Hong Kong Mission, released information to the media:

The core allegations are:

1. That certain people paid locally engaged staff of the Canadian
commission (now the consulate-general) to delete their backgrounds in the
computer system to hide their links with triads – the Chinese Mafia.
2. That the visa forms have been used by possibly hundreds of people, including
criminals, to enter Canada illegally.
For seven years, the RCMP, Immigration
Canada and the Department of External Affairs are alleged to have kept a lid on
the case, unwilling to reveal the extent of what several sources call a "breach
of national security."

As a result of this disclosure to the media, an internal Adjudication Board found Read guilty of disgraceful conduct and terminated his employment.

Nude Workers Have Rights Too!

Can nude workers be treated differently than workers who are fully clothed? This is the question that the Court of Appeal took on recently. Windsor, Ontario, a city not unknown for its adult entertainment parlours, enacted a by law which required that “dancers” must pay a license fee of $466. The City's By-law provides:

a. “Dancer” means any person other than a
licensed owner or operator who provides services designed to appeal to erotic or
sexual appetites or inclinations at an adult entertainment
parlour;
g. “Services designed to
appeal to erotic or sexual appetites or inclinations”
includes,
(i) services of which a principal
feature or characteristic is the nudity or partial nudity of any person.
For the purposes of this clause “partial nudity” shall mean less than completely
and opaquely covered:
• human genitals or
human pubic region;
• human buttocks;
or,
• female breast below a point immediately
above the top of the areola.
(ii)
services in respect of which the word “nude”, “naked”, “topless”,
“bottomless”, “sexy” or any other word or any picture, symbol or representation
having like meaning or implication is used in any advertisement

Madam Justice Gillese took issue with the meaning of dancer, stating:

According to the definition of “dancer” in the Licensing By-law, a person need
not perform any type of dance routine in order to be classified as a
dancer. In fact, that definition coupled with the definition of “services
designed to appeal to erotic or sexual appetites or inclinations”, makes it
clear that a person can provide any type of service in an adult entertainment
parlour and be classified as a dancer so long as, while performing the services,
the person is nude or partially nude. Thus, the classification as “dancer”
is not based on the work that the person regularly performs nor is it based on a
person’s employment responsibilities. Rather, the classification is based
on the amount of clothing that the person wears while performing any type of
work within an adult entertainment parlour. Consequently, for example,
under the Licensing By-law, a person who provides bartending services in an
adult entertainment parlour, while wholly or partially nude, is a “dancer” and
required to be licensed as such; whereas a fully clothed person performing
the same bartending functions is not required to pay the “dancer” licence
fee.

Thus, Gillese held that the law did not actually license dancers but rather it discriminated on the basis of the amount of clothing worn while working.

And the Blue Ribbon for Workplace Romance Goes to

In my post on Saturday, I suggested that workplace romances are a bad idea. This bad idea is now getting some play over at the World Bank where president Paul Wolfowitz (former Bush government deputy secretary of defense under Rumsfeld) is allegedly under scrutiny for giving his girlfriend a promotion and a raise. Shaha Riza is a senior communications adviser at the World Bank whose employment there predates Wolfowitz’s appointment. According to a March 2005 article in the Washington Post, the Wolfowitz/Riza relationship began prior to his appointment to the bank. The Guardian reports that the relationship goes back to 2001 when Wolfowitz separated from his wife of 30 years.

In a statement published on the World Bank website, Wolfowitz states:

Two years ago, when I came to the Bank, I raised the issue of a potential
conflict of interest and asked to be recused from the matter. I took the issue
to the Ethics Committee and after extensive discussions with the Chairman, the
Committee’s advice was to promote and relocate Ms. Shaha Riza.

The Bank’s policy on workplace romance is very strict and requires that there be no employment of those in a relationship where there is even an indirect reporting relationship. Thus, the committe recommended that Riza be seconded to the U.S. State department where her salary went from $135,000 to $193,000.

Staff at the bank have been on a campaign protesting Wolfowitz’s leadership and have been wearing blue ribbons to indicate their concern for the cause.

Health but no safety

A fine of $50,000 was levied against a fitness club last month and a further $15,000 personally to the the General Manager of the club for violating the Occupational Health and Safety Act.

Between July 21, 2005 and January 18, 2006, the Ministry of Labour
conducted a series of health and safety inspections at Premier Fitness at
theYorkdale Shopping Centre at 3401 Dufferin Street in Toronto. During the
sixmonths of inspections the ministry issued dozens of orders under the act for
numerous violations involving such things as personal protective equipment,
hazardous chemicals labelling and a requirement for a workplace Joint Health and
Safety Committee. The club failed to comply with most of the orders,forcing the
ministry to issue stop work orders in some cases in an effort toachieve
compliance. When the club continued to disregard the orders, theministry laid
charges.

Many employers don't realize the the Occupational Health and Safety Act applies to almost all employers in Ontario -- not just those we most often associate with safety risks, the industrial plants, construction, railways etc. Offices, retail stores, and yes, fitness clubs all must comply with the Act.

Imus Redux

All employment is contractual. Most often the terms of the contract need to be implied from the circumstances and from the law. Imus, as a sophisticated player in the employment contract game, had a more specific and refined contract than most.

The latest iteration of his contract was only three months into a five year term with an apparent value of $40 million. That contract provided that Imus' services were "unique, extraordinary, irreverent, intellectual, topical, controversial." The clause also said Imus' programming was "desired by company and ... consistent with company rules and policy."

Although I argued before that even without those clauses, CBS was aware of Imus’ style, this would make CBS’ argument even more difficult. On top of that Imus’ lawyer, Martin Garbus alleges that the station has a delay button which allows it to cut out any offending material. If that is true, then CBS not only tacitly allowed the material, but had the option to prevent it from airing.

To be fair to CBS, editing hosts, writers etc. is probably a difficult task. Presumably, there is some understanding between Imus and CBS as to what they can edit. Any argument for cause for termination would have to take that into consideration.

Grey’s Anatomy or Sex and the Hospital

Presumably we are all supposed to be amused by the double entendre of the famed textbook together with the actual anatomy of character Meredith Grey. The television show is largely about workplace relationships and workplace sex. Where Sex and the City was about young women being beautiful, wearing Manolos and having sex, Grey’s is about becoming a superstar surgeon and grappling with sex and relationships at work. The show features shots of Seattle’s Space Needle about as often as we saw the Chrysler Building in SATC’s New York – the directors thinking that if the sex wasn’t obvious enough, gratuitous shots of phallic symbols would help out. (Perhaps these two shows are philosophically distinguished on the basis that the former was about being and the latter becoming). Every character in Grey’s, except for Miranda Bailey, is involved with someone at work. They are involved with each other, with each other’s partners and with their patients.

Generally workplace romances are probably a bad idea. Perhaps this point gets made in Grey’s where all of the relationships are problematic except for Bailey’s and it is to Bailey the others turn when they need real relationship advice. The point is being made ongoingly in Boston Legal where, a few episodes back, the firm asked partners Brad Chase and Julie Bowen to sign a "love contract". Love contracts are a means for the employer to limit its liability when employees enter into a relationship. What kind of liability? The primary concern will be sexual harassment. There are others, conflicts of interest, favouritism, nepotism, confidentiality, insubordination, work efficiency (competence) constructive dismissal. The parties to the contract agree that the relationship is consensual and that the company will not be liable for claims that arise out of the relationship. Of course, one problem with this is not all claims that arise out of the relationship will come from the parties to the relationship.

The law in Canada regarding such relationships can be found in the Human Rights Code regarding sexual harassment (s.7) and nepotism (s.24) (it is expressly allowed). Where it is more tricky is the other areas which are found in the common law. In Dooley v. C.N. Weber, Mr. Dooley was fired for having relationships with his coworkers and subordinates. Given that no one had complained, the court had to consider the nature of consensual relationships in the office; reyling on the decision in Reilly v. Steelecase:

"there has been a social revolution of enormous proportions.
One need only to look at the Divorce Act, 1968 (Can., c.
24,) and the Family Law Reform Act, 1978 (Ont.) c. 2, to
realize the gulf that separates current thinking with
respect to personal and social relationships that are
acceptable today with those that were acceptable in the
society of 60 to 100 years ago.”

Even though the company had expressly warned Dooley not to have workplace relationships, the court held that the dismissal was wrongful on the basis that tolerance for such things in society has changed.

While I agree with the result in the case I disagree with the reasons. There may be many reasons why complaints aren’t made. The participants may be frightened, they may not want to expose the relationship any further for personal reasons. The issue here should have been whether or not Mr. Dooley could be fired for violating a company policy or "love contract". There is no reason why the company could not have such a policy or contract – except for the law that governs the enforceability of policies and contracts. A change in the terms and conditions of employment can be enforced if it is something that was contemplated within the terms of the original contract, and if not, if it meets the law of contract. This means that additional consideration must be provided. An employer cannot unilaterally change the terms of the contract without providing additional consideration, i.e. payment for that change. The "love contract" was forced on Mr. Dooley without any further consideration. Thus, it was not valid.

In Grey’s, it is pretty clear that there are no love contracts. It is also clear that the relationships are causing problems at work. Conflict of interest: Christina did not disclose (until later) that Burke was having hand tremors and was incapable of performing surgery. Burke on the other hand used extremely bad judgment in allowing (read forcing) his subordinate to cover for him. O’Malley married his superior Cali Torres, and though there have been no incidents between them, the work relationship between Cali and O’Malley’s friend and one night lover, Izzy Stevens is proving to be extremely problematic. In the last episode, both O’Malley and Burke were hiding in the clinic (funded by dead patient and love interest of Izzy) , i.e. not working, in order to deal with relationship issues, and both wanted to take Dr. Bailey away from her work to discuss those issues. Extreme bad judgement, of course, is used when Izzy endangers the life of her boyfriend by cutting the cord to his life support system in order to get him a new heart. He dies and leaves her a lot of money. That’s very nice. Except, what happened to the other person who was waiting for the heart? One assumes that there would be lawsuit waiting there. And then what of all that, what appears to be, unprotected sex in the staff sleep room? I see no reason why a claim against the hospital, as an employer, would not include the damage suffered from an STD.

The point of the love contract is to recognize that individual judgment gets compromised in relationship. One does not make rational decisions – or the rationale includes factors that are unnecessarily there. Bad judgement and bad decisions lead to lawsuits.

Back to the Water Cooler

My students asked recently if I was on Facebook. I am not. They were somewhat surprised given my insistence on using the internet for all reference materials used in class, as well as for assignment submission, grading and communication. Our online system uses a technology called Blackboard which allows for communication, discussion, voice messages, etc. It is a great tool to meet the needs of our work and educational environment. I spend most of my day on the computer, whether it is doing research, writing e-mail, or writing this blog – technology is the vehicle and the computer is the arena. Almost daily there seems to be something I can do better or faster, or just something that is more interesting to use. I am not sure what Facebook could add to what our current program, Blackboard, already has – aside from the "cool now" factor.

That said, I have no idea of what value any government employee gains by having access to Facebook during the workday. I am not a fan of government interference in the private lives of individuals in Canada. Nor do I believe that any employer should have any more than "need to know" access to the private lives of its employees. But banning Facebook from the workplace is not an issue about interfering in private lives. It is not draconian. It may even save people from their own stupidity. The amount of personal information that individuals put on Facebook could very likely be damaging to career aspirations (think about getting "dooced" -- see my post from 2005, also see the Dilbert Comic strip for today's date).

There is no doubt that great volumes of time are wasted by workers everyday using technology for something other than work. This is not in the employer’s interest – and I am not convinced that there is anything about it in the employee’s interest. On the other hand, I am not a fan of micro management and indeed believe that stupid management may be the blight of the modern workplace. So, if it is not an issue in the workplace, it if is not a time waster, then leave it alone.

The law in Canada with respect to the use of technology in the workplace is that it is the employer’s equipment and it certainly has the right to limit access. The employer also has a right to require the employee to work while at work. This is nothing new. If employees are wasting time on Facebook, then the employer has a right to do something about that. But Facebook isn't the genesis of indolence in the office. Employees can find other ways to waste time -- once upon a time there was the mythical "water cooler" where workers gathered to share stories. Now, we bring a bottle of water to our desk and sign on to Facebook. Maybe it's time to go back to the water cooler.

Wal Mart

Wal Mart is almost as well known for its union free stores as it is for its low prices. The employer of some 1.8 million people worldwide has worked diligently to keep unions out. Canada has been a serious threat to that status with several union certifications. Today, the Supreme Court of Canada dismissed Wal Mart's application to appeal a decision of the Quebec Court upholding a labour board decision granting certification to the United Food and Commercial Workers in Gatineau, Quebec.

Shortly after its Jonquiere store unionized in 2004, Wal Mart announced the closing of the store and workers found themselves without jobs and residents of this northern, remote town without the variety the big box offered. A good discussion of this can be found in Anthony Bianco's book, No Union Please -- We're Wal Mart http://www.businessweek.com/magazine/content/06_07/b3971115.htm

Boston Legal Round UP

While not an employment law issue, the case in last night’s episode of Boston Legal involving the Sorority kicking out a member is an interesting one to apply to the employment context. In the case Clarence takes on a client who has been kicked out of a sorority because she is socially awkward. Winning argument goes to lawyer, Jerry Espenson, who has Asperger’s syndrome and uses his own disability to make the argument that the education gained by realizing that even nice people are mean is worth getting kicked out of the club. While that may be true in some way, it is not really the issue. The issue, and one that many of my students grapple with, is that not every form of discrimination is protected. In Ontario, the Human Rights Code provides that:

"Every person has a right to equal treatment with respect to employment without
discrimination because of race, ancestry, place of origin, colour, ethnic
origin, citizenship, creed, sex, sexual orientation, age, record of offences,
marital status, family status or disability. "

For the young lady in the show, there was no evidence that she was kicked out because of a disability or any other ground protected in the Code. If there is no basis for her discrimination lawsuit, then she is not going to win.

One should note that there are employment agreements which prohibit all forms of discrimination. Collective agreements, or employer policies which may become part of the employment contract, sometimes prohibit discrimination without any qualifiers. This is generally a difficult task to accomplish since discrimination in the sense of distinguishing between people must occur all the time.

The other issue that is raised in that case which can be applied in an employment context is that of recruitment. The young lady representing the sorority speaks frankly, albeit quite glibly, about the nature of the club and who they are recruiting. They want attractive, socially outgoing women who resemble themselves. This is often a recruitment strategy that is used. Malcolm Gladwell has written an excellent article on this topic relating to admissions into the Ivy League Universities: http://www.gladwell.com/2005/2005_10_10_a_admissions.html .

May Day

As many know, May 1st, is marked as a day for the international celebration of labour --except in Canada and the U.S. where certain events back in 1884, were the seminal activities creating this day. The Federation of Organized Trades and Labor in Canada and the United States had set this day back in 1884 as the date on which the eight hour day was to become law. For a good summary of the events leading up to see http://www.bbc.co.uk/dna/h2g2/A627662 .

Bertha Wilson 1923- 2007.

Madam Justice Bertha Wilson, the first woman on the Supreme Court of Canada died yesterday. Wilson, well known for her dissenting opinions, was appointed to the Supreme Court just prior to the advent of the Charter of Rights and Freedoms; accordingly, she had a significant voice in shaping the law and articulating the values the Charter protects. Her views in employment cases were generally in favour of the employees.

One of my favourite opinions of Wilson's is that in Bhadauria v. Seneca College, a case Wilson decided while still in the Ontario Court of Appeal and which was overturned by the Supremes. In that case Dr. Bhadauria had been teaching at Seneca College for a number of years. Ontario colleges manage a substantial amount of teaching responsibilities through, part time, sessional, limited term contract teachers. These people are hired one term at a time and are paid an hourly rate for classroom time, but must manage all their other duties, i.e. student contact and marking, on their own. The sessionals have no, or limited benefits, pension, and union protection. In contrast to the permanent full time faculty who are unionized with full salary, benefits and pension, the sessional is a very poor second cousin. Presumably, it is the goal of many sessionals to obtain permanent employment. Dr. Pushpa Bhaduria had such hopes which, alas, went unfulfilled for many years. Believing that the basis for her exclusion from permanent employment was her race, Dr. Bhaduria attempted to sue for the tort of discrimination.

The court held that there was no tort of discrimination and that any right that Bhadauria had must be pursued under the Ontario Human Rights Code. This, as many people who have tried, will know, is also a dim second cousin to suing in court for a tort. Damages are limited to a maximum of $10,000.00; there is no power to award costs to a successful applicant; case backlogs were substantially slower than the courts. Wilson held that the right to sue for discrimination should and did exist in the common law. Her view, perhaps shaped by the fact that she preferred the law over administrative convenience, was that individuals shouldn't be denied access to the courts.

The opinion of the Supreme court and the philosophy of restricting litigation, unfortunately has continued to carry the day in most similar cases where access to the courts are denied to those with unions, or with complaints that might be heard in the context of administrative tribunals.

Retirement age on the court is 75 -- Wilson left at age 67. Yet, she had written the dissent in the Harrison v. UBC case in which she stated that mandatory retirement was unconstitutional.

International Day of Mourning

Today, April 28th, is the marked to honour those killed at work. Worldwide, work kills more people than wars. More than two million each year -- that's 6000 workers each day who die on the job. Canada's number is 5 per day.

Sex with the Judge

In Douglas County, Colorado, a 29 year old female prosecutor, Laurie Steinman, was fired December 22nd for having sex with a Judge, 57 year old Grafton Biddle, who resigned on December 18th. The relationship came to light when Biddle’s 4th wife wrote to the chief judge. Apparently, they were having sex in his chambers and in the showers in the womens’ locker room. The Attorney Regulation Council filed complaints against the two last Friday. Both now face disciplinary sanction up to disbarment in addition to losing their jobs. (Rockymountainnews.com)

While, Boston Legal’s, Denny Crane (William Shatner) is not likely to fire his partner Alan Shore (James Spader) whose tryst with a judge, also in Chambers, was revealed in the courtroom during a motion, perhaps we can expect the State Bar to take action against them too. The judge found against Shore’s client. Interestingly, one of the trysts in the Biddle/Steinman affair occurred while he was mentoring her on a case she lost. One concludes that it is not good for the win record to sleep with the judge.

In the same episode, Denny Crane found himself hot water similar to that of Imus when during an employment interview Crane told the candidate that he was articulate. When pressed, Crane said, "you don’t sound black". The partnership immediately convened a meeting to vote on dismissing Crane. The press were all over it, and firm partner, Shirley Schmidt (Candace Bergen), blamed white corporate america, the firm’s client base, for wanting their lawyers to sound like themselves. In other words she put Crane's comments into context.

Electra, er . . . Erotica, er. . . Errata

I erroneously posted in my April 17, Anniversary review of the Charter, that the Skapinker case was the first employment case to consider the Charter. Having had occasion to do a little research on Non Standard Employment, I discovered that the Westerhouse case was the first. In that case the accused and her friend, were "working girls" who approached an undercover police officer and offered to "work" for the fellow in exchange for money. They argued that the Calgary by-law that prevented them from working the Streets infringed on their s.7 rights. Section 7 provides:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Unfortunately, that argument was dropped by the time the case reached the Supreme Court of Canada.

Long Black Train

In what seems like a scene from a movie, a CP rail engineer was killed Monday when the train he was operating careened out of control down a steep mountain grade in Trail, BC. The engineer, Lonnie Plasko, told his two crew members to jump from the train while he continued to try to prevent the 10 car train from crashing into the nearby parking lots and pipelines of mining company Teck Cominco.

As I wrote on Monday, regarding the Toronto Subway crash where the operator of the train was also killed, in addition to the tragedy itself and whatever other physical injuries, there will be harm to the other employees’ mental health. In fact, "CP Rail spokesman Mark Seland said the two surviving crew members have been offered criticial-stress debriefing and will be interviewed to help determine the cause of Monday's crash."(canoe.ca). The other employees not only witnessed the death of their colleague but presumably were in the face of imminent death themselves.

One assumes that the "critical stress debriefing" will include counselling and other forms of mental health support to mitigate against the onset of PTSD. However, despite counselling, most of us would probably require a little time away from work to deal with the overall stress of the situation. For the stress to be compensable, a diagnosis of acute stress is going to be required and although Board policy states that the diagnosis must come from a psychiatrist or psychologist, in short term claims in circumstances such as this it would not be unreasonable to get the diganosis from a family doctor.

In the end, one thinks about the job of the train operators and the risks involved. I am reminded of the song by Josh Turner, Long Black Train, where he sings "There's an engineer on that long black train making you wonder if the ride is worth the pain"

More Shock Jock Context

Shock Jocks, as crude radio hosts are called, like all radio personalities, get paid to bring in an audience. Where there’s an audience there’s an advertiser. CBS has obviously done well by using shock jocks having employed Imus for 30 years and Howard Stern for a many years as well. As I mentioned in my post on Imus, it is more than a little disingenuous to fire them for what they are paid to do. The question, of course, is whether the jocks are doing what is required or whether they have stepped over the line.

I stated that if Imus’ comment is taken in context, as it would be required in Canadian law, one would have to say that the context didn’t warrant dismissal. But that was the result. In a similar incident with two more of its shock jocks, Jeff Vandergrift (JV) and Dan Lay (Elvis), CBS meted out discipline short of dismissal. The jocks were suspended.

This is a curious result if one, in comparison to the Imus incident, looks at the context. JV and Elvis planned a broadcast prank call to a chinese restuarant. During the call for take out food, they asked a male employee to "tell me about your tiny egg roll" and then made an order for "very large slimp flied lice". They also made sexual comments to a female employee telling her they wanted to go to the restaurant to see her naked and referring to her body parts as "hot, Asian, spicy". These were not off the cuff remarks. They were planned and deliberate. And, more importantly, they replayed the segment on the air a second time a week later. Imus made his comment as part of an on air dialogue. It was not thought out – perhaps he should have known he was crossing the line given his experience, but that’s a tough call. JV and Elvis, on the other hand had time to think about whether it was over the line before they aired it the first time. More importantly, they did this the day after the Imus scandal broke. If they were uncertain about whether the comments might be over the line prior to the Imus incident, they certainly knew after. CBS shouldn’t have thought twice about terminating their employment. Instead they take the cautionary route. Why?

Could it be that when CBS hired the two, they had already been fired from a previous station for making sexist comments?

Sunday Mornin Comin Down

"Well I woke up Sunday morning with no way to hold my head that didn't hurt. And the beer I had for breakfast wasn't bad so I had one more for dessert." Those words penned by the great Kris Kristofferson in 1970 might not have resonated so well in a society where Sunday work was the norm. Instead of "stoppin by the sunday school and listenin to the song that they were singin", the "I" of the song may well have been on his way to work.

Today, April 24th , marks the 22nd anniversary of 1985 the Supreme Court of Canada decision in R.v Big M Drug Mart. In that case Big M Drug Mart had been charged under the Lord’s Day Act with carrying on business on Sunday. Or as Justice Dickson so nicely put it: "The respondent Big M was commanded by Her Majesty The Queen to face prosecution for a violation of an Act of Parliament". The Act provided:

"It is not lawful for any person on the Lord's Day, except as provided herein, or in any provincial Act or law in force on or after the 1st day of March 1907, to sell or offer for sale or purchase any goods, chattels, or other personal property, or any real estate, or to carry on or transact any business of his ordinary calling, or in connection with such calling, or for gain to do, or employ any other person to do, on that day, any work, business, or labour."

The Court held that the legislation violated the Freedom of Religion section (2(a))of the Charter. Since then Sunday work has been lawful.

The decision relates an interesting history of Sunday Observance legislation. While in the end finding that the purpose of the Act was compulsory religious obervance the Court stated that there were two purposes of the Act, one religious "the other secular, namely providing a uniform day of rest from labour." The intertwining of the two purposes "is to be seen as far back as early Saxon times in such laws as that promulgated by Ine, King of Wessex from 688-725":

"If a theowman (slave) work on Sunday by his Lord’s command, let him be free; and let the lord pay thirty shillings as a fine. But if the theow work without his knowledge, let him suffer in his hide, or in hide-gild (money paid in lieu of corporal punishment). But if a freeman work on that day without his Lord’s command, let him forfeit his freedom, or sixty shillings; and be a priest doubly liable."

Subway Death

Death came to the workplace again on Monday morning at about 4:30 a.m. when a subway car driven by a TTC employee, came into contact with maintenance platforms. The platforms crashed into the operator’s compartment of the car killing the operator and injuring two other members of the 11 member maintenance crew.

All the crew members there are likely to experience the type of stress discussed in yesterday’s post. Indeed, Canoe reports: "One member of the TTC crew openly wept as he tried to explain to a transit safety officer what occurred in the tight confines of the tunnel." The sudden irrevocable power of death seems always to affect those who bear witness to it. In that, of course, is the stress that comes. The single largest factor in stress is lack of control. And clearly when it comes to death, all control is immediately and irrevocably removed. Thinking about the workers in that tunnel, one imagines that the work to have an overriding element of stress just in the fact that the work is in a confined space in the dark. Open, fresh air and access to rescue help are absent. Going back into that space is likely to be difficult for all the surviving workers.

As I discussed yesterday all the employees exposed to the traumatic event will be entitled to worker’s compensation benefits where they suffer symptoms of acute stress.

VT PTSD

The Virginia Tech community has undergone and is in the midst of tremendous stress. In addition to the suffering the community is already going through, the stress will continue to show up in different ways over time. One of the very real results from traumatic events such as that at VT is the inability of participants, victims, observers to get past the event and return to normal living. The shock to the system of a traumatic event causes more stress than the body is able to handle. What this means is that the body’s normal ability to deal with stressful situations is damaged. One of the most commonly recognized disorders of this type is PTSD, Post Traumatic Stress Disorder.

The term PTSD appears to have garnered most of its attention subsequent to the 1991 Gulf war. What was described as shell shock in the first world war and battle fatigue in the second wars, saw increasing numbers after the Viet Nam war and the ailment subsequently came to be recognized as legitimate gaining the tag PTSD. Subsequently it has become a common diagnosis for many people exposed to traumatic events.

The employment law question here will be which workers at and around Virginian Tech will be entitled to stress leave and or workers' compensation as a result. The first and most obvious group will be those faculty members and admin staff that were directly exposed to the shooter or any of the victims. Then other college employees who will have been traumatized even though they did not directly witness any of it, may still feel the effects of the shock because they no longer feel safe in their workplace. Finally, the police and other emergency personnel, despite encountering tragedies as a regular part of their jobs, may also experience PTSD symptoms and be entitled to worker’s compensation benefits.

The Ontario Workplace Safety and Insurance Act specifically allows for benefits to be paid in such circumstances. Section 13 of the Act states that "A worker is entitled to benefits for mental stress that is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment." There is no doubt that the VT shootings were sudden and unexpected traumatic event.

The Ontario Workplace Safety and Insurance Board's policy defines traumatic events to include "being the object of threats of physical violence where the worker believes the threats are serious and harmful to self or others (e.g., bomb threats or confronted with a weapon); being the object of harassment that includes physical violence or threats of physical violence (e.g., the escalation of verbal abuse into traumatic physical abuse); being the object of harassment that includes being placed in a life-threatening or potentially life-threatening situation. The worker must have suffered or witnessed the traumatic event first hand, or heard the traumatic event first hand through direct contact with the traumatized individual(s) (e.g., speaking with the victim(s) on the radio or telephone as the traumatic event is occurring). "

Clearly, many if not all of the employees at VT felt they were in a life threatening situation. When it comes to emergence personnel who regularly encounter traumatic events, claims will be allowed where there is a cumulative effect of truama over a period of time. However, given the scale of this tragedy, it would not be unreasonable to assume that most emergency personnel, despite being familiar with minor scale trauma, would experience significant stress as a result of this situation.

Symptoms may include amongst others, flashbacks, nightmares , insomina, emotional detachment, irritability, hypervigilence, irritability, depression, anxiety, and memory loss.
Compensation benefits are wide ranging and in the first instance, even before loss of earnings is an issue, the medical costs associated with the "injury" will be covered. This would include necessary treatment and drugs. In extreme circumstances where the worker would no longer be able to function in that workplace, job retraining (labour marker re-entry) may be provided

Thus for entitlement to worker’s comp benefits, the workers will have to have an acute reaction. There is a requirement that this acute, or severe, reaction occur within four weeks of the event. There must also be a DSM IV (Diagnostics Statistics Manual for Mental Disorders) diagnosis made by a pyshciatrist or psychologist. The diagnosis may be for PTSD, or acute stress disorder, adjustment disorder, or an anxiety or depressive disorder.

Columbine Anniversary

It’s eight years ago today that the word Columbine became embedded in the collective psyche following the mass murder of 12 students and one teacher at Columbine High School by two male students. VT shooter Cho mentioned the Columbine shooters in his video recorded rant. In both shootings faculty members were killed. In both shootings there were written warnings by the shooters. However, from what I can tell, the Columbine shooters never submitted any threats or disguised threats as part of their school work. Cho did.

Many have now seen extracts from the two plays that Cho wrote. They are described by professors and classmates as disturbing. What should the professor do in such a case? In this case a lot was done. A CNN staff writer notes:

"Lucinda Roy, the former chairwoman of the English Department, told CNN that one of Cho's creative writing professors brought his writings to her attention. Roy was so disturbed by them she went to the police and counselors "and everywhere else, and they would say, but there's nothing explicit here. He's not actually saying he's going to kill someone.""The threats seemed to be underneath the surface," she said. "They were not explicit and that was the difficulty the police had." "My argument was that he seemed so disturbed that we needed to do something about this," Roy said." (http://www.cnn.com/2007/US/04/17/vatech.writings/?eref=rss_topstories)

I have had a look at Cho’s plays. While there’s no doubt that the anger and rage is apparent, both involve boys being sexually molested and wanting to kill the perpetrator. It is not the sort of thing I would find myself going to the police over were I the professor involved.

Few people remember that back in December 2000, a 15 year old boy from the Cornwall area was arrested and spent 34 days in Jail including Christmas, New Year’s and his 16th birthday because of a story that he wrote about blowing up his school. Similarly, in February 2005, an 18 year old student in Kentucky, William Poole, was arrested for writing a story about a gang of Zombies taking over his high school. Zombies!

Clearly, these are over reactions. Yet, had Cho been arrested because of the concerns of his professors, what could possibly have come of it? One can be charged with uttering threats. Would that ultimately make any difference? Would Cho have learned his lesson? I read an interesting article in Slate, on Harris and Klebold. Pyschological experts speculated that without Columbine, Klebold may have gone on to live a normal life. Harris, on the other hand was a psychopath who would have continued to commit and perfect his crimes; catching him early (and his blog revealed significant hate) would have done nothing. So what is a prof to do?

At best, the profs at VT can say they took every precaution reasonable in the circumstances. And from an occupational health and safety law perspective that is what is required of an employer. Certainly, one hates to think of the professor reading papers with a view to liability, but there is no doubt that this will cross the minds of educational administrators. This is especially true in light of the amendments to the Criminal Code of Canada which makes it a criminal offence for a supervisor to fail to take necessary steps to protect the life of a worker. If, as Lucinda Roy believed about Cho, a student was a possible danger to professors and other employees, then the supervisor would be criminally responsible if she didn't take steps to protect those workers. Warn them. Take the student out of the school. Take "reasonable steps to prevent bodily harm".

Presumably, the pyschopaths would soon learn that writing "disturbing" material would interfere with their plans and wouldn't write. Other, aspiring writers, emotionally disturbed in one way are another (and how many writers aren't?), however, would be arrested, or worse, would not even bother writing because of the threat of arrest and censorship by the state.

To take up arms against a sea of troubles

and by opposing, end them. To die: To sleep.

I have noticed the numerous blogs by VT students lamenting the fact that they weren’t allowed to carry guns on campus so they might have "defended" themselves against the gunman. This sort of sophomoric nonsense is barely worthy of comment – except insofar as it evinces a mentality that is present in the classroom whether it comes with guns or not. The initial response after 9/11 was not to allow passengers to carry guns on airplanes but rather to put in federal air marshalls. Obviously we don’t need nor want a marshall in every classroom. But more importantly, we don’t need vigilante students pumped up on testosterone and a need for self esteem and self worth to assess security needs.

But this is why debate needs be continued in the academic setting. Students need to learn debating skills. Those debating skills, by the way, are not aimed at generating a head full of hot air but rather at developing the ability to stand up for yourself and protect your rights. This is the job of teachers and professors.

In one interesting blog, http://www.smalldeadanimals.com,/ a reader, Jim Hume, notes that the VT shooter used a pistol which had to be reloaded several times. In the time that the shooter was reloading, students and professors could have attacked him. They could have thrown chairs or hot coffee, books, backpacks. They didn’t. They huddled and waited. Hume blames this inaction on the nanny state and years of "immersion in a non confrontational, liberal pansy ass societal and school environment."

I agree with the sentiment. In an experiment recently in my employment law class, I encouraged students to debate with me about answers on multiple choice questions. If I was moved by a good argument, I told them, they would get the points. A few took me up and did well. But at the end of it all, the loudest chorus was of those who had not debated but now cried that it was unfair that some students with the same answer got a mark, while they did not.

Thus conscience does make cowards of us all;
And thus the native hue of resolution
Is sicklied o'er with the pale cast of thought,
And enterprises of great pith and moment
With this regard their currents turn awry,
And lose the name of action.--Soft you now!

Imus

Should Imus have been fired for his comments that the Rutgers University Women's basketball team are a bunch of "nappy headed ho's"? As a non news event now, it is still nonetheless an issue that's worth considering. Aside from comments one might make about the racial hatred or stereotyping issue and the galvanizing power of those issues -- as seen in the Duke Lacrosse players' case -- the question to be answered here is whether Imus' conduct warrants what Justice Randall Echlin calls the capital punishment of employment law.

In Canada the governing case in just cause termination is McKinley v. BC Tel. That case held that a contextual approach is to be used in assessing workplace misconduct. While there is really nothing new in that given that courts treat each wrongful dismissal case on its own carefully considering the particular facts -- the idea that the cause must be consdidered in context is worthy of discussion. What is the context of Imus case?

Imus is a syndicated radio talk show host. He has been in the business for some thirty years. Presumably he has a large audience and the adverstising revenue generated is substantial. Advertisers are there because Imus has the ratings. I have not listened to his show, but understand that like many talk show hosts, it is his abilty to be provocative that makes him popular. He may express unpopular views, or views that aren't politically correct. He is unlikely to be interesting unless he's stepping on toes and pissing people off. That is certainly what he did when speaking about the Rutgers women's basketball team. So, in that sense, Imus was only doing exactly what he gets paid to do.

But, did he step over the line? As a professional, he surely knows that there is a line over which he cannot step. To anwer that question, an examination of what exactly was said, who else has said it, what else is being said in similar media is required. An look at the transcript of the comments shows that it wasn't Imus, but rather a producer of the show that first used the controversial word "Ho". It is of course, basketball they are talking about, the sport that pioneered trash talking. Trash talking has become a standard feature in sports. Remember Zidane's famous headbutt was incited by trash talk. Even the fans get into it -- sometimes resulting in violence between players and fans. It's a regular part of the modern sports world. Imus, as a fan, or commentator is part of that world. Moreover, he reacted to the producer's comment as is required to keep the flow of his show going -- and in the context of sports trash talk. Obviously, it's not something he put any thought into, he just responded -- in context.

Does that excuse the fact that he used the phrase "nappy headed Ho's" with both its racist and sexist overtones? Well, the answer to that also requires context. What does that phrase mean today? What is the sting of it today? What is the sting of it from Don Imus versus George Bush or Bill or Hilary Clinton or Martha Stewart? As we know, the meaning of words and phrases change over time. In one of the more amusing Canadian cases, Legere v. YWCA, the court had the opportunity to consider the evolution of the phrase "Fuck Off". While "fuck" used to be the worst of dirtiest words, today it is pretty watered down. A reading of the various blogs on the topic suggests that the phrase "nappy headed hos" is also relatively common, appearing on the street, in hip hop tunes, on videos and movies. Thus, in the context it is unlikely that the phrase has the sort of sting or shock to it, that one would say Imus was acting outside the acceptable parameters of his job and his audience.

And speaking of nappy headed, has anyone looked at Imus' hair?

Twenty Five Years

Today, April 17th. marks the 25th anniversary of the Charter of Rights and Freedoms. There is relatively little charter litigation based on employment. This is primarily because the Charter of Rights applies between the government and the people, rather than between private parties such as an employer and employee. The Supreme Court of Canada made this point back in 1986 in a case called Dolphin Delivery. That case dealt with the limitations placed on striking workers. Indeed, many of the Charter cases involving the workplace have been about strikes or picketing. In those cases the court has stated that picketing is a form of expression which is protected by the Charter.

The first case out of the court to deal with employment (and indeed one of the first Charter cases to be heard) was Skapinker v. The Law Society. In that case Mr. Skapinker was a permanent resident, but not a citizen of Canada and had therefore been precluded from being admitted to the Ontario Bar by viture of s.28 of the Law Society Act. The case raised an interesting employment question which was whether s.6(2) of the Charter created a "right to work" in Canada.

Section 6 provides:

(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right
(a) to move to and take up residence in any province; and
(b) to pursue the gaining of a livelihood in any province.

After analysing the purpose of the section and canons of legislative interpretation the court held:

"I conclude, for these reasons, that para. (b) of subs. (2) of s. 6 does not establish a separate and distinct right to work divorced from the mobility provisions in which it is found. The two rights (in para. (a) and in para. (b)) both relate to movement into another province, either for the taking up of residence, or to work without establishing residence. Paragraph (b), therefore, does not avail Richardson of an independent constitutional right to work as a lawyer in the province of residence so as to override the provincial legislation."

So, in the end, Mr. Skapinker would have been denied the right to work (at least as a lawyer) in Ontario, but for the fact that by the time the case got to the Supreme Court, Skapinker had already become a citizen of Canada and had been called to the bar of Ontario. (Mr. Skapinker continues to practice family law in Toronto today.)

The first real positive case in non-union employment law was the Vriend case out of Alberta. Mr. Vriend was fired for the sole reason that he was homosexual. Alberta law, which did not protect sexual orientation, was held unconstitutional.

One interesting case involved the application by an individual to be excluded from membership in a union. The law allows for mandatory membership and mandatory union dues. The employee, Mr. Lavigne objected to his money (union dues) being used to fund such causes as anti nuclear campaigns, pro-choice campaigns and NDP party functions. The Supreme Court held, that the Freedom of Association did not include the freedom not to associate.

In Dickason v. U of A, The Supreme Court held that the mandatory retirement provisions of the provincial human rights legislation was constitutional. The same result was reached in the McKinney v. U Guelph case in Ontario.

In Weber v. Ontario Hydro, the Supreme court held that arbitrators had the power to award Charter remedies. Though a strong dissenting panel appears to have carried the court recently when leave to appeal was refused in the OPSEU (Olivo) case on the issue of arbitrators awarding tort damages.

In the world of what might be called non standard employment, the Ontario Court of Appeal held that Squeegee kids had the right to freedom of expression as well -- just not a right that could be exercised on public streets (see R v. Banks).

In R. v Big M Drug Mart, the SCC held that the Lord's Day Act was unconstitutinal thus opening the door for many more people to work on Sundays.

In Osborne v. Canada, the SCC held that lower level government employees should be allowed to participate in the political electon process, ie. work for a candidate and the prohibition against such participation in the Public Service Employees Act violates the Freedom of Expression in the Charter.

In Slaight Communications the SCC held that an order by a Canada Labour Board adjudicator requiring an employer to write a specific letter of reference did not violate the employer's freedom of expression under the Charter (saved by s.1)

In the PSAC case, a case dealing with the right of government employees to strike on the basis of freedom of assocation, the court made its oft cited comments:

"Work is one of the most fundamental aspects in a person's life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person's employment is an essential component of his or her sense of identity, self-worth and emotional well-being. Accordingly, the conditions in which a person works are highly significant in shaping the whole compendium of psychological, emotional and physical elements of a person's dignity and self respect."