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.