HR Professional - October/November 2008 - (Page 34)

COVER STORY HR LAW IN THE FACEBOOK AGE employer with an opportunity to better assess the employee’s medical state. “The termination was eventually conducted carefully and effectively, with the full support of the employee’s legal counsel,” explains Thomlinson, “and after we worked with the employer to collect evidence to help demonstrate that the decision had been made prior to the accident.” AVOIDING MISTAKES Sometimes employers make the mistake of trying a “heart-to-heart” conversation with a struggling employee to discuss concerns. This can make things worse, says Thomlinson. “ T h i s m ay m a k e s e n s e i f there’s a real desire to support the employee back to acceptable performance,” she says. “However, in our experience, this is done because either the employer thinks they have a legal obligation to have such a meeting before terminating (which they do not) or the employer hopes it will prompt the employee to quit once they see the writing on the wall.” In either case, Thomlinson says, the end result of such a meeting is usually the commencement of a disability (usually stress) leave, leaving the employer with limited options going forward. One way to avoid this problem is to work more closely with counsel eit her out s ide or i n s ide t he company. One man who agrees is John Martelli, senior legal counsel and corporate privacy officer at nuclear power generator Bruce Power. “Employees have become much more litigious over the last 15 years,” he says. “They know their rights, in part because of the Internet.” Martelli is a firm believer in HR and corporate counsel combining efforts, but he also understands there can sometimes be territorial disputes between the two functions. These can be resolved when both sides realize what the other offers. “Human rights law is a very specific, very specialized field,” he explains. “I get the updates, I go to conferences, I read case law—that’s my job, and HR realizes I can help them. I realize that HR people have skills a lawyer doesn’t. They know the business better than I do—the collective agreement for example.” Mediation is another way to avoid litigation, and one that employment lawyers say is underused. “You could have an early mediation when the claim is about to start,” says MacKillop, who gives courses on litigation avoidance. “If you don’t get a deal, maybe have another mediation after pre-trial examinations.” He says the key for employers is to be open to the possibility of creative solutions to litigating—like building a clause that requires employees to go to arbitration into their employment contracts, for example. One way or another, business always comes down to money— and litigation is expensive. But sometimes you have to spend money to save money. “Employers are always allocating money towards legal fees but don’t always know how best to use their legal ‘allowance,’” says Thomlinson. “But if you think about the legal fees that come with defending against this kind of litigation, especially at the Human Right’s Commission—which may increase since the changes last June. Our burgeoning use of the Internet and other communication technologies are also making big waves in HR law. Pictures posted to a website can go viral worldwide in minutes, so the idea of someone behaving badly wearing the company logo has vast implications. And social media like Facebook have become public places with permanent records of what employees might have to say about their workplaces. “Not everyone who jumps onto these sites are aware that they have just lost any hope of privacy,” says Michael Sherrard of Sherrard Kuzz LLP. “You have to talk to your employees about things like language or potentially threatening online conduct.” He says attempts to settle this in the courts have turned on questions such as, was a policy clearly communicated and was there consistent accountability across the workforce? “But it should be a practical policy,” Sherrard stresses. “Some companies have adopted a zero tolerance (absolutely no personal computer use on company time or barring access to Facebook), but is this realistic today when we have people working long hours to say they can’t order their groceries, or talk to a friend or their children online?” Richard Skinulis is a Toronto-based author and freelance writer. 34 O c t o b e r / N o v e m b e r 2 0 0 8 HR P R OF E S S I ON A L

Table of Contents Feed for the Digital Edition of HR Professional - October/November 2008

HR Professional - October/November 2008 Contents Editor's Letter Contributors Leadership Matters Upfront Legal Compensation Human Capital Talent Management Murphy’s Law Wise Counsel On Message HR 101 Interview with Joseph McCool Off the Shelf The Last Word

HR Professional - October/November 2008

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