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February 2018
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Employment issues

This morning I went to Starbucks and paid partly on my Starbucks card and partly with a $ 20.00 bill. After I paid on the Starbucks card the balance was $ 2.86. The Barrista could not figure out the change.

Thankfully I was able to draw on my training as a bakery clerk at Casey’s Bakery 33 years ago and “counted up” the change to the $ 20.00. You know, 15 cents is three, add 2 is five dollars, add 15 is $ 20.00. As I type this I realize I should not have started that sentence with “you know” because clearly, this Barrista did not know.

The point of this Blog/rant is not to sound like I’m 100 and want kids to get off my lawn, the point is to talk about building blocks for jobs/professions. I’m going to suggest Barristas should know how to make change before they are hired and that is a building block for their job.

As a lawyer who works with many employers, I am always happy to help clients created a plan that helps their employees develop the skills they need to advance in their company. Many small employers are seeing the value of paying for continuing job training and having employees shadow those in management periodically to get a sense of what management does and how their jobs fit into the building blocks of the entire company.

My concern as a lawyer is to ensure the employer’s good deeds do not get “punished” if the employee leaves the company. An employee handbook that clearly spells out what is paid for and what is not, is very important in determining if something was an obligation or a “gift”. Depending on the value of the education, if this is not set out clearly, the employer could be on the hook for a lot of money if the employee is terminated. That will often leave a sour taste in an employer’s mouth and the remaining workforce ends up suffering.

Don’t be that employer. Document your policies. Review your employees regularly and follow your policies. Your business will run more smoothly if you have a handbook.

Also, Starbucks, perhaps a calculator on the counter could help counting-challenged Barristas?

Inga B. Andriessen

I was at a trade show recently, not a boring legal trade show, but the Outdoor Adventure show (hey, I have a life that extends beyond Court Rooms – honest!) and I was overwhelmed by the way many vendors were blurting out information as we walked past their booths. Many of those people spoke so quickly, I had no idea what they were marketing and apparently neither did they. One vendor told us how her product was great for “exhibitionists”: she meant exhibitors. She was mortified when she realized she had been saying “exhibitionists” all weekend.

Fast forward to the Monday after that weekend and I had a great meeting with some entrepreneurs excited about starting a new venture together. I took the time to listen to their thoughts, then slowly explained what legal help we could provide that would suit their needs.

I didn’t go on in detail about the facts from latest Court decision that would impact their situation, I didn’t recite a law from memory and I didn’t use a lot of legal language. I listened and then, in plain English, gave them my advice.

Many lawyers are like the vendor selling to exhibitionists. They speak quickly and are not even aware of what they’re saying. They don’t connect with their clients as business people, they preach down as if law is a pulpit and the client is listening in a church pew (and has to put a lot in the offering plate).

Business law is a conversation between a lawyer and their client. Lawyers need to listen up and be in tune with their client’s business.

If you’d like to talk, I’m listening. (with apologies to Frasier Crane)

Inga B. Andriessen JD

It’s July 1, let’s celebrate 147 years of our Country by bringing the commercial use of email to a screeching halt.

I’m not going to repeat what you need to do to comply with the Canadian Anti-Spam Legislation here. Scroll down our Blog and read the CASL Blog for that information.

What I will tell you is that I think this legislation is overkill.

I think this legislation is too expensive for Small Business to comply with.

I think that making Officer & Directors personally liable for email violations is wrong.

If you agree, please write your MP and let them know.

In the mean time, it’s July 1, 2014. Save those unsolicited emails you receive, they are worth $ 200/email come July 1, 2017.

The Alberta Human Rights Tribunal recently ruled in favour of a foreign trained Engineer who claimed he was being discriminated against as he had failed the proficiency exam for Engineers in that province three times.

The Alberta Human Rights Commission ordered the Engineering body to assign the applicant a mentor, conduct a review of his credentials to see if the Engineer can be exempted from certain requirements and to pay him $ 10 000.00 for the discrimination.

Meanwhile in Ontario, there is a “commission” of a different kind currently deliberating: this is the Elliot Lake Inquiry.

The Elliot Lake Inquiry is investigating the collapse of a shopping mall that killed two people and economically devastated a small community. After the Inquiry concluded taking evidence a Licensed Engineer, who had declared the Mall safe shortly before its’ collapse, was charged with two counts of criminal negligence causing death and one count of negligence causing bodily harm.

This Engineer had had his own encounter with a hearing before he made a final inspection of the Elliot Lake Mall. The Engineering governing body had stripped the Engineer of his credentials and ordered him to pass a technical exam or lose his certification for good. He never wrote the exam. Somehow, he was still hired to inspect the Elliot Lake Mall: it would appear he missed something.

Requirements for many jobs are there to ensure public safety: medicine, engineering and dare I suggest, law, all have requirements to ensure that people who hire those professionals are getting a guaranteed quality of knowledge and service. Watering down that standard is unacceptable: a standard is something everyone has to meet regardless of age, gender, race, sexual orientation or creed (these are not all the prohibited areas of discrimination, but they are most).

It is not discrimination to require an Engineer to prove s/he is able to do their job at the level expected in Canada: it is public protection.

Inga B. Andriessen JD

Oh the excitement in the media recently: the Canadian Government spied on the activities of Passengers at (presumably) Pearson Airport who logged onto the free Wi-Fi.

Shocked? You shouldn’t be.

My first thoughts in reading the story were “who has an expectation of privacy on a free Wi-Fi”? Every time you log onto Wi-Fi, you are using a router, the router can capture all the data you are running through it. You might want to consider that the next time you pull into a Tims to check your email.

I then realized, in listening to the public reaction, that many people do not understand how the internet works and, applying this to Business, they have no clue about ownership of emails and other internet activity that originates at work.

With respect to corporate emails. The employer owns the email address. The employer can review all sent/received items at any time. Think of a corporate email address the same way you do corporate letterhead: anything sent from it is on behalf of the company.

Moving onto internet privacy at work: all businesses should have an Internet Use Policy in their Employee Handbook. This will set out what you allow your employees to use the internet for at work as well as what is forbidden. It is a good idea to remind everyone in the policy that as the Employer, you can review work computer screens at any time and as such, passwords and other personal data could inadvertently be captured by the employer.

Everyone should always “think before you surf” – where are you, how are you sending data and how private does this need to be? If you think before you surf, your expectation of privacy will be realistic (i.e. there is none) and you will be making an informed surfing decision.

Inga B. Andriessen JD

Have you heard the ads on the AM radio stations lately? You know the ones that say “If you have been fired, don’t sign anything without calling XYZ law firm: we don’t get paid if you don’t get paid.” If you have not, you can bet your staff has, and this is part of what is driving up the increase in wrongful dismissal claims against employers in Ontario.

The law suit awards to employees are often in the one month/year of service range (much greater than the one week/year to a maximum of 8 weeks under the Employment Standards Act) – no wonder there is so much competition to represent the recently terminated.

As a law firm that only represents Employers, our job is to protect you from finding yourself having to pay a lot of money in lieu of notice. The way to do this is at the start of the Employment relationship, by having both parties sign and Employment Contract. This contract ensures that the employee knows exactly what could happen on termination and it provides the employer with certainty as to the cost of terminating an employee.

Drafting an Employment Contract must involve a lawyer as the law is constantly changing and you cannot contract out of certain requirements or the entire agreement is non-binding.

Before you make that next hire, give our firm a call, we’ll ensure you are well protected.

Inga B. Andriessen JD

This past week I spoke to The Canadian Tennis Professionals Association and the Professional Tennis Registry at the Rogers Cup in Toronto about Social Media and the Law. Part of that conversation involved encouraging each club to decide what their specific expectations were for their employees and then using those expectations to craft a policy for the use of Social Media.

What does your business expect from its employees? What does it expect from its’ executives?

If you don’t want, for example, your CEO, to stumble down a main street in Toronto while intoxicated, posing for photo opportunities, you may want to spell that out in their Employment Contract. If you think back to the two Blackberry Executives who were let go after being drunk & disorderly on a plane a year or so ago, you’ll see that it is possible for a lawyer to craft clauses in contracts that require good behaviour when representing your business.

The problem that businesses frequently encounter with expectations surrounding behaviour is their failure to specify what is expected in writing. If you don’t set out what behaviour you expect, you will have a hard time convincing a Judge that the employee knew the behaviour was bad and that you should be allowed to fire them for cause for not adhering to your good behaviour standards.

Expectations are not just limited to employer/employee relationships. If you do business with a customer on a “handshake” and you don’t meet what the customer’s expectations were, you have little evidence to present to a Court that you should still be paid for the service/good you provided.

All businesses have expectations. There is nothing wrong with putting those expectations in writing. You will not lose a customer worth having by requiring they sign an agreement detailing what you will provide and what they will receive.

When it is in writing there are no blurred lines regarding business expectations. If you want to enforce your expectations, Judges want it in writing, so let’s give them what they want.

Inga B. Andriessen JD

Mike Duffy, Nigel Wright, Rob Ford – all men whose reputations have been taking a hit over the past week. Each of these individuals is choosing a different way to protect their reputation, but leaving aside personal reputations, what about your business reputation?

The issue of defamatory remarks by anonymous posters has become a business issue many have had to tackle – when hit with these remarks it is important to evaluate their impact and what, if anything, you intend to do about it.

If someone posts something defamatory about your business in an obscure blog that receives no traffic and does not appear in search results, then pursuing the poster will attract more attention to the false comments than leaving them alone. Before proceeding “on principal” ask yourself if the legal fees will exceed the monetary impact the posting has on your business. If the answer is yes, then you need to consider if you must proceed in any event to prevent yourself from being targeted by others or if it is better to simply let the blog comments die an slow, unviewed death.

Your business reputation extends beyond bad reviews on Yelp or in Blogs, it also extends into your credit relationships with customers. I recall vividly a young dentist we assisted many years ago. The dentist set up practice in a neighborhood and quickly found that many of the cheques for post-dated payments were being returned NSF. The dentist was getting a reputation for doing work without taking immediate payment and many were taking advantage of this. Ultimately, the dentist chose to sue on several accounts and “surprisingly” the dentist was no longer the victim of people seeking services with payment over time. The dentist has gone on to have a thriving practice, dispelling the concerns of many business owners that if they sue on for money that is owed, they will lose customers.

As lawyers we are always taught, you have one reputation, you don’t want to ruin it.

Are you protecting your business reputation from ruin?

Inga B. Andriessen JD

I snagged the title to this Blog from a Huffington Post Blog by Krizia. The original blog described the evolution of a small business called Lotus Premium Denim. This Blog is not about Denim.

The title of the Blog grabbed my attention because it refers to two things many lawyers fail to do, but two things I know that we do at our firm.

The title of the Blog grabbed my attention because it refers to two things many lawyers fail to do, but two things I know that we do at our firm.

Delivering on our promise is critical in maintaining the client relationships we have established over the past 20 years. I’m proud to say that many of the clients we have today are clients we have had for the entire 20 years the firm has been around.

The keys to “promising” as a lawyer in my opinion are:

1. Communicating clearly to the client what you will be charging them.
As lawyers all we have to sell is our time, but how we sell it (by the hour or by the task) is an important difference and clients must be told about this up front.

2. Honestly evaluating any litigation and being clear, even if you have a strong case, there is always a possibility of a Judge finding against you.
Clients have to be told Judges are human and let’s face it, there is a reason we have Courts of Appeal.

3. Before starting any litigation, assess the likelihood of collecting on a Judgment and advising the client if the only result will be a “pretty piece of paper stamped Judgment”.
No one just wants a pretty piece of paper and why should the law firm be the only party that benefits from litigation?

If you are our client, we understand you and we promise to continue delivering excellent legal services to you.

Inga B. Andriessen JD

As practicing lawyers and business people, we’re not supposed to weigh in on contentious issues; so this week I’m not going to talk about the Middle East, Mayor Ford, plastic shopping bag bans, the Argos or the Nicki Minaj and Steven Tyler twitter feud. Except that I sort of am.

Part of the Lunch and Learn we held yesterday at the firm dealt with social media in the workplace. It’s an interesting topic from a legal standpoint and one that generated a lot of conversation from clients. One area of confusion however, is the balancing of rights between freedom of expression and the privacy and reputation rights of the employer. How much restraint is reasonable and what kind of social media policy infringes on an employee’s right to free speech?

There are a lot of complexities at play. If the employer has a social media account (like ours) it’s completely reasonable for an employer not to allow an employee (like me) to use the corporate account to vent about their political beliefs or to make insensitive comments about a protected group. That reasonable limit may even extend to the employee’s personal account, depending on the extent to which they represent the company as a “public face.” The Israeli Defense Force is dealing with a bit of a PR disaster this week as pictures of their social media guru wearing blackface and calling himself Obama are being circulated on Facebook. Add that to last week’s circulation of pictures of active duty personnel posing for smiley faces on Instagram while they prepared for a possible ground campaign in the West Bank and you have an organization that probably needs to clarify its social media policy.

Inga’s advice yesterday was helpful I think, and cut through a lot of the competing rights confusion – the policy has to be reasonable and it has to deal with actual harm. If the way someone uses their social media platform of choice isn’t harming the employer in a real way, then the policy shouldn’t be otherwise restricting their behaviour. But where there is the possibility of defamation, leaking confidential information, or devaluing the employer’s brand, a good policy can be the most effective mitigation strategy around.

Scott R. Young.