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On the Job - Pushor Mitchell's Employment Group

Are interns employees?

This seems to be a hot topic all across North America.

Interns often provide services to revenue-generating organizations including non-profits. There is no doubt that they contribute to the sustainability of these enterprises while also developing a skill or gaining practical knowledge. Traditionally, it has been considered that they are not employees. Therefore, it is assumed (perhaps incorrectly) that there are no Worker’s Compensation Board, overtime, minimum wage, Income Tax, CPP, and Employment Insurance obligations.

Cases concerning interns in the United States have gone both ways on the issue and there are appeals in process.

There appears to be no binding decisions in Canada on the issue of whether interns should be treated as employees.

In BC our Employment Standards Branch publishes interpretation guidelines which are not particularly helpful in making a determination: http://www.labour.gov.bc.ca/esb/igm/esa-part-1/igm-esa-s1-work.htm.

The reason for the uncertainty is that the typical definition of Employee in our legislation is broad and inclusive.

In my view those employers who are requiring interns to do work conducted by other employees are at risk of being declared an employer for these interns.

 

Article written by Alfred Kempf



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Workplace drug and alcohol concerns

Addressing drug and alcohol abuse in the workplace is a challenging and sensitive issue, as addictions sit at the crossroads of privacy law, human rights, occupational health and safety and management rights.

From a management perspective, substance abuse impacts several important employer interests and the employee’s ability to meet expectations flowing from the employment relationship. Some of these expectations include the employee’s ability to:

  • attend work punctually and regularly;
  • perform assigned duties competently and fully capacitated; and
  • perform assigned duties in a healthy, safe and conscientious manner.

Recognizing the competing rights and interests at play when concerns over substance abuse arise, it is important for management to have a clear understanding of how and when they should intervene.

 

When Substance Abuse is Suspected

Drug or alcohol dependency is now clearly recognized as a disability. For this reason, human rights law and the duty to accommodate become engaged when an employer either knows or ought to know of the disability. Recognizing this, if the employer suspects that the employee’s absenteeism or performance issues are related to substance abuse, it has a duty to make inquiries regarding the health of the employee before taking disciplinary action or other steps that adversely affect the employee’s employment.

In a sense, the “duty to inquire” is akin to an informal and internal investigation. It can include making notes and observations about the employee’s conduct (arriving late, slurred speech), the employee’s appearance (glossy or blood-shot eyes, odour) and of course speaking with the employee in question and his or her co-workers.

Naturally, meeting with someone suspected of having an addiction issue will not be a typical meeting or interview. The topic is very sensitive and it should be anticipated that the employee may deny the allegation, become defensive and possibly offended or aggressive. Management needs to be respectful, supportive and must recognize that the employee’s behaviour (including a denial) is a symptom of the disability. Misbehaviour associated with an addiction may be involuntary and should not necessarily be considered a culpable misconduct.

If the employee confirms a substance abuse problem, the employer should immediately begin to work with the employee to manage expectations and to identify and support a relevant accommodation plan. This plan can include a leave of absence to seek treatment and a flexible schedule to allow for appointments with doctors, counselors or support services.

If the employee denies having an addictions issue, the employer may then be in a position to address performance and safety issues through corrective actions. Even when an employee denies an addiction, management should clearly document the discussion with the employee, summarizing concerns raised regarding substance abuse and any discussions of accommodation. While the employer must be sensitive to the fact that denial of an addiction may also be a symptom of the illness, the employer will nonetheless be in a stronger position to address problem behaviour through corrective action and progressive discipline without raising discrimination concerns.

 

Mandatory or Random Testing

Some employers, particularly in safety sensitive industries, are inclined to take a proactive approach to drug and alcohol use by imposing random testing of employees. This type of testing has been the topic of significant debate in recent years due to its invasive nature and underlying human rights questions. In fact, random testing has even been the subject of a recent Supreme Court of Canada decision.

Where employers have argued that random drug and alcohol testing is necessary to promote safe workplaces, our courts have largely rejected this reasoning. Presenting a dangerous workplace will not in itself be sufficient to justify random alcohol or drug testing. For today’s safety sensitive employers, random alcohol and drug testing will be carefully scrutinized, and will only be permitted in a dangerous working environment where there is evidence of an existing general problem of substance abuse in the workplace.

Recognizing this, testing can be permitted where an employer has reasonable cause to believe that an employee is impaired, where the employee has been involved in an accident or near miss, or as part of a return to work program for substance abuse.

 

Conclusions

Addressing substance abuse in the workplace is complex and multifaceted, pitting diverse and competing interests in privacy, human rights and management rights against one another. In this environment, employers need to be vigilant by being respectful and supportive of disabilities and treatment plans, while also ensuring a healthy and safe working environment.

Employers who suspect that an employee has a substance abuse problem are encouraged to get legal advice to discuss the duty to inquire and their obligations under the duty to accommodate.

 

This article is the fourth in a series written on workplace investigations. Read previous entries in this series and watch HRVoice.org for additional articles coming soon.

 

David Brown is an employment lawyer with the Kelowna law firm Pushor Mitchell LLP. For more information on workplace investigations and other employment law matters, please contact David at [email protected].

The merits of any potential claim are always fact dependent. Readers should not take legal action, or should not refrain from taking legal action, in reliance on the information contained in this article and without first obtaining advice from legal counsel in their home jurisdiction.



Principals must register with WorksafeBC

If you are the sole active principal (“Principal”) of a business, you are probably concerned with many issues, like profitability and paying taxes. An important issue you must also consider is how you’ll maintain your livelihood if you’re injured on the job. To that effect, it’s important that as the Principal, you register and meet all WorksafeBC requirements to ensure you’re covered in the event you’re injured. If you fail to meet these requirements and you are injured on the job, the Board will likely deny you coverage.

For example, in WCAT decision WCAT-2009-03348, the Principal of an auto repair shop was seriously injured on the job and was blinded in one eye. The Principal’s company’s registration with the Board had lapsed and he tried to apply for coverage after his injury. Despite his sympathetic circumstances, the Board denied him coverage and it seems he was left without recourse.

If you’re unsure whether you’re covered, you must follow up with WorksafeBC to confirm you are in fact covered. There are circumstances where a sole active principal might believe his registration and premiums are being remitted to the Board by another company, but they in fact aren’t. For example, in WCAT decision WCAT-2011-02017, the Board denied a claim where a Principal was injured while carrying on business as a window and door installation sub-contractor through his company (“M Company”). The Board denied coverage and held that notwithstanding the individual’s argument that his contractor had been remitting payments to the Board on his behalf, M Company was a standalone entity requiring standalone registration. The Board reached this decision despite the fact that the contractor provided M Company with the majority of its work, exercised significant control, paid for tools and materials, set deadlines, retained responsibility for quality control, and controlled contracts.

Long story short, if you are operating a small business in B.C., or are a Principal, it’s important that you ensure you are compliant with WorksafeBC requirements. To accomplish this task, engage WorksafeBC in discussion about your status or contact an employment lawyer to assess for you.

 

Article written by Wesley Forgione



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When workplace investigations go wrong

For a variety of reasons, workplace investigations are becoming increasingly common in businesses of all sizes. There are a number of reasons for this, including compliance under law, requirements under collective bargaining agreements and best practices in human resources. While the benefits of effective investigations should not be understated, it’s equally important for companies and HR professionals to recognize the legal implications of investigations gone wrong.

 

#1 – Privacy

While an investigator is tasked with gathering evidence and information, he or she must also be sensitive to privacy concerns. In British Columbia, most businesses will fall under the BC Personal Information Protection Act (PIPA) or the Federal Government’s Personal Information Protection and Electronic Documentation Act (PIPEDA).

This legislation governs the collection and use of personal information for both employees and non-employees. An unlawful use or disclosure of personal information by an investigator can quickly lead to a complaint to a privacy commissioner and in some cases a lawsuit for the tort of “intrusion upon seclusion”.

 

#2 – Workers’ Compensation

Under the BC Workers’ Compensation Act, there are a number of instances where employers are required to conduct investigations, including in responding to a workplace injury or death and if occupational health and safety concerns are raised.

While WorkSafeBC is not normally quick to issue sanctions, failure to investigate can lead to a complaint being filed and a WorkSafeBC field investigator being appointed. WorkSafeBC also has the authority to issue penalties and fines in response to a company’s failure to investigate.

 

#3 – Defamation

Defamation arises when a publication, either spoken or written, is made which tends to lower a person in the estimation of members of their community. Defamatory statements do not normally give rise to a claim if they are truthful or if the publisher has qualified privilege, meaning an interest or a legal, social or moral duty to publish the information.

In the case of a workplace investigation, employers will generally have qualified privilege to investigate accusations, even if these accusations are false. However, investigators must also be vigilant to explore complaints responsibly and professionally and to limit unnecessary disclosure or publication.

 

#4 – False Imprisonment

The tort of “false imprisonment” is a bit of a misnomer, as there is no need for a prison or any kind of incarceration. Rather, this type of legal action arises when someone is intentionally confined by another person without legal reason.

In the course of a workplace investigation, false imprisonment may arise during the witness interview. It is important that the person being interviewed be made aware that they can leave at any time and that they are not being held against their will.

 

#5 – Assault and Battery

Clearly, any investigation which has resulted in battery has gone very wrong. However, investigators should also be very clear as to what constitutes the tort of assault and battery. Briefly stated, assault is the intentional creation of the apprehension of imminent harm. No physical harm occurs, but rather the apprehension of harm (think threatening someone with a fist). Battery arises when someone causes an offensive contact such as a punch, kick or shove.

In heated discussions, tempers can flare. For this reason, during the course of an investigation, employers must be aware that a menacing gesture, a push into a chair, or striking an object, creating a projectile, may all amount to the tort of assault and battery.

 

Conclusions

Investigations enhance company transparency, help correct problem behaviour and address interpersonal conflicts. When properly conducted, they can also help limit corporate liability and avoid the costs and inconvenience of litigation. However, investigators must also be mindful of the legal implications of poorly conducted investigations. In most instances, it is this author’s opinion that the concerns raised in this article will be overcome with a professional, responsible and good faith investigation into legitimate concerns.

 

Article written by:  David Brown

David Brown is an employment lawyer with the Kelowna law firm Pushor Mitchell LLP. For more information on workplace investigations and other employment law matters, please contact David at [email protected].

 

The merits of any potential claim are always fact dependent. Readers should not take legal action, or should not refrain from taking legal action, in reliance on the information contained in this article and without first obtaining advice from legal counsel in their home jurisdiction.



Read more On the Job articles

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About the Author

Pushor Mitchell's Employment Group assists clients in meeting the challenges of today's workplace, including: hiring, firing, management, discipline, contracts, human rights, employment standards, privacy and many other related issues. In their column, the authors' provide practical and interesting information on employment law topics for both employers and employees.

The authors: Alfred Kempf, Greg Pratch, Joni Metherell, Keri Grenier, Mark Baron, and Mark Danielson.

Have an employment law topic you want to see addressed? Comments or suggestions are always welcome.

Email: [email protected]

Additional information available on our website: www.pushormitchell.com

 




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The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet presents its columns "as is" and does not warrant the contents.


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