The Great Divide - Not So Great For Morale

(HRD) There is little doubt there is a large divide (Grand Canyon pics may provide a visual of the size of the gap) between what employers feel is justified, in maintaining the diligence of their staff, and what employees feel is appropriate oversight by their bosses. While the modern trend for many businesses appears to be to provide as much freedom and accommodation for employees as possible, there are still companies out there who seemingly wish to control every aspect of an employee's time while on the clock.

Stuck in the Middle With You

Somewhere in the middle of these polar extremes are the findings of various courts and commissions who have weighed in on what rights employers have versus the rights of those people they've hired. Here is a list of controls over employees various employers have used and their legal standing in Canada.

Drug and Alcohol Testing; Oh Say Can You Pee?

After a number of lawsuits that pitted unions versus employers over the issue of substance use testing, the Canadian Human Rights Commission issued this interesting policy paper outlining their position on the subject.

The first point the CHC makes is that "inappropriate use of alcohol or drugs can have serious, adverse effects on a person's health, job performance and workplace safety". Fair enough. Few would argue that point although the policy paper is quick to counter it by stating, "safety must be ensured in ways that do not discriminate against employees on the basis of a prohibited ground of discrimination".

The document goes on (as government documents tend to do) to underline their basic tenet "drug and alcohol testing are prima facie discriminatory". In other words, the basic idea of testing is prejudicial and any initiatives to introduce it to a workforce must demonstrate an over-riding safety issue to allow the discriminatory practise.
This means that an employer who can demonstrate that the presence of drugs or alcohol may represent a safety hazard for certain employees; bus drivers, pilots and explosives experts, for example, can demand these employees be tested for impairment or recent use. These tests can only occur under certain circumstances, though, such as;

• only after a job offer has been made,
• only for employees engaged in work that can be proven that being under the influence of drugs or alcohol may compromise their safety or the safety of others,
• following an incident where substance use is suspected to have caused an accident.
• If an employee has been identified as having a dependency problem and, therefore, has a disability, the employer must provide "reasonable accommodations", such as offering rehab counselling services, but may require substance monitoring going forward.

It is critical to note that while employees who have a demonstrable (i.e. by the employee's own admission) substance dependency problem, and therefore a disability in the eyes of the CHC, recreational users have no such protection. They can be immediately let go for proven drug or alcohol use on the job. It is also worth mentioning an employee has a legal right to refuse a drug test but the company has a legal right to deny you employment based on your refusal, if the demand for the test falls within the parameters outlined.

Polygraph Testing; The Truth is Out There... Or Is It?

Although the Supreme Court of Canada has rejected polygraph evidence since 1987, due to accuracy concerns, lie detector technology is still in use in Canada by police forces as an interrogation tool, as well as for screening employees for certain sensitive roles in government, such as RCMP members and CSIS operatives, (although sadly, not the Senate). Pre-employment or workplace investigations, such as for theft of company assets, polygraph testing is only disallowed by law in Ontario. In other provinces, police may ask staff to take a polygraph test but can't force them to submit to it. As well, employers cannot make taking the test a job requirement and cannot use your refusal to discipline you.

Testing... 1... 2...   3... Fitness, Cognitive and Skills Testing

Generally, testing done with work applicants to ascertain their suitability for employment occurs after a job offer is made, but can be beforehand. Testing prior to a position being offered could be viewed as discriminatory by the courts, which makes the practise risky from a legal standpoint. As well, whatever tests are developed for the new hires must:

• be applied to all new hires in similar job categories, not just select individuals,
• be relevant to the job that was applied for, (Don't test keyboarding skills for a labour job or weight-lifting ability for a secretarial position.)
• cannot reveal any of the discriminatory factors that prospective employers cannot inquire about such as race, religion, health, gender, etc.

Searches of Your Work Environment

For those among us who feel they should have a certain amount of privacy at work and be free from invasive searches; there is much bad news on this front. Courts have sided with employers for the most part when it is company property being searched. This means a boss can do snap inspections of all of the following:

• Office (including allowing for the installation of closed circuit TV monitoring)
• Desk (including a peek in your drawers - make sure they're clean)
• Computer (including emails - maybe save juicy stuff for when you're at home)
• Locker (including the right to cut your lock off)
• Vehicle (including having on-board GPS monitoring and recording)
• Phone (including texts - avoid sexting on work phones)

Employers have been cautioned to provide some privacy for infrequent phone calls to spouses regarding such things as child care issues or medical appointments. Still, the general rule of thumb (the one employees are usually under) is that anything owned by the company may be searched by the company.
Searching employees is a whole different ball game, however, and should be avoided. Employers do not own their employees, unlike the offices, desks and vehicles they use. If there is an issue such as theft, where management feels a search of an employee is warranted, the correct response is to call the police. Any other approach is simply inviting legal problems, which may seriously damage your staff morale and your corporate brand.

Finding the Balance

Balancing workers' rights with the rights of company officials is an ongoing process. Whenever considering any of these employee controls, employers must weigh the benefit with the potential damage to morale, staff trust and legal ramifications. While we endeavour to be diligent about explaining these legalities, we are, in no way a replacement for workplace legal advice from a competent lawyer specialized in labour laws. Your HR department should be at the vanguard of any control decision to ensure a full accounting of risks and possible outcomes whenever any oversight initiative is undertaken.