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The Legal Playing Field

Everything I needed to know about the law I learned on the softball diamond

SUNRISE or Sun Set on Employer Communication Strategies?

Posted in Baseball, Collective Bargaining, Labour Law, Uncategorized

The 2013 Decision of the Ontario Labour Relations Board (“the Board”) in the case of Service Employees International Union, Local 1 Canada v. PRP Senior Living Inc. (colloquially know as “the Sunrise Decision“) and subsequent application thereof has definitely caused some uncertainty in the employer community concerning the scope of the employer ‘right of free speech’ in the face of a union organizing campaign.

In the wake of the Sunrise Decision does Section 70 of the Labour Relations Act (“the Act”) still meaningfully recognize the right of the employer to express its views concerning unions and unionization or has the sun set on the ability of the employer to participate in the important unionization decision by employees?

Section 70 reads as follows:

” No employer…and no person acting on behalf of an employer…shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, BUT NOTHING IN THIS SECTION SHALL BE DEEMED TO DEPRIVE AN EMPLOYER OF THE EMPLOYER’S FREEDOM TO EXPRESS VIEWS so long as the employer does not use coercion, intimidation, threats, promises or undue influence.” (emphasis is added).

Those of you who are old enough to remember the 1970′s -1980′s era New York Yankee baseball teams under owner George Steinbrenner and Manger Billy Martin will recall that Billy was frequently tossed from ball games by the Umpire for his penchant for ‘excessive communications’ and over zealous remonstrations regarding on-field decisions.

Now admittedly not all of Billy’s advice to, and interactions with, the Umpire’s was objectionable per se.

Baseball Managers have a recognized right to question certain decisions and a certain degree of interruption of the game is tolerated and even expected as part of the game.

However, when Billy started to kick dirt over home plate or on to the Umpire’s shoes

or dig up the bases and remove them from the playing field altogether to make a point about his disaffection with ‘a call’, then, that led inexorably to an early shower for the Yankee skipper.

In other words there was a limit to the Manager’s freedom of expression and it was frequently the ‘cumulative effect’ of Billy’s tirades that generally resulted in his early excommunication from the baseball playing field.  This became known in the parlance of the game as ‘the Billy Martin factor’.

The Sunrise case dealt with unfair labour practice allegations and a penalty certification application by the trade union in the face of a lost certification Representation Vote.

At issue in the Sunrise case were the following employer actions amongst others:

- a great many one-on-one meetings between Managers at all levels with employees in the workplace over a protracted period of time leading up to the Representation Vote;

- dissemination of a good deal of employer campaign related literature that was contentious, including at least one memo that was deemed by the Board to include inferential threats to employee job security if the union were to be certified;

- showing of an employer video on trade unions and their campaign tactics that was contentious; and,

- Town Hall meetings involving Senior Management immediately prior to the Representation Vote.

In the course of its Decision in the Sunrise case the Board offered some guidance, as follows, concerning what it views as the scope of permissible employer communications during a union organizing campaign:

1.  The Board recognized that many of the employer’s actions and communications might have been permissible depending upon the context, although the Board found violations of Sections 70, 72 and 76 on the facts of the Sunrise case;

2. The Board clarified that it does not want to get into ‘policing’ propaganda of each party even where unfounded allegations of lying or similar misconduct are at issue.  This will essentially be viewed as puffery by one party or the other, and the Board found this to be part and parcel of the democratic process;

3.  The Board stated that an employer need not be neutral in a union organizing campaign (emphasis added);

4.  Very Importantly, the Board states that the right of an employer to express its views is a “SUBSTANTIAL RIGHT” (emphasis added); and,

5.  The Sunrise Decision is authority for the proposition that the ‘business as usual defense’ may protect the use of certain employer communications vehicles, channels and messaging during an organizing campaign if those vehicles, channels and messages have been in regular usage prior to an organizing campaign taking place.  However, in the Sunrise Decision the Board held that the employer’s communications were “…out of the ordinary course…” and therefore offended the Act.

In the Sunrise Decision the Board effectively ruled that there are limits on employer free speech and that too much speech, in the workplace, where the topic is the trade union and particularly the employer’s views on unionization, can, in the context, amount to ‘undue influence’ in contravention of Section 70 of the Act.

The Board further asserted that Sunrise took “unfair advantage” of the access which it had to employees and the authority it had over the employees “…to sway the will of the employees…” on the issue of union representation.  The Board further stated that a continual stream of one-on-one meetings is “…very disturbing…” to the Board in this context.

While there is no doubt that the Sunrise Decision, apparently unchallenged before the Courts, represents the high water mark on the limitation of employer free speech rights, it is very significant that, in its Decision, the Board took pains to express that it was “…the cumulative effect…” of the subject employer communications that tipped the balance against the employer in the Sunrise case.

In other words ‘the Billy Martin factor’ is very much a live issue on the legal playing field of the Ontario Labour Relations Board.

CAN THE ONTARIO GOVERNMENT MASTER ‘MONEY BALL’?

Posted in Baseball, Collective Bargaining, Ontario Government, Strategy, Uncategorized

These days the concept of ‘Money Ball’ is ubiquitous.   

Even the Toronto Maple Leaf hockey team wants to play money ball.  Perhaps that is the answer to nearly 50 years of frustration for Leaf fans…having the team switch sports.

The ‘Money Ball’ concept evolved from the mind of baseball guru William Lamar “Billy” Beane III., GM. of the Oakland Athletics.  Year in and year out, Mr. Beane gets more bang for his buck than any other major league baseball team and manages to put a motivated, entertaining and high performing squad on the playing field.

Now the Ontario Provincial Government needs to play ‘Money Ball’ in its collective agreement negotiations with its own workforce and the broader public sector.  But does the Government have the instincts and creativity to accomplish quality results?

The thing about collective bargaining is that you never fool the other side, … and certainly not without dire consequences.  You obtain a viable contract and good labour relations between the parties by bargaining fairly and consistently and engendering respect for your bargaining positions even where those positions are difficult to swallow for the party opposite.  In such circumstances you need to show the other side that there is mutual gain to be had from signing on to the tough positions you espouse.

The Ontario Government has been very public about its bargaining strategy.  ’No wage increases unless savings can be found elsewhere’ in the relationship between the parties.  This sounds like hardball, but, in reality, it may be more like 3-pitch lob ball, where everyone is bound to hit the ball and where there are no strike outs … ever!  Is this a ‘Money Ball’ recipe? I don’t believe so! Certainly not on it’s own.

Can the Provincial Government achieve ‘labour peace’ while at the same time attaining its highly publicized goal of eliminating the Provincial deficit by Fiscal Year 2017-2018?  Yes, it can.  But not by way of smoke and mirrors.

This is the time for tough but fair negotiations.  The public sector unions know that the Government has a serious deficit problem.  But, they also know that the Government has a majority in the Legislature and does not face the threat of defeat at the hands of the Opposition parties … for a very long time.  The unions want to assure their members of some degree of job security and that their hard earned benefits are not about to disappear in their entirety.  By the same token the Government wants labour peace and wants to demonstrate that it is a good manager of the public purse.

My advice, to the Provincial Government, reduce the wage and benefit costs absolutely in this round of bargaining, and resist the temptation to just hold the line.  That will not be good enough. This is not the time for half measures and political or public relations shell games. If the Government misses the chance in this round of bargaining they may never recover during the balance of their mandate.

But how can these difficult objectives be accomplished?

Remember the secret to ‘Money Ball’ is a motivated, high performing team on the playing field.  Accordingly:  1. It’s time for more ‘pay for performance’.  2. It’s time for real incentives for finding cost savings in the provision of public services. 3. It’s time to align public and average private benefit plan provisions on a go forward basis. 4. It’s time to meaningfully turn over/reduce the public sector through ongoing, not one time, programs to support attrition.  

On balance, it’s time to deliver much more for much less.  That is a winning formula. That is ‘Money Ball’!

If The Government can’t produce perhaps it’s time to summon Billy Beane to consider a consulting gig in Ontario. After all, as taxpayers we have $12.5 Billion reasons to seek a new playing field.

 

Rule Changes Present an Opportunity for Creativity on the Legal Playing Field

Posted in Uncategorized

The new Canadian Federal legislation colloquially referred to as the Canadian Anti-Spam Law (“CASL”) came into effect on July 1, 2014.  The actual name of the legislation represents a disturbing trend on the part of legislators to name legislation in the broadest and most far reaching terms imaginable, specifically, the title of this legislation is:

“An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities …” S.C. 2010, c.23, as amended.

Generally speaking, the CASL provisions change the rules on how a party engaged in commercial activity can communicate electronically with actual or potential customers, clients and the like.  However, there are also some potentially meaningful consequences of the CASL provisions which may impact on labour relations issues including permissible communications between employers and their employees during union organizing campaigns and as between trade unions and employees whom the union wishes to organize.

In advance of the 2014 baseball season, Major League Baseball amended its rule book to allow team managers to challenge a substantial number of additional umpire’s calls concerning plays on the field, exempting from this right of challenge any ability to question balls and strikes, other than outfield foul balls.  At first blush, this baseball rule change seemed to respond

appropriately to calls for the modernization of the game and the effective use of technology in the game and to the trend permitting in-game challenges particularly in professional football.

However, some unintended consequences have arisen as a result of this apparently positive rule change.  Team managers have learned to be creative in preserving their limited number of challenges (2 per game).  So, now we are faced with a number of in-game putative challenges by team managers whenever a “close play” occurs.  In such circumstances, the manager inevitably shuffles on to the playing field to engage with the umpire and stalls the conversation just long enough for the bench coach to review the play in slow motion on replay equipment and then signal the manager as to whether or not a formal challenge will be fruitful.  In the interim, the game is at a standstill.  Not exactly exhilarating, ticket selling, edge of the seat stuff but that’s modern technology for you.

 

Under the CASL provisions (Section 1(2)) a “commercial electronic message” is defined as an electronic message that, having regard for the content of the message, the hyperlinks in the message to content on a website or other data base, or the contact information contained in the message, it would be reasonable to conclude has as its purpose, or one or more of its purposes, to encourage participation in a commercial activity, including an electronic message that:

  • Offers to purchase, sell, barter or lease a product, goods, a service, land or an interest or right in land;
  • Offers to provide a business, investment or gaming opportunity;
  • Advertises or promotes anything referred to above; or
  • Promotes a person, as being a person who does anything referred to above.

Section 6(1) of the CASL provisions prohibit a party from sending, or causing to be sent, a commercial  electronic message unless the person to whom the message is sent has consented to receiving it and unless the message complies with certain formalistic requirements concerning identification of the person who sent the message, information concerning the entity on whose behalf the message is sent and an unsubscribe mechanism as specified in the Act.

Section 6(6) of the CASL provisions provides certain limited exemptions.  In particular, Section 6(6)(e) provides that consent, either express or implied, may not be required where the commercial electronic message in question provides information directly related to an employment relationship in which the person to whom the message is sent is currently involved.

So, how does this legislation impact communications between employers, employees and trade unions during the course of an organizing campaign?  The legislation is of course new and to-date unchallenged and it is difficult to answer this question with precision.  But what we do know is that every time the rules change, there is a premium placed on creativity in interpreting and applying the rules when it comes to challenging the plays on the field regardless of the logo on the front of the jersey.

Employers may want to claim that any electronic messages which they send to employees are exempted from the necessity of consent pursuant to Section 6(6)(e).  The issue that will arise is, whether such communications are necessarily directly related to the employment relationship.  The answer may depend on a detailed analysis of the nature of the particular message.

Trade unions face a greater challenge.  On the face of it, it does not appear that unions are exempt from the CASL provisions.  Unions are “organizations” and appear to fall within the definition of “person” under the Act. Employees whom the union approaches through electronic means may have had no ongoing relationship whatsoever with the union prior to the organizing campaign and may not have granted any express or implied consent for the receipt of electronic messages from the trade union.  The target employees are not in an employment relationship with the trade union and, at least until they sign a union card, the employees cannot be said to be members of the trade union for the purposes of the CASL provisions.

Are the subject messages commercial electronic messages?  In the case of the trade union, the argument may be that the union is seeking to represent the employee(s) in return for the payment of union dues.  This may be seen as commercial activity, certainly every bit as much so as participation in any other not for profit organization or charity.  From the employer’s perspective, apart from the partial exemption that may be available under Section 6(6)(e), the argument would be that the determination by employees as to whether or not they wish to organize may well have an economic/commercial consequence for the employer.

Will either trade unions or employers challenge the campaign practices of the other, with or without actual complaints by employees concerning employee receipt of commercial electronic messages at home or elsewhere on their personal devices during the conduct of an organizing campaign?  We’ll have to wait and see how such tactics will play out.  But count on the fact that unintended consequences of this seemingly appropriate legislation will ensue.  That’s how it is in the legal playing field.

A Spring Election or a Classic Fall?

Posted in Baseball, Employment, Strategy

Ontario Provincial elections are  a lot like the playoffs in baseball leading to the World Series (the Fall classic).  You get to see the best “pitchers” in action head to head and all mistakes are magnified in importance.

Progressive Conservative Party Leader Tim Hudak is a veteran of a prior campaign but doesn’t have a winning record in the playoffs and his team has a history of snatching defeat from the jaws of victory, see prior losses by every P.C. pitcher since Mike Harris.

Kathleen Wynne, the Liberal Party Leader and the unelected Premier is the new Manager of a Team used to success and eager for the playoffs despite a mediocre regular season.

Mr. Hudak has gone on the offensive from the first Inning of the Game and has set out the agenda for the Election Campaign with his $1 million dollar private sector jobs pledge and his attack against the Liberal Government’s  $1 Billion dollar gas plant scandal.

One might think that this fast ball/slider combination would portend well for Mr. Hudak and the P.C.’s.  However, Mr. Hudak has also seen fit to mix in a curve ball in the form of a pledge to cut 100,000 public sector jobs to reduce the cost of government and thus create the ideal low corporate tax burden environment for private sector investments in Ontario.

This is just the opening that the veteran Liberal Team was hoping to get from the P.C’s.  A Pitch from Mr. Hudak that the Liberals can “drive” in to the electoral gap.  Ignite the job security fears of every public sector worker and the concerns of the public about cuts to vital public services like:  education; food and water safety; and, healthcare.  At the same time the Liberals will assert that Mr. Hudak’s pitches are all aimed at knocking organized labour out of the batter’s box entirely whether those unions are in the public or private sector.  Mr. Hudak has after all previously flaunted the idea of stripping away many of the protections enjoyed by organized labour under the Labour Relations Act, 1995 and otherwise.

There is an old adage that says:  “offence sells tickets but defense wins games”.  So, will Mr. Hudak’s offense score enough votes to unseat the perennial league champion Liberals?  I think he has a chance.

The Liberals have promised to deliver the moon to electors – a chicken, or two, in every pot (Provincial pensions; education subsidies; higher minimum wages; make the rich pay higher taxes; more jobs for teachers and support workers; affordable daycare and lower corporate taxes) and apparently no rainouts … ever.

The Liberal pitches are all outside the zone … and none of them are strikes that ought to baffle P.C. hitters.

But, will the P.C. offence fizzle in the face of predictable Liberal defensive tactics?  Is the Hudak game plan a winner … only the results of the June 12th election will tell the story.  So far, so good, according to polls showing Hudak’s P.C. Party in front but as Yogi Berra famously stated:  “… the game ain’t over till it’s over.”

Pinch Hitter Post: The Rules Are the Rules

Posted in Temporary Lay off

Every now and again, it comes time to bring a pinch hitter to the plate.

This week’s post comes from Jordan Kirkness

-  a fellow lawyer at Baker   McKenzie in Toronto, Ontario Canada.

Thanks for the post Jordan!  Dear Readers & Followers – enjoy!

When speaking of the Employment Standards Act and rulings in terms of constructive dismissal, there are times where the interpretation of the rules are more adhered to than the rules themselves.

Here is a case in recent history where the rules are truly the rules.

For years, courts have generally found, absent a specific term of contract, employers do not have the right to temporarily layoff employees.  Courts have often found a temporary layoff will constitute constructive dismissal where there is no written employment agreement (or a well-established industry standard) that provides for a contractual right to temporarily layoff an employee, requiring employers to provide termination notice, or pay in lieu.

This approach appears to be shifting.

The recent decision of Trites v. Renin Corp, 2013 ONSC 2715 (“Renin Corp.“) may signal a change in the common law that will broaden the range of circumstances in which an employer can temporarily layoff an employee without triggering a constructive dismissal.  If the reasoning in this decision is followed by courts in future cases, employers will often be able to temporarily layoff employees, even without a specific agreement that provides for temporary layoff.

Renin Corp. involved a middle management employee, Sandra Trites, who verified financial statements and accounts, and reported to a corporate controller.  Trites worked for the employer for over five years, but she never signed a written agreement.

Renin Corp. (“Renin”) was struggling financially.   Starting in 2008, many employees had been placed on temporary layoff, only some of which had been recalled prior to the end of the “temporary layoff” period as defined under the Employment Standards Act (“ESA“).

On November 15, 2011, Renin notified Trites she would immediately and indefinitely be placed on layoff.  In January of 2012, Renin advised Trites that she would be called back to work as of July 2012.  Thus, if Trites accepted the recall offer, she would be laid off for more than 13 weeks, but less than 35.  During the layoff, Trites was not provided with benefits, or otherwise subjected to circumstances which qualified her for  “temporary layoff” for up to 35 weeks under the ESA.

In any event, by the time of the recall, Trites had commenced an action against Renin claiming constructive dismissal.

At trial, Trites argued she had been constructively dismissed.  Her lawyer cited existing case law which stood for the proposition that a temporary layoff is a constructive dismissal in the absence of a contractual agreement providing otherwise.  Renin argued that because the ESA provided for a temporary layoff period, the common law of constructive dismissal was unavailable to Trites.

Surprisingly, the court found that “there is no room remaining at law for a…finding of constructive dismissal in circumstances where a temporary layoff has been rolled out in accordance with the terms of the ESA”.  This reasoning clearly suggests that employers can, absent a specific term of agreement, temporarily layoff an employee, without risking constructive dismissal, so long as the layoff does not exceed the definition of temporary layoff under the ESA.

So what is really the play by play?

  1. If this were a collective agreement then temporary layoff periods could be part of bargaining.
  2. The Employment Standards Actdefines a temporary layoff as not more than 13 weeks in any period of 20 consecutive weeks, (more notes in ESA Section 56 – use link)

This case stands for the proposition that you can be taken out of the line up for a period of time (in the EAS specification) and you do not have the right to claim constructive dismissal.  What the court has suggested here is that it has simplified the rule book for employers so that as the ESA states “a temporary layoff does not constitute a termination”, it really means that.

 

Coaching for Improvement

Posted in Employment, Minimum Wage, Strategy, Team Development

It’s not easy to be part of a committee with the tenuous role of developing a plan to implement minimum wage increase rules for the future of Ontario.

And with the numerous critics, advocates and voices that emerge, the task does not become easier.  Numerous articles and studies are out there including many mentioned in the past blog posts, and including the following:

And so many more.  And the debate will continue until the Committee reports back.

Clearly, this analysis will be a good thing for business.  With a good process and format in place, if increase occur, businesses will be able to plan for it. In the past, just ‘springing’ the increase on businesses has made the increases exponentially more difficult to react to  and properly implement, making the impact worse.

We will have to wait and see if this topic becomes a rally-killer or not.  In any case, coaching for improvement can work.

 

The Rally-Killer or Not?

Posted in Minimum Wage

The argument for increasing the minimum wage is definitely political.

At any time in the Ontario economy, 1 in 10 people earn the minimum wage.  No doubt that hiking it would be politically advantageous – VOTES.  It may not necessarily be the right thing to do.

It’s a difficult task that Minister Naqvi has asked the Committee to work on:

  • Understanding that there are currently reduced opportunities for low skilled and young workers, how would hiking the minimum wage affect them as well as affect the business market?
  • Not equating poverty with the minimum wage – some of the minimum wage earners are not necessarily poor but perhaps just starting out in their chosen field, could still be living at home.  They are not necessarily householders living at the ‘poverty line’.
  • Setting a clear set of objectives and processes in place for future increases that are based on facts that help stimulate the economy as well as benefit business bottom-line, creating sustainability in the marketplace.

This is not for the faint of hear.  It is tenuous and requires leadership to not just respond to the pressure and act, but to seek counsel and coaching to put a good structure in place for the future.

Strike Three – You’re Out!

Posted in Employment, Minimum Wage

The last 2 posts focused on the business environment and the non-starter anti-poverty tactic of increasing the minimum wage in Ontario.

STRIKE THREE:

A clear thought must be brought to bear on our competitiveness in the Canadian market and of course, in the international business market.  Already, over the last decade, jobs have left Canada and Ontario specifically for lower paying locales to the South and beyond.

Thinking about this clearly, increases in wages directly affect the bottom line – profits.  We can say whatever we want about business, but the fact are, if I do not have profits, I usually won’t stay in business very long.

While there is something to be said for helping drive the economy by adding money into the pockets of the entry-level job workers, the fact remains that while minimum wage has not increased in the past 3 years, the rate of unemployed young workers is rising as seniors are taking over in those roles.

Watch for the Rally-Cry up next.

Strike Two Against the Increase

Posted in Minimum Wage

In my last post, you could see that Strike One focused on the business market.

STRIKE TWO:

Is the minimum wage really an anti-poverty tactic?  Is there a clear link between poverty and the minimum wage.  Think about this:

The poor tend to not have jobs at all.  If there is an adverse reaction in the business market to an increase in the minimum wage, this will only add to issues for ‘poor people’ as it would continue to limit their prospects.

Usually those who are getting the minimum wage are in entry level jobs.  The expectation is that these people would grow and develop in their roles and move forward with increases due to performance and time in position.  Many organizations have mechanisms in place to help this take place so that they can retain the talent they attract at all levels.

Strike Three coming up!

 

 

Strike One Against the Increase

Posted in Baseball, Minimum Wage

Every batter gets an opportunity to hit a home run, get on base or of course strike out.

In my last post, I described the opportunity and debate that has arise around the increase of the minimum wage in Ontario.

STRIKE ONE:

Many methods for increasing the minimum wage have been used in the past.  In historical figures, the increase have been ad hoc to say the least.  It does seem that increases over 10% have an adverse affect on the Canadian business market. (This article has some good arguments).

In the US it is the opposite, as people make themselves more available for work and the business community likes this.

If using the 10% rule, then you would current get a $1.00 increase in the minimum wage taking it to over $11.00 per hour.  How can small businesses, who are supposed to be the heart of future growth, development and innovation, be able to pay this on a regular level to their current workforce, not to mention the pro-rata increases that would need to take place at every other grade level in the organization?

What will most likely happen here is that less people will be employed and there is the potential to replace labour with capital (example: robotics, streamlined processes etc).

Stay tuned for STRIKE TWO.