Computer Use and Time Theft At Work

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We’ve all done it: snuck a peak at our Facebook timeline in between scheduling meetings; paid a phone bill online after a work call with a client; checked out a new lasagna recipe recommended by a co-worker before starting a lunch break.

Computers have become ubiquitous in the workplace and so too has their occasional use for employees’ personal purposes.

Computer Use and Time Theft At Work

For employers, catching a glimpse of Facebook’s telltale blue or personal e-mails on an employee’s office computer during working hours is frustrating. They’re supposed to be working, after all. Surfing the net isn’t what you’re paying them for!

At what point does an employee’s personal internet use during work hours become worthy of reprimand? Can an employee wasting work time browsing the internet for personal interests amount to time theft? The case of Andrews v. Deputy Head offers some sobering insights.

Andrews v. Deputy Head (Citizenship and Immigration Canada)

In this case, Franklin Andrews, a federal bureaucrat with Citizenship and Immigration Canada, drew international attention when his internet surfing at work caused a legal debate about time theft.

In 2009, after 27 years working for the government, Andrews was fired after it was discovered that he had been spending more than half of every working day surfing the internet for news, sports and even a substantial amount of porn.

Andrews appealed his termination to the Public Service Labour Relations Board. He insisted that he hadn’t been given enough work to do and was simply bored. He further pointed out that he had never missed a deadline and regularly received positive feedback about his work.

The lawyer representing the Department of Citizenship and Immigration argued that this egregious wasting of work time – and therefore taxpayer money – was as “fraudulent as falsifying a time card” and should therefore be considered time theft. The lawyer also suggested Andrews should have asked for more work if he wasn’t given enough.

The adjudicator, Kate Rogers, agreed that Andrews was in violation of workplace policies by downloading porn. However, she did not believe that he had committed time theft. She argued that frittering away time on the internet was not an overtly fraudulent act. Moreover, Rogers was astonished that such significant time-wasting had been overlooked for so long. Rogers decided that a long suspension would have been a more appropriate disciplinary action. She ordered that Andrews be reinstated immediately.

Takeaway for Employers

Employers may look at the Andrews case and despair. If the government wasn’t able to fire an employee for spending half of his working hours looking at news, sports and porn, what recourse does the average employer have to deal with improper computer use during working hours?

Cutting off internet access entirely isn’t an option in today’s business environment and blocking specific sites can be difficult to enforce. Furthermore, overbearing policies can create low morale if employees feel that they are not trusted.

Just because an employee’s computer isn’t open to a word document, spreadsheet or an Adobe product, doesn’t necessarily mean that they’re wasting your time. Employees may want to use their lunch or coffee break to browse freely. A quick peak at a photo of their nephew might be just the two-minute distraction an employee needs to reset their focus for the next two hours.

Workplace Policies Are Your Best Defense

Therefore, clear, comprehensive and well-communicated workplace policies are your best defense against improper use of workplace computers.

You’ll be hard-pressed to demonstrate that an employee went ‘too far’ in their personal internet use during work time if you don’t clearly define what appropriate and inappropriate amounts of personal internet us are.

Policies should therefore outline what is a reasonable and unreasonable amount of time to browse the internet for personal purposes and make clear what kind of content is and is not appropriate.

Workplace Policy Experts

KCY at LAW can help you create clear and enforceable workplace policies to protect your business interests while respecting your employees. Call us today at 905-639-0999 or request a consultation.

Reprisals Outline and Protections for Employees

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Have you ever been afraid to speak up for your employment rights? Maybe you work on a construction site and you feel the work you are being asked to do is too dangerous or doesn’t comply with health and safety standards. What do you do? Naturally, you want to bring these concerns to your employer or boss’s attention, but what happens if you do? What if they don’t care? What if they get upset and cut back your hours or fire you?

Fear not! There are protections against just this sort of reprisal written directly into employment legislation. These protections exist to make sure no employee is intimidated against exercising their legal rights.

Protections for Employees

Most employment protections, such as those in the Employment Standards Act (ESA) and Canada Labour Code, include a prohibition on retaliation against an employee who tries to access their entitlements. Other legislation that provides protection against reprisals include the Human Rights Code, Workplace Safety and Insurance Act and the Occupational Health and Safety Act.

What is a Reprisal?

According to the Ontario Human Rights Commission, a reprisal is “an action, or threat, that is intended as retaliation for claiming or enforcing a right under the Code.”

A reprisal therefore occurs when an employer threatens or takes disciplinary action in response to an employee claiming or trying to claim their employment and/or human rights.

Examples of a reprisal include reduced work hours, unwarranted poor performance reviews, formal reprimands, demotions and even terminations.

Prohibited Grounds for Reprisals

The main protections for Ontario employees are set out in Section 74 of the ESA. You may not penalize an employee – or threaten to do so in any way – if the employee:

  • Asks you to comply with the ESA
  • Inquires about their rights under the ESA
  • Files a complaint under the ESA
  • Exercises a right under the ESA
  • Provides information to an employment standards officer
  • Participates in a proceeding under the ESA
  • Takes, is eligible to take or plans to take a leave of absence

If you punish or threaten to punish an employee for any of the above actions, you will have to compensate the employee for any loss incurred due to a violation of the ESA.

While employees who have lost or left their jobs because of reprisals may be reinstated, the work relationship has usually been poisoned beyond repair by that point. Therefore, it is often determined that the employee has been terminated and is entitled to appropriate termination pay.

An important thing to note about the laws concerning reprisals is that it does not matter whether or not the complainant’s attempt to enforce his or her right is founded. Regardless of the merits of a person’s claim, an employer cannot reprimand the employee for making the claim.

Mediclean Inc. v. Mendoza

The following case of Mediclean Inc. v. Mendoza is one example of the cost to employers should they punish their employees for exercising their employment rights.

Mendoza was employed as a cleaner with a company called Mediclean. Shortly after she started working for the company, she was assigned to a more difficult work area and promised additional pay as compensation. However, her employer later refused to pay her extra hours or proper overtime pay.

Mendoza went to an employee advocacy centre where a lawyer wrote to Mediclean requesting them to comply with the ESA. Shortly thereafter, Mendoza received a written warning of poor performance and was assigned to be retrained. Mendoza quit and filed a claim under the ESA for her outstanding money. She also insisted that the retraining and performance review had been a reprisal for seeking to recover her ESA entitlements. She further argued that her employer’s actions had amounted to a constructive dismissal.

The Ontario Labour Relations Board agreed with Mendoza that she had been wrongfully penalized for claiming her ESA entitlements. Mendoza was awarded her outstanding wages, in addition to wages for the period of time between the day she quit and the day she found a new job three months later. Additionally, because she was determined to have been dismissed, she was entitled to termination pay.

Reprisal Info for Employees

Your legal rights and health and safety are paramount. You have every right to assert your legal rights in the workplace without fear of retaliation.

KCY at LAW helps employees stand up for their rights and take action against illegal employment practices. Our professional team will be your advocates and advisors from the moment you step into our office until your final settlement. Call us today to book your consultation! 905-639-0999

Principles of Accommodation in The Workplace

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Employers have a duty to accommodate the needs of their employees to ensure they have equal opportunities for, access to, and benefits from employment.

The need for accommodation in the workplace may arise for many reasons. An employee’s pregnancy, disability, health, caregiver responsibilities, or religious beliefs are all things that may require an employer to provide accommodations at one time or another. Accommodation may involve modifying your facilities (i.e. making them wheelchair accessible), policies and procedures, performance goals, or decision-making practices. Employers may also find it necessary to modify an employee’s job duties, training, or hours of work.

Pricinples of Accommodation For Employers – OHRC

The Ontario Human Rights Commission (OHRC) sets out three principles for proper and respectful employment accommodations. According to the OHRC, the best accommodations respect the individual’s dignity, respond to their individual needs, and empower them to fully participate and integrate in the work environment.

1. Dignity

Principles of Accommodation for Employers - OHRC - KCY at LAWAccommodations must respect the individual’s dignity. Consideration for an individual’s self-respect, self-worth, integrity and empowerment are essential to a dignified accommodation. This means that the accommodation an employer provides must not stigmatize or devalue the individual or their work. Accommodating an employee should not make the employee feel like they are a burden or of lesser value to their employer than any other employee.

This also means that employers should respect the privacy and comfort of the employee seeking accommodation. Disabilities and mental and physical health are often deeply stigmatized and employees have a right to expect privacy in these regards. Except for the circumstances of the most extreme suspicion, employers should not ask an employee seeking an accommodation for documentation or any further ‘proof’ of their need for an accommodation. The employee’s word is, almost always, enough evidence for the need for accommodation.

2. Individualization

Each person’s needs are unique and should be considered as such. Accommodation is not a one-size-fits-all solution. What is helpful to one employee may not work for another. While it is important to have general policies and procedures for accommodations, employers need to have a degree of flexibility.

Sometimes, providing an employee with an accommodation is straightforward: you facilitate a leave of absence or you allow an employee to start and end work half an hour early so they can pick up their child from daycare. However, finding the best accommodation is often a process. Employee’s accommodation needs are sometimes complex and inconsistent, especially when they relate to their physical and mental health. When this is the case, it may take some time, experimentation and flexibility in order to find the most dignified, individualized and empowering accommodation possible. Although it is not the job of the employee requesting accommodation to come up their own accommodation solution, they should be involved in the process. Since they know their needs better than anyone, their input is indispensable when coming up with an appropriate and practical accommodation.

3. Integration and Full Participation

Employees seeking accommodation are not looking for their employer to ‘take it easy’ on them. Rather, they are looking to be a fully contributing member of their team.

Therefore, accommodations should maximize individuals’ ability to fully engage in the workplace. As an employer, one of the best starting points in a conversation with an employee requesting an accommodation is asking how can I help you be successful at work? This question allows the employee to focus on their needs and decide how much they want to disclose about their situation. The success of your employees will be reflected in the success of your business. It is in your interest to accommodate employees’ needs to ensure they can fully participate in – and therefore contribute to – the workplace.

Employees Right to Accommodation in the Workplace - KCY at LAW

Principles of Accommodations Benefit All

Accommodations often benefit more than the intended party. Many workers will, at one time or another in their careers find themselves in need of an accommodation. Therefore, developing policies that are adaptive and inclusive will allow you to manage your staff in a way that is productive and enables them to be their best selves.

Employees Right To Accommodation In The Workplace

Employees have a right to accommodation in the workplace to the point of undue hardship to their employers. KCY at LAW can advise you of your rights, determine if they are being breached and advocate on your behalf. Call us at 905-639-0999 or contact us online to book your consultation today!