New top 10 rules for video surveillance in Canada

By Barbara A.  McIsaac and Rachel Ravary

By now, we all know that video surveillance of employees is a touchy subject and should be used only as a last resort. But when you’ve examined all of the alternatives and have come to the conclusion that no other solution will do, we can at least give you some guidance on how to do it right.

Recently, the Federal, British Columbia, and Alberta Privacy Commissioners got together to issue new guidelines for the use of video surveillance.

Who is covered under the guidelines? Well, technically, they apply to all federally regulated employers such as banks, railways, air transportation, and inter-provincial trucking companies, as well as employers in British Columbia and Alberta. That being said, the guidelines are general rules that can and should be considered no matter what Canadian jurisdiction you’re operating in.

The guidelines set out a top 10 list of factors to consider when deciding whether to use video surveillance and when putting your video surveillance plan in place. Remember that under most provinces’ privacy laws, as well as the federal law, the rule is that personal information cannot be collected, used, or disclosed unless it’s reasonable in the circumstances, and even then, only with the consent of the individual involved. In Québec, the standard is a little higher and requires that the information be necessary.

Here is our summary of the guidelines.

Top 10 guidelines for video surveillance
1. Consider the alternatives. Before you resort to video surveillance, consider whether you can achieve your goal with a less invasive alternative.

2. Set the ground rules. Develop a policy on the use of video surveillance.

3. State your purpose. Narrow down the specific business reason for using video surveillance – and use it only for that reason.

4. Don’t go overboard. Limit the use and viewing range of cameras as much as possible.

5. Smile! You’re on camera. Inform your employees – and the public if the camera is in a public area – that video surveillance is taking place.

6. Guard the evidence. Store any recorded images in a secure location, with limited access, and destroy them when they are no longer required for business purposes.

7. Be transparent. Be ready to answer questions from employees or the public. They have the right to know who is watching them, why, what is being recorded, and what is being done with recorded images.

8. Hand it over. Give individuals access to information about themselves. This includes video images.

9. Train your people. Educate camera operators about the obligation to protect the privacy of those who are being filmed.

10. Re-evaluate. On a regular basis, reconsider whether you still need video surveillance.

The guidelines also offer some practical tips for setting up your video surveillance system to collect the minimum amount of information necessary to be effective. For instance:

• Have cameras record for only limited periods in the day rather than having them on continuously. Even better, if you’re targeting a specific problem – such as theft by a particular employee or in a particular area – only turn the camera on when the targeted activity is suspected or observed.
• Try to position cameras to avoid capturing images of individuals who aren’t being targeted.
• Don’t put cameras in places where people have a heightened expectation of privacy, for example, washrooms or into windows.
• Make sure that your system doesn’t allow camera operators to manipulate or reposition cameras to capture inappropriate images.
• Sound should not be recorded unless there is a specific need to do so.

If you have questions about these guidelines or related issues, lawyers in McCarthy Tetrault’s Labour and Employment and Privacy groups can help you. We regularly advise clients on issues relating to various forms of employee surveillance and/or monitoring and compliance with federal and provincial privacy legislation.

Avoiding hiring pitfalls in Canada

by Kate McNeill
We all know that once you hire an employee, you have certain legal obligations to that employee. But what about before you even hire someone?

In Canada, job applicants are entitled to certain human rights and common law protections that employers must be aware of in their hiring practices. In this Q&A, we provide answers to some of the more commonly asked questions about hiring practices in the Canadian marketplace.

Q. When we are advertising or posting a job, what potential issues do we need to be aware of?

A. Under human rights legislation in Canada, employers must not use statements in a job advertisement that directly or indirectly discriminate against candidates based on certain protected grounds. Some examples of these are race, religion, ethnic origin, age, marital/family status, sex, sexual orientation, and disability, but they differ slightly from province to province.

For example in British Columbia, you can’t refuse to hire someone because of a criminal conviction that is “unrelated to the employment or to the intended employment of that person.” This can lead to complicated judgment calls, and legal advice is often helpful.

Q. What kind of information about a prospective employee can we seek through a job application?

A. As with job advertisements, employers must not ask questions in a job application that seek information, directly or indirectly, about the grounds protected under human rights legislation.

Questions that are permissible include whether the candidate:

• is legally able to work in Canada;
• is over the provincial age of majority and therefore eligible to work;
• would be available for shift work or would be able to relocate/travel for work;
• or,is able to perform the duties of the job.Finally, it’s important to ensure that the questions are tailored to the job in question and that the information sought is reasonably related to the job itself.

Q. Will the use of a third-party headhunter minimize our exposure to liability in the hiring process?

A. No. Third-party recruiters such as headhunters are considered to be agents of the employer, so the employer can be held liable for their actions. As a result, employers should ensure that headhunters:

• comply with human rights legislation;
• have an accurate and complete job description and don’t offer misleading or false information about the job or the company;
• don’t act in a way that would breach an existing employment agreement with a candidate’s current employer; and
• inform the employer immediately if the candidate is being enticed away from other secure employment.

Q. What kinds of questions can we ask during a job interview and what should we avoid?

A. In a job interview, employers should only ask questions needed to make a hiring selection on the basis of merit and must avoid questions that would directly or indirectly solicit information tied to a prohibited ground under human rights legislation.
For example, if a candidate raises a physical disability or religious belief, the employer may justifiably ask how that may be accommodated in the position. However, questions about race, ancestry, sexual orientation, or political belief would generally not be acceptable.

Q. Is it advisable to conduct a background check of a prospective employee?

A. If your business generally obtains background checks or references, then be sure to notify prospective employees of that practice and, where necessary, obtain their informed, written consent. If the background check results in information about a protected ground under human rights legislation, that information can’t be relied on as the basis for a hiring decision.

Q. What, if any, issues should we keep in mind if we decide to extend an offer of employment to a prospective employee?

A. If you require a successful preemployment background check, the offer of employment should be conditional on that background check. Further, offers of employment should be in writing and clearly and accurately tailored to the position being offered. You should review the offer carefully with the candidate and give him or her adequate time to consider the offer to ensure that the candidate understands and agrees to the terms.

Finally, don’t make any over-reaching or unrealistic promises to a candidate that would induce the candidate to accept the position. Such promises can be costly down the road if the prospective employee relies on them to his or her detriment.

by Brian Smeenk
Editor - Northern Exposure

Like the hockey gag line about going to a fight only to have a hockey game break out, last week Northern Exposure was the site of shock and awe, and a good legal debate broke out.

There was a lot of interest in our post last week about a discrimination case against McDonalds by a British Columbia employee who wasn’t able to wash her hands frequently. We were surprised by all the attention it got. Some people might think employment law is dull, but sometimes it can really touch a nerve with people. It certainly inspired a heated debate online.

One person’s reaction was that Canadian human rights tribunals are full of “post modern ideologues”; others were afraid that restaurant food in Canada would never be safe again; still others defended the decision because McDonalds really had not tried to accommodate the employee at work to any real degree.

I contributed to the blog debate with some sympathy for both the critics and the tribunal. The critics may be right about unrealistic, ideological tribunal decisions in many cases; but in this case I think the tribunal got it right based on how poorly McDonald’s handled the accommodation needs of the employee. You can check out the whole debate on our blog. We also hope you’ll comment about our other posts and let us know what you think.

McDonald’s fails to accommodate employee unable to wash hands

by Daniel M. Pugen and Earl G. Phillips
In Canada, human rights legislation provides that employers have a duty to accommodate disabled workers unless such accommodation would cause “undue hardship” on the employer.

A recent case involving McDonald’s Restaurants before the British Columbia Human Rights Tribunal illustrates the high standard of accommodation expected of employers. It also shows the kinds of proactive measures employers may have to take before accommodation is considered “undue hardship.”

In the case, the tribunal found that McDonald’s improperly terminated the employment of a long-time employee. McDonald’s didn’t do enough to accommodate the employee who developed a skin condition that prevented her from working and meeting the restaurant’s hand-washing policy. (more…)

The basics of Canadian employment contracts

by Rachel Ravary and Brian P. Smeenk

So you’ve hired a new employee. Should you put it in writing? If so, what should it look like? What do you include? What is better left out? If you decide against an employment contract, what will the terms and conditions of employment be?

Those are some of the many questions that arise when you make an offer of employment. This week’s tips will give you practical advice on these and other questions about employment contracts for your Canadian operations.

Number 1 — Don’t assume that because you don’t have a formal agreement in writing, you don’t have an employment contract.

Every employer in Canada has an employment contract, whether written or unwritten, with each of its nonunion employees. An employment contract exists as soon as an individual agrees to provide services to an employer in exchange for remuneration of any kind. Sometimes, none or only some of the contract terms are in writing, but it’s still an agreement that can be enforced in the courts. Courts can fill any gaps in the express agreement by implying reasonable terms.

For employees represented by a union, the contract terms are contained in the collective agreement.

Number 2 — If you want to play it safe, get it in writing.

It’s up to you how much or how little of your agreement you put in writing. You can have a comprehensive, written employment contract, or you can put nothing in writing. Of course, if you take the more informal approach, you’re open to arguments about what promises were made. You may also be at the mercy of the courts that will imply what they believe the reasonable terms of employment should be. The safer course is to set out at least the key terms and conditions in writing.

Number 3 — Long or short? Simple or comprehensive? The choice is yours.

The form of your written agreement is really up to you. You can use a formal contract, or you can simply use an offer letter containing the key terms, which the employee signs and accepts in writing. Also, employment policies that are given to employees, especially those given at the time of hiring, will usually become implied terms of the employment contract.

Number 4 — An employment contract is not “until death do you part.”

You can still terminate employees even if they have a contract of employment. You must, however, give proper notice or pay in lieu of notice of termination. The courts will determine how much notice is reasonable unless your contract provides for a specific notice period. Contractual notice provisions will generally be enforced by the courts so long as they meet statutory requirements (or the Civil Code in Québec) and aren’t otherwise unconscionable.

Number 5 — Tailor the contract to your needs.

In addition to termination provisions, your contract should include any other matters that are most important to you and that will not likely be covered by the general policies you give to all employees. So you may want to include clauses dealing with:

• probationary period after hiring;
• salary and future salary increases;
• job title and scope of duties;
• possible changes in job or location;
• protection of the employer’s intellectual property; and
• post-employment obligations (confidentiality, nonsolicitation, etc.).

Number 6 — Timing is everything.

The timing of the employee’s signature on the offer of employment or employment contract is important. In order for the terms in the offer letter or employment contract to be enforceable, the employee must sign the document before he or she starts work. Even if you have to delay the employee’s start date, make sure to have him or her sign the document first.

McCarthy Tétrault has a great deal of experience in all matters relating to employment contracts in a wide variety of fields and workplaces. We can help draft an employment contract to address any situation.

Where will disputes about your international employment contracts be resolved?

By Brian P. Smeenk

This question can be a vexing one. Will disputes be resolved in the employee’s country of origin? In the country in which the employee is now working? In the country in which your head office is located? In the country in which the employment contract was executed? All of the above? And how will you know?

You could be forgiven for being confused about this. The courts have been, too. What’s more, the answer that Canadian courts give will not necessarily be the same as the answer of a U.S. or foreign court. Here I can at least provide a brief outline of how a Canadian court should look at this issue.

First, note that this question is not the same as the issue of what country’s laws apply to the contract of employment. The applicable law is not the same as the selection of the appropriate forum for dispute resolution. A Canadian court may enforce foreign laws, and a foreign court may enforce Canadian laws.

Failing a binding agreement on where and by whom a dispute will be resolved, how will this be decided? Canadian courts will look at two distinct issues in this regard:

• Do they have jurisdiction to consider the dispute?
• Are they a convenient forum for considering the dispute?

Somewhat different, but related, factors apply to each question. Therefore, even though a Canadian court concludes it could entertain a dispute insofar as it is within its jurisdiction to do so, it may still decide it should not do so if it’s not the most convenient forum.

Factors going to a Canadian court’s jurisdiction
In general, these factors may include some or all of the following:

• The presence of one or both parties in the province or territory in which the court is located.
• Whether the parties have consented, implicitly or explicitly, to have disputes resolved by that court.
• Is there a real and substantial connection between the claim and the province or territory in which the court is located? For example:
  • Was the contract carried out in the province?
  • Did the alleged breach of contract occur in the province?
  • Were the damages suffered in the province?
  • Did the employee embark from or will he return to the province?
  • Does either party reside or do business in the province?
• Would any unfairness befall either party if the court assumes jurisdiction? Would the party’s claim or defense be significantly prejudiced? Would the difficulty or expense of fighting the case be materially increased for one of the parties?
• Would the judgment of the Canadian court be recognized abroad, to the extent that this may be important? For example, must the judgment be enforced in another country, and is that feasible?

Factors determining the convenient forum for dispute
The factors for determining whether the dispute should be heard by the Canadian court may include some or all of the following (some of which overlap with the jurisdiction factors outlined above:

• Location where the contract was signed.
• What is the applicable law of the contract? This may be stated explicitly or may be implied in the terms of the deal.
• The location where the majority of witnesses reside.
• The location where the bulk of the evidence is located.
• The place where the dispute actually arose.
• The residence or place of business of the parties.

What this means for you
It’s important to think through these and related issues before you send executives temporarily to Canada or from Canada to other countries. We can advise you on how Canadian law will apply, help you find foreign legal advisors if necessary, and advise you in the drafting of appropriate employment contracts or appointment letters.

These kinds of measures, in a well-drafted appointment letter or employment contract, can save you many headaches and potential liabilities.