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CCCA_V5No1_ManageRisk-FIN.qxd:CCCA_V1No1_DriversSeat-FIN.qxd 2/2/11 3:20 PM Page 31 Inside tips: How to succeed in-house could be done more efficiently and profitably,” could lead to elevated absence levels, the employ- Overholt said. er applied the same attendance expectations to “On the other hand, organizations need to disabled and non-disabled employees alike,” ensure that communications meet a high standard Fasken Martineau LLP noted in a recent employ- of being respectful and appropriate. Communica- ment law bulletin. tions that do not meet this standard may be the Overholt said employers often seek outside basis for legal claims for damages for defamation legal advice in connection with the ‘duty to and complaints to human rights tribunals…On a accommodate, ’which continues to develop and is practical level, the policies need to communicate interpreted largely on a case-by-case basis. the expectations of the organization on how its “Large organizations are held to a high standard technology will be used, and adhere to human and expected to be flexible in their approach to rights and privacy legislation.” employment obligations and to accommodate The issue becomes more complicated when employees to the point of undue hardship,” employees make disparaging comments about Overholt said. employers or co-workers outside of office hours on As to non-compete clauses and restrictive their personal blogs or Facebook pages. covenants, “the courts scrutinize any restrictions A social media white or limitations on post- paper, co-authored by “If you can go in and do employment competi- Overholt and posted on tion to ensure that they the FMC website, cites a an audit of HR practices are clearly written, recent British Columbia and procedures, I would unambiguous and rea- Labour Relations Board sonable,” Overholt said. recommend it.” decision regarding the “Terms that exceed dismissal of two employ- what is necessary to pro- Terence Badour ees from aWest Coast car tect the employer’s busi- dealership as a result of ness interests will not be postings on their personal Facebook accounts. One enforced. Moreoever, terms that effectively pre- employee had referred to a manager as “a complete vent the individual from earning a livelihood will jackass” and the other had advised his Facebook not be enforced,” Overholt said. friends not to buy cars from the firm because, he Because in-house legal departments are gener- said, it had “ripped off” consumers in the past. ally small, they typically rely on outside legal spe- The board noted that while employees are enti- cialists for help with the more complex issues, tled to their opinions, displaying opinions about Badour said. In a merger or acquisition, for work-related issues“may have consequences with- instance, there are human resources implications in the employment relationship.” In this instance, regarding the fair treatment of surplus employees. the employees’ comments constituted conduct In-house counsel must also gain a thorough damaging to the employer’s reputation, the board understanding of employer rights and obligations said, adding that the employees could have no rea- under corporate pension and benefit plans. “It’s sonable expectation of privacy, given that — not an issue that gets a lot of attention, however it between them — they had 477 Facebook friends has huge financial implications,” Badour said. with access to their postings. Those new to the in-house role should “get Another hot spot for employers is the duty to themselves embedded” as quickly as possible, forg- accommodate employees with medical issues. In a ing good working relationships across the organi- decision late last year, the B.C. Court of Appeal zation so that their new colleagues “are comfort- found that a B.C. transit company, through its able keeping them apprised of their plans,” Badour attendance management program, had systemati- said. Forewarned is forearmed when it comes to cally discriminated against disabled employees. avoiding wrongful dismissal suits, human rights “Despite being aware that an employee’s disability challenges and other problems. PRINTEMPS 2011 CCCA Canadian Corporate Counsel Association 31