I have been discussing the intersection between the use of
technology and employment law as long as I have been practicing.
Initially, my discussions centred around the "misuse of email
and Internet" while at work, and the primary concerns were
individuals surfing inappropriate websites at work and forwarding
those annoying chain emails and offensive jokes. As time went on,
technology evolved and as I often say, evolutions in technology can
increase productivity, but can also provide new and more
interesting ways for employees to get themselves into trouble. The
rise of the Smartphone, the tablet, and social media, have changed
the discussion dramatically and led to far more focus on off-duty
conduct. In recent years, we have seen hundreds of examples of
off-duty conduct that led to discipline or dismissal.
As I discussed on my recent Canadian HR Law blog post, the latest
evolution, which has dramatically impacted our society over the
last few weeks, is Pokémon GO. This new version of the
classic Nintendo game is everywhere, and you cannot walk the
streets anymore without seeing people chasing Pokémon. For
some (like myself), it is a curiosity. However, for many, it has
taken over their lives, and intruded upon their workday. In
addition to hearing stories about people wandering into traffic
while chasing Pokémon, we are also hearing about people
taking days off work, arriving late, or spending their time at work
So what is an employer to do?
As I often say, the law is already equipped to deal with these
issues. "Cyberslacking" is a term that I began using many
years ago to describe people surfing the Internet when they should
be working. Whether employees are chasing Pokémon, planning
their next vacation, or gathering around the water cooler to gossip
during work hours (as in the old days, apparently), the issue is
the same: the fundamental basis of the employment contract
is that the employee works, and the employer pays them. If
they are not working, then they are not meeting their legal
There is no need for new laws to deal with these situations. All
employers should take this opportunity to check their policies and
ensure that they adequately address these issues, including the
fact that employees are to be actively engaged in work during their
working hours and are not to use company equipment for personal
reasons. Before Pokémon, we had already noticed the
increasing use of smartphones at work, and the fact that many
employees think nothing of texting and talking to friends when they
are supposed to be working. If your policy does not, or is too
narrowly drafted, now is the time to revise it.
If employees are playing Pokémon at work, or doing
anything else that they should not be, employers (who presumably
already have policies in place) must enforce those policies.
Employees should be clearly told that their conduct is
unacceptable, and warned that it will lead to discipline and,
ultimately, dismissal if it does not change. Otherwise, condonation
will render the policies meaningless.
At the end of the day, employers have the right to expect that
their employees will be working during their scheduled working
hours. They may need to be reminded that playing games, texting
their friends, and all other personal business should be reserved
for off-duty hours. For employers seeking help in creating
effective policies, please feel free to
visit our website and learn more about our services. Employees
facing disciplinary measures surrounding their use of technology at
work are also welcome to
contact us for advice. That being said, employers can take this
as an opportunity to build goodwill amongst their employees and
demonstrate that they can be an employer of choice by embracing the
Pokémon craze, if it is popular amongst their staff, and
setting up events during which their staff will be allowed to play,
perhaps as a group. That way, employers can ban Pokémon Go
during the workday but also provide some special occasions during
which it is encouraged. Particularly during the summer months, this
can be a good way to build employee morale.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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