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What’s Happening in Alberta?

Alberta is a hot property on a lot of fronts these days, and IPM is no different. Edmonton and Calgary are home to IPM’s fastest growing chapters with record attendance for this spring’s half-day workshops. Topics such as “Sustaining Key Employees in the War for Talent”, “Today’s Critical Issues in Employment Law” and “Hot Updates in Employment Standards” brought out professionals representing just about every sector of business in the province.

Calgary’s chapter hosted the half-day workshop featuring Joy Humphrey, a Certified Professional Behavioural Analyst (CPBA) and a Certified Professional Values Analyst (CPVA) with over 25 years’ experience in providing learning and performance solutions. As the western region executive partner with Excel Group Development, Joy is known for assisting clients in achieving results through the development of their human capital. Ms. Humphrey presented a timely and interesting session called "Sustaining Key Employees in the War for Talent." While the war for talent may already be underway, there is no question that as baby boomers begin to retire, that war will become a far more prevalent factor in our recruiting process. The skills gaps these boomers will leave behind will have a tremendous impact on many organizations.

Ms. Humphrey kicked off her session by asking "What keeps executives up at night?" The answer? Finding good people, keeping them and generating profits. On average, the cost of employee turnover can end up being 14-24 times the employee's salary, so it is clear that answers one and two can have a massive effect on number three.

She then reviewed Retention Strategies and Best Practices, including innovative compensation and benefits programs, removal of barriers that inhibit performance, clarification of key accountabilities and effectively incorporating new employees into the organization. Taking the approach of beginning to coach a new employee on the first day can significantly reduce orientation time and increase the level of fit between the new employee and the organization.

Ongoing assessment of both the job and the employee is another key to successful recruitment and retention. Joy reviewed the assessment process and took the additional step of speculating on "If the Job Could Talk." What would it say? It would tell the employer what attributes are required for superior performance, what internal motivators the job requires and what behaviours are necessary for success. Joy's preferred tool for objective assessment is TriMetrix, which assesses the attributes of the job candidate against the attributes required by the job. While making the hiring decision should incorporate evaluation of hard skills, job benchmarking and the interview, background checks and fit with company culture, TriMetrix can add an element of objective assessment to the process.

Even if you have made the best possible hiring decision subsequent assessment of performance can reveal gaps in performance. How the organization handles this gap can be pivotal in the retention of talent. Taking the time to coach employees who may be falling short in some area, and investing in their development can make a tremendous difference in retention, and ultimately financially for the organization. Through coaching, the employee can work with the employer to develop an action plan. Unfortunately, this is the area where many organizations drop the ball - there is plenty of evaluation and identification of gaps, however the organizational culture does not lend itself to employee development in a meaningful way. Implementing the best individual development plans means establishing well defined, realistic expectations, getting buy-in from the employee, ensuring that supervisors model expected behaviour and continuing to coach on an ongoing basis.

Calgary’s other workshop presenter was Randy Sorensen, Education Program Coordinator, Workplace Partnerships, Alberta Human Resources and Employment Mr. Sorensen gave a lively and humourous presentation titled “Hot Updates in Employment Standards,” a topic that was also presented by his dynamic colleague, Cindy Thompson in Edmonton. She, too, is an Education Program Coordinator with Alberta Human Resources and Employment. Ms. Thompson has over 25 years of experience and has become one of the province’s leading experts in the field of Employment Standards.

With public consultation for Employment Standard review coming up this summer/fall and changes to be implemented in 2008, Mr. Sorensen and Ms. Thompson reviewed some of the more commonly questioned areas of the Alberta Employment Standards Code. These included hours of work, holidays, overtime, terminations and compassionate leave.

Overtime agreements, either group or individual, were stressed as being necessary where employees wish to take time off with pay, rather than be paid for hours worked at the overtime rate. Time can be banked for up to three months from the end of the pay period in which it was earned. If it is not taken, it is paid out at time and a half. It was stressed that employers do have the right to expect employees to put in overtime, but that conflict in that regard can be avoided by spelling out expectations relating to overtime in the letter of offer.

Mr. Sorensen and Ms. Thompson also reviewed provisions for General Holidays and Holiday Pay, particularly the misconception that if a general (or statutory) holiday falls on a weekend, that the employer is obligated to give another day off in lieu. This is not so if the holiday falls on a day they are not usually scheduled to work. The exception is that if Canada Day falls on a Sunday, Monday will be given as a holiday. Employees must have worked 30 shifts in the past year in order to qualify for holiday pay, must work if asked to do so and must work the required shift before and after the holiday.

Maternity and parental leave were reviewed in terms of time off allowed, the notice to which the employer is entitled from a returning employee and obligations to reinstate returning employees to their position, even if the company changes hands.

There was interesting discussion around the employment of adolescents; the ESC states that youth aged 15-17 may only work until midnight and only with adult supervision. Probationary periods were reviewed, stressing that the three-month probationary period is a calendar three months, not 90 days, and that while it can be extended, there must be documented competencies that are to be addressed during the extension period.

Finally, termination of employees was reviewed, with discussion around how best to deal with the termination interview as well as temporary and permanent layoffs.

The second presenter at the Edmonton workshop was Ayla Akgungor, an Associate with Field Law in Edmonton who maintains a practice focused primarily on labour, employment and administrative law. She got the Edmonton group going with her presentation on “Today's Critical Issues in Employment Law” at March's half-day workshop. She covered three fascinating topics: Privacy in the Workplace, Wallace Damages and Reference Letters.

With the introduction of both the Federal Personal Information Protection and Electronic Documents Act (PIPEDA) and Alberta's Personal Information Protection Act (PIPA) on January 1, 2004, the private sector was subject to a host of new obligations concerning the collection, use and disclosure of personal information held by an employer. While the public sector in Alberta has been subject to the Freedom of Information and Protection of Privacy Act (FOIP) since 1995, this type of privacy legislation was new to those outside of government and Crown corporations.

Where can the impact often be felt? In these days of high-tech monitoring devices, surveillance of employees for reasons of safety or performance has become very common -- but is it legal? Ms. Akgungor reviewed several examples from case law pertaining to monitoring - through biometrics, video surveillance, keystroke logging software and event data recorders ("black boxes" in cars). As a general rule, case law shows that the courts take a broad view of what constitutes "personal information." In just about all cases, the courts found that employees should be notified when work monitoring programs were implemented and that employers should consider the least intrusive method for evaluating employee productivity.

The Alberta Information and Privacy Commission developed a three-part test to evaluate whether employee monitoring was a violation of privacy legislation:

    1. Are there legislative issues that the organization needs to address through surveillance?
    2. Is the surveillance likely to be effective in addressing these issues?
    3. Was surveillance conducted in a reasonable manner?

Naturally, the test of reasonableness varies by case; certainly the onus is on employers to provide solid evidence for the need for surveillance. There is a better chance of having a favourable court decision if the surveillance is known to employees, it is in public areas and intrudes as minimally as possible on employee privacy rights.

Ms. Akgungor then moved on to a perennial HR favourite: "Wallace" or Bad Faith Damages. Wallace holds employers to a standard of good faith and fair dealing in the manner of termination of employment; that is to say that employers are required to treat employees fairly, decently and reasonably at the time of dismissal. Failure to do so can result in the courts awarding compensation to the employee in the form of a longer paid notice period.

In what ways do employers often act in bad faith when terminating an employee? The most common, according to a recent survey of Wallace cases is misrepresentation of the reasons for dismissal through unfounded allegations of misconduct. Employers may also act in a way that sabotages a former employee's prospects for re-employment or humiliate an employee during the termination process. Wallace damages can also be awarded for failing to accommodate a sick employee, and for failing to provide entitlements owing in an accurate and timely manner.

While the provision for Wallace damages should be a stern warning to employers against terminating employees in a way that is humiliating and unfair, there has been some swing in the pendulum towards routinely claiming Wallace damages by lawyers for terminated employees. This has resulted in a backlash in the courts and the suggestion that cost sanctions may be imposed for failing to prove Wallace claims.

Ms. Akgungor's final topic, Reference Letters, was an excellent follow-up to the Wallace discussion, as often the manner in which letters of reference are provided (or not provided) can result in a Wallace claim. Employers who have had to terminate a worker are often put in a difficult position when it comes to providing a letter of reference. If an employer refuses to do so, they can be subject to Wallace damages as this can have a negative effect on the dismissed employee's re-employment prospects. The same can be true if they do provide a letter, but the letter is cryptic or unclear, leading a potential new employer to draw negative conclusions about the employee.

The best route to take is to promptly provide a letter of reference that is limited to neutral facts such as position title, duties, and length of employment. There is no obligation to provide a favourable reference, particularly if doing so could conceivably result in negligent misrepresentation. In a situation where an employer is contacted for references, the courts state that if an employer has a legitimate basis for negative comments and does not act with malice, such references will not be regarded as defamatory. Such a situation requires that the employer give an opinion in good faith, and providing the statement is true and free of malice, it is protected. If the same employer elected to contact their clients to share the same information, it would be considered defamation.


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