I was recently interviewed by the Canadian HR Reporter on this very issue.  In particular, I was asked about how human rights law in Canada would look at the issue of religious symbols in the workplace.  The Canadian HR Reporter kindly gave me permission to reproduce their article “Bearing crosses in the workplace”, which you will find below:

Bearing crosses in the workplace

U.K. moves to ban religious symbols but employers should accommodate them: Experts

The British government is set to argue in a landmark court case that Christians do not have the right to openly wear a cross at work. The government will argue that because it is not a requirement of the Christian faith, employers can “ban the wearing of the cross and sack workers who insist on doing so,” according to a March article in the Telegraph.

The United Kingdom will present its position at the European Court in Strasbourg, France,  where judges will hear a test case on religious freedom later this year. It will bring together four separate cases including that of Nadia Eweida, a British Airways employee who was suspended in 2006 for refusing to take off her cross, which the airline claimed breached its uniform code.

“What we are about is self-definition and whether a cross is a requirement or not, it’s a symbol by which people choose to define themselves as Christian,” said Rev. Karen Hamilton, general secretary of the Canadian Council of Churches in Toronto.

“So, it is incomprehensible to me that that should be seen as a problem because someone chooses to visually define themselves as Christian,”

The Canadian Human Rights Act and similar provincial human rights codes state an employer has a duty to accommodate a worker’s religion up to the point of undue hardship.

“Generally, employers are entitled to maintain and enforce dress code but if it comes into conflict with a human rights ground, like religion, (for example) if there was a no- jewelry rule in the workplace that would cause conflict with someone who wears a crucifix as part of their religious dress and that rule, if it was applied inflexibly, could result in indirect discrimination,” said Donna Seale, a human rights lawyer in Oakbank, Man.

For an employer to be able to validate a no-jewelry rule from a human rights perspective, it would have to show it was a necessary part of the job and changing it would result in undue hardship to the business, she said. In this context, employers often raise health and safety issues.

“I could see a no-jewelry rule being upheld in a factory environment where if someone was wearing a cross and it could get stuck in machinery and their lives — and other lives around them — could be put at risk,” said Seale.

When considering the impact of an accommodation on health and safety, employers must look at the extent of the risk and identify who would bear that risk, according to the Canadian Human Rights Commission. If this risk is borne entirely by the employee, then a higher degree of risk is acceptable. For example, an employee who wears a turban may be excused from wearing a hard hat in the workplace because the risk is the employee’s alone, said the commission.

Aside from crosses, there are many religious symbols employers may encounter, including: a yarmulke for Jewish employees, mostly men; a niqab (face covering) or hijab (headscarf) for Muslim women; or a turban or kirpan (ceremonial sword) for Sikh men.

An employer’s dress code policy should be applied flexibly and make it clear the employer will give consideration to the religious requirements of employees, said Seale.

Employers also need to accept some employees are not going to be OK with the accommodations, said Stephen Hammond, a workplace human rights consultant in Victoria.

“Just accept that not everyone’s going to buy into it. You know these things are going to be controversial, not everyone’s going to agree with it, but sometimes you just have to say, ‘Let’s agree to disagree but the Supreme Court of Canada is pretty firm on this, so we can’t be violating someone’s rights.’”

To minimize potential backlash, employers need to educate employees that people requesting an accommodation are simply asserting their legal rights, said Hammond. Other employees may see it as special treatment but employers should explain it’s permitted.

“That person is being allowed to have some religious symbols that you don’t think are right in the workplace (but) it’s not your responsibility,” he said. “Just leave that person alone — don’t harass them, don’t bug them, don’t give them a hard time about it — they’re just asserting their rights.”

If employers do not accommodate religious symbols in the workplace, they open themselves up to human rights complaints, which can take up a lot of time and energy, said Seale. If an employer is unable to accommodate an employee’s request, it should clearly explain its decision to the employee.

“Oftentimes, it’s that lack of explanation that causes the employee to feel they have no choice but to make a complaint to an external body (because) employers will simply say, ‘That’s our rule, we can’t change it,’ but they don’t elaborate and say why,” said Seale. “Then, people feel that their rights are being infringed just because.”

An employer’s reputation may also be at stake if the employee takes his concerns externally or the story is picked up by the media.

“The impact of that is they might have an (individual) who might be in that particular faith background who now says, ‘I don’t want to apply for a job with that employer’ or ‘I don’t want to buy services from that particular business,’” said Seale. “Any employer would want to avoid any kind of negative publicity around issues like this.”

And employers are not taking employees seriously if their religious beliefs are not taken into account, said Hamilton. Employers need to realize people always bring their background and heritage with them — and that is a benefit to the business.

“Surely, the more we know about ourselves and the world and those we work with, the better we are able to work as a team,” she said. “The attempt is being made to know more about each other but to leave people’s deeply held faith traditions out of that equation is very artificial.”

 RELIGION AT WORK

Quebec report on religious symbols

In 2008, the Quebec government appointed the Consultation Commission on Accommodation Practices Related to Cultural Differences, co-chaired by Gérard Bouchard and Charles Taylor. It released a controversial report — Building the Future: A Time for Reconciliation — that outlined 37 recommendations.

With regard to government employees wearing religious symbols, the report recommended judges, Crown prosecutors, police officers and prison guards  be prohibited from doing so while teachers, public servants, health professionals and all other government employees be authorized to do so.

Most of the report’s recommendations were ignored by Premier Jean Charest’s government.

So – what do you think about this issue?   Do you think the European Human Rights Court will permit a ban on the cross in the workplace?   If so, do you think that is right?  Should we be weighing into whether a cross is or isn’t a specific religious requirement for people who are Christian?  Alternatively, should we be weighing into an individual’s personal interpretation of what their religion requires?  As always, I’m interested to hear what you have to say!

Here’s the notice about this jam-packed session scheduled to be held at the Law Society of Manitoba on May 28th:

“Accommodation in the workplace is an ever evolving area of the law.  As a result, the Law Society and the Bar Association have teamed up to provide you with regular installments of this popular program reviewing current reasonable accommodation issues.  This year our experienced panel of practitioners will cover the following valuable topics:

• Significant new cases in the area of reasonable accommodation;
• New flexible workplace Employment Standards legislation;
• Overview of the Manitoba Accessibility Advisory Council Act, and of major changes to the law in Ontario regarding businesses and accessibility;
• Parental leave and family status;
• Ethical issues for lawyers in human rights cases.

Register soon to ensure you don’t miss this relevant and informative session!”

Chairs:

Brenlee Carrington Trepel, Equity Ombudsperson, Law Society of Manitoba

Lisa Cupples, Justice Manitoba, Civil Legal Services

Presenters:

Aaron Berg, Justice Manitoba – Civil Legal Services

Kris Gibson, Aikins, MacAulay & Thorvaldson LLP

Grant Mitchell, Taylor McCaffrey LLP

Donna Seale, Donna M. Seale, B.A., LL.B

Cost: 

$135 plus GST for lawyers

$145 plus GST for non-members

$110 plus GST for students & MBA members (includes materials and refreshments)

DOWNLOAD THE REGISTRATION FORM HERE 

Manitoba Members:  This program may be reported for up to 3.0 hours of eligible CPD credit hours, including .5 hour of Ethics, Practice Management or Professional Responsibility.

British Columbia & Saskatchewan Members:  This program is approved for 3.0 CPD credit hours.

Ontario Members: This program can be applied towards the 9 substantive Hours of CPD required by LSUC. Accreditation for .5 Professionalism hour pending.

Hope to see you there!

Donna

I will continue to update this page as I become engaged in other teaching events throughout the year.

And, if you ever have any course ideas, feel free to pass them along as I’m always looking to develop new courses that meet your specific wants and needs.

Donna

2011 has been a year of transition for me.  My long-term readers will know that last year my mother suddenly passed away.  That was certainly enough to handle but I simultaneously became my sister’s caregiver as well.  My sister, who has disabilities, had resided with my parents her entire life.  With both my parents now gone, it was left to me to take care of her along with my husband and young children.  Oh, and try to run my business while all of this was occurring; something that I simply did not think I was going to be able to do.  Fortunately, near the end of last year and after a very long negotiation process, I was able to purchase a home for my sister and have it licensed as a residential care facility.  And, fortunately, I have fabulous clients who were very understanding at a time when I needed that more than anything.

My sister now happily resides in the home I purchased with a roommate and they are taken care of by a great core of residential staff.  I have spent this past year helping my sister transition to an independent life, a process that has not been an easy or stress-free journey for either of us….or the staff!  I also just recently wrapped up the final legal details relating to my mother’s small estate (it was a very long and arduous process which is a whole story on it’s own!).

After my mom passed, I told my sister that when I was able, I would take her on a trip as she had never been on a plane before.  And, so we recently went on a Caribbean cruise, something neither my sister nor my family had ever previously done.   It was a trip of a lifetime for my sister (well, honestly, for all of us) and being on a cruise ship enabled her to safely explore her new independent life in ways she likely never imagined before.  I was thankful to have been able to provide her with this opportunity.    Since returning from our trip, though, I have had to take a number of steps back from my sibling-turned-mom role with my sister and learn to let her live her new life, as she has defined it, and experience the consequences that go along with that, both positive and negative.  I will continue to grapple with this new relationship with my sister in 2012, no doubt.

Amidst all of this change on the personal side of my life and the challenges and joys that have come with it, my business has pulled through and not only managed to survive but thrive in 2011.  I’ve been so busy helping existing and new clients (many of whom started out as readers of my blog) address human rights issues in their workplaces that my ability to post with anything resembling a regular frequency has been impacted.   That is something I hope to change in 2012 as I know how much you value staying as up-to-date as possible on human rights issues impacting your workplaces.

Being so busy on the business side, this year I have come to the realization that I can no longer do it alone.    So, in 2012, I will be looking to expand my business by bringing in some great people to help me.  I’ve already had some really positive discussions with some top-notch people I know can help me continue to provide the level of service my clients have come to expect from me but who can also assist in fulfilling my mandate to provide an even greater range of services to help businesses understand how to comply with human rights law and avoid legal liabilities.  Stay tuned!

So, yes, 2011 has been a year of transition for me.  But, for the first time in a long while, I can say that I am looking forward to the New Year and what it might bring.  I hope you feel the same.

I wish all of you an exciting and rewarding 2012!

Donna

“85(1)  Despite Division 1 of Part 2 and subject to the regulations, if the director [of Employment Standards] is satisfied that a proposed employment arrangement between an employer and an employee who has a mental or physical disability is satisfactory for both of them, the director may, on application by the employer in a form acceptable to the director, issue a permit

(a)authorizing the employer to pay the employee a wage that is less than the minimum wage; and

(b) authorizing the employee to receive less than the minimum wage.”

Professor Malhotra raises serious concerns over the fact that provisions such as section 85 even exist in this day and age.  He argues that such provisions are blatantly discriminatory against persons with disabilities and promulgate the notion that employees with disabilities are less worthy of recognition for the value they contribute to the workplace than their non-disabled counterparts.  He urges the provincial governments in Manitoba, Alberta and Saskatchewan to remove these offensive provisions.

I fully agree with what Professor Malhotra is saying.  But, does that mean I think the provision in Manitoba’s legislation should be immediately repealed?

In a word…..No.

Before you scratch your head too hard, yes, I did say what I just said.  I do not believe that the Manitoba government should do away with section 85(1) outright.  But, that is not because I maintain any belief whatsoever that employers should be permitted to pay employees with disabilities less than minimum wage.  Instead, I believe that section 85(1) needs to remain, for now at least, to prop up the very inequities it created.  For, as is often the case when discriminatory systems have been set up by governments and those systems are left to become entrenched, a tangled web often results which makes eventual removal of that system easier on paper than it is in practice.  [One needs only look at the Indian Act for insight on this point].

Over the course of my career, I have had the opportunity to work with Manitoba’s Departments of Family Services and Employment Standards.  I have also accumulated at least a bit of knowledge about the various systems impacting persons with disabilities in this province given my personal experiences as an advocate for my sister who has both physical and intellectual disabilities.  As a result, there are some things I am aware of underlying the creation of section 85(1), its operation to date and the reasons behind its continued existence that I thought would be useful to share for the purposes of this discussion.

As I understand its genesis, section 85(1) was placed into Manitoba’s Employment Standards Code to provide the province with a tool to encourage employers to hire people with disabilities.

In terms of how permits came to be issued, my understanding of the process followed by the Director of Employment Standards is that he has always relied on recommendations from the Vocational Services division of Family Services before granting a section 85(1) permit to an employer.   Vocational Services workers are individuals who work closely with persons with disabilities who fall under legislation that Family Services is responsible for administering in order to assist those persons attain employment.  Back when section 85(1) came into being, if a Vocational Services worker found a job for a person with a disability the worker would assess the person with a disability in order to determine his or her abilities to do the job relative to a person who was not disabled.  For example, if, based on that assessment, it was determined that the person with a disability could only perform 50% of the tasks that the employer required of a particular job compared to a person who was not disabled, the worker would make a recommendation to the Director of Employment Standards that the employer ought to be permitted to pay the person with the disability a wage that reflected what the person was able to do.  In the example I’ve cited, the person with the disability would be paid 50% of the minimum wage, with government approval.

My understanding is that there are currently a total of 21 employers in the Province who actively hold permits under section 85(1) which allows them to employ individuals with disabilities and pay them less than minimum wage.  This is a significantly lower figure than the approximately 300 active permits that were in existence in the early 1990′s.  Of these 21 permits, most of them are for employers based in rural Manitoba, where work for persons with disabilities is especially hard to come by.  All of these permits relate to individuals with intellectual disabilities. I also understand that the individuals for whom these permits have been issued have been with the same employer for upwards of 20 years.

Over the years since section 85(1) was included in the Manitoba legislation, concerns have been raised by the disability community.  Concerns that mirror those that Professor Malhotra has outlined in his editorial.  As I understand it, much talk has occurred about doing away with the section.  But talk around doing away with the section has also lead to the realization that the 21 people who currently hold sub-minimum wage jobs under this section would likely lose their jobs — given they were only employed in the first place on the premise that the employer could pay the employee for the work they were ‘capable’ of performing.  A sad reality, but a reality nonetheless.  The employees and their families raised concerns about the removal of section 85(1) for that very reason.  For them, section 85(1) represented an opportunity.  An opportunity to find long-term gainful employment for themselves or their family members, albeit for less than minimum wage, where there might otherwise be none.

Also underlying section 85(1) and the ability to permit employers to pay less than minimum wage to employees with disabilities is the interconnection of that section with the provincial Employment and Income Assistance  (“EIA”) legislation and other legislation that offers benefits to persons with disabilities who are low income earners (both federal and provincial in nature).  In Manitoba (as presumably is the case in other provinces), individuals with disabilities who meet the EIA requirements are provided with income assistance each month.  It is not a large amount of money, by any means, but it is something.   Any employment income that a person who is receiving income assistance under the EIA must be reported to the province on a monthly basis as well.  When the amount of employment income reaches a particular level, the person with a disability is at risk of having his or her EIA benefits cut off.  They can also lose out on other programs and services.  Things like dental care, to name one example.  This leaves individuals with disabilities who earn any degree of income in a difficult position.  Section 85(1) was seen as a way to enable persons with disabilities to be gainfully employed yet not put at risk the benefits, programs and services available to them if their income exceeded the ‘cut off line’.

So it is this very web-like system that underlies section 85(1)’s existence.  And it is this web-like system that keeps it around.  At least for the 21 employees currently working under sub-minimum wage permits.  To my knowledge, though, Vocational Service workers are no longer requesting such permits from the Director of Employment Standards.  And he is no longer issuing new ones.

While we should, perhaps, be thankful that section 85(1) remains on the books from a practical perspective for only a very small group of people, I do feel that calls for the repeal of sections like section 85(1), although justified, are, in some respects, naive.   If Manitoba, Saskatchewan and Alberta removed these sections from their employment standards legislation tomorrow, would persons with disabilities, particularly those with intellectual disabilities, suddenly find themselves with minimum wage opportunities abound?  Do persons with disabilities in provinces that don’t currently have sections like this find themselves gainfully employed in minimum wage positions?   Leaving aside the reasons why section 85(1) appears to remain in Manitoba’s legislation, Manitoba’s experience would suggest that removing the section would not make a whole heck of a lot of difference for persons with disabilities in practice.  Especially those with intellectual disabilities.  Vocational service workers are still hard pressed to find employment for those they assist.  Volunteer and work experience positions are certainly available but do those placements translate into actual minimum wage-paying jobs?  Very rarely, I would argue.  My sister’s experience is a perfect example.  She has been shifted from job placement to job placement for as long as I can remember and has yet to see anything come of them.   But she persists, in the hope that an employer will see her potential and her efforts and choose to hire her.   Quite frankly, I know my sister would jump at the chance for a job at even sub-minimum wage rates — that is how badly she wants to feel like a contributing member of society.  It’s a heartbreaking fact for a person in my line of work.  (I’ve even tried to help by hiring her myself in the past but the fun of working for your sibling wears off pretty quickly, especially when you’re looking for acceptance outside the protective confines of family).   And, looking beyond what I know of Manitoba’s situation, we have all heard the statistics that those with disabilities remain the largest unemployed group in Canadian society (a fact that Professor Malhotra notes in his editorial).

We should all find section 85(1) of Manitoba’s Employment Standards Code and similar sections in Saskatchewan and Alberta offensive.  We should all demand that the contributions to the workplace of persons with disabilities, regardless of what their disabilities are, should be recognized by payment of at least minimum wage.    But far more needs to be done to address the employment-based discrimination continually faced by individuals in Canada who are disabled than kicking those sections to the curb.  Law makers, in the end, can only do so much even when they try to counter the discriminatory effects of ill-conceived systems put in place years ago with new legislation that aims to value and celebrate persons with disabilities.  Ultimately, it’s employers who need to be convinced of the benefits, economic and otherwise, to employing people with disabilities.   Then and only then will real change happen.

So those are my thoughts on this weighty subject.  What about you?  I’d be interested to hear what you have to say.  And, if you happen to be an employer who provides minimum (or greater) wage opportunities to people with disabilities I’d encourage you to write in and share your perspective.

“The awards recognize the interesting, innovative, and informative sites that are the Canadian legal blogosphere’s best and brightest. But unlike traditional awards, the Clawbies are designed to create awareness for each blogger who nominates another’s blog, and peer endorsements via social media represent a big part of the judging process.

This year, my nominations are for three blogs that I find interesting, topical and happen to be written by solo bloggers like myself:

1. Youth and Work is a blog written by Toronto lawyer Andrew Langille.   As noted on his “About” page, Andrew has established his blog in order to “provide young people with the information they need to succeed in Canada’s increasingly complex economy”.   If it relates to millenials and employment — Andrew covers it and covers it well.  But his blog doesn’t just have relevance to young people.  Employers of millenials will want to read what he has to say as well.   I’ve come to know Andrew a bit from discussions we have had on Twitter where you will not only find his blog posts but everything he happens to be reading about or is involved in and which relates to his niche topic.
2. Toronto lawyer Lisa Stam is the writer behind Employment and Human Rights Law in Canada.  Lisa has been blogging since 2009 on a variety of employment law-based topics, including human rights law issues.  Her focus is primarily on Ontario law but she often offers commentary and insights that go well beyond the limits of that jurisdiction.  Lisa happens to be one of the few female lawyers in Canada who writes a solo blog which, I think I’ve noted before, makes us kindred spirits.  While that does not fall under the Clawbie nomination criteria, she’ll always get bonus points from me just for that fact alone;
3. Although I know he does not need my nomination to top the Clawbie charts, Professor David Doorey’s Doorey’s Workplace Law Blog happens to be the blog I most consistently read and which I most highly recommend.  The reason for that is he writes on topics that often fall squarely within the work that I do.  Beyond that, I just like the guy’s style!  You won’t find any dull lawyer-speak on his blog.  He says what he thinks and he writes in an easily consumable manner.  These are traits that I still do not see reflected very often in law blogs, Canadian or otherwise.

Good luck to these terrific bloggers.  For those of you wanting to know more about the Clawbies or the other great Canadian Law Blogs you can learn from, check out the Clawbies.ca site.

Halloween is a time when many children and adults get dressed up in costume and pretend they are someone or something else one night of the year.   Some workplaces allow employees to dress up if they happen to work on October 31.  I know of some workplaces that actually have after-work Halloween parties.  In other cases, co-workers might just get together after work and attend a Halloween event that doesn’t happen to be sponsored by their workplace.  There are those who put a lot of time and effort into creating an elaborate costume, and others who just throw any old thing on to be able to say they ‘dressed up’.   But have you ever stopped to think whether that costume you have adorned yourself with might offend someone?

Students from Ohio University asked themselves this question and came up with a novel campaign called  ‘We’re a culture, not a costume.’    As noted in this article on the Colorlines.com website, the campaign is designed to bring awareness to the fact that on Halloween some people choose to dawn costumes that perpetuate racist stereotypes.   In each of the posters that are used in the campaign, a student of a particular ethnic background appears holding a photo of a person wearing a Halloween costume that is viewed as racially offensive as it portrays ethnically inappropriate stereotypes.  Also on the poster is the comment “this is not who I am, and this is not okay”.

Interestingly, the campaign is not without its critics.  Just have a look at the hundreds of comments left at the end of Colorlines.com article.  Unfortunately, many of those comments actually go to the heart of why the campaign is needed in the first place.

When I came across this campaign, my immediate thought was back to the year I was articling to become a lawyer.  During that year, the O.J. Simpson trial had everyone glued to their tv’s, especially me and many of my fellow articling students and newbie lawyer friends.  After all, at the time I had full intentions of becoming a criminal lawyer and wanted to see how the big-wig prosecutors and defence lawyers in the U.S. ran a trial of such magnitude.  Not too long after the trial ended, I attended a Halloween party.  While it was not a work-related party, there were a number of people of professional backgrounds in attendance.  In some way or another, most of the people at the party had a work-related connection.  The party was light and fun until a fellow I knew (and who happened to be Caucasian) showed up in full black face as Johnnie Cochran, perhaps O.J. Simpson’s most notable defence attorney.  That’s when the mood at the party took a noticeable turn because a female I knew who was at the party and who happened to be of Jamaican heritage took great offence to the Johnnie Cochran costume.  Or, more particularly, to the fact that the Caucasian male had dressed in black face.  The male was very apologetic and, I believe, very embarassed.  It appeared that he had not really thought that his costume could possibly cause such a negative reaction.  But, it did.  And while I think that it was unfortunate that this situation occurred, I do think it caused everyone at that party to pause and ponder that what might appear to be a harmless and funny costume to some, may cause a much different reaction in someone else, especially when it comes to a costume that has a racial or ethnic association.

So, if you’re planning on heading out this weekend all decked out to attend a Halloween event or you’re putting that last-minute costume together for your child in preparation for Monday’s big candy-fest, stop and reflect on what message that costume might be sending to others.   It might be scarier than you think.

Photo credit: nvadim

I have technology on the brain these days.

My summer ended with a bang and my fall began with a boom as a result of receiving an avalanche of requests by organizations to conduct investigations for them into workplace human rights complaints.  Honestly, I’ve had so many requests for investigation work that it made me wonder whether the summer heat we’ve had in Manitoba this year had an effect on people in ways I never imagined.

But, what in the world does this have to do with technology?

Well, virtually every single complaint that has crossed my desk in the last month and a half has a technology angle to it.  Either there are e-mails that form the basis of the complaint or someone was complaining about comments made on a blog, Facebook or Twitter or text messages served to be the chosen avenue for inappropriate comments and discussions.

Now, fortunately, I’m a bit of a techno-geek.   I’m always reading about the latest technology companies are pushing us to use.  I use cloud-based technology to improve my efficiencies and enhance the level of service I’m able to provide to those who hire me.   I’m heavily engaged (well, when I’m not conducting workplace investigations, that is) working on my blog and I maintain a LinkedIn, Facebook and Twitter account to connect with my clients and those generally interested in what I have to say on the topic of workplace human rights.  As a solo practitioner I’ve spent a good many hours acting as my own IT department.   I’m also a mom of twins who works from home and sometimes has to rely on the good graces of  pre-teen and teenage sitters who only “speak” to me via text to coordinate child care scheduling.  So, I think I’m pretty immersed in this new world of ever-changing and ever-increasing technology that we now live in (check out this post by Nicole Black to get a true sense of just how much the world has changed from a technology perspective in the past few years).  And this self-immersion in technology is fortunate given the pattern I see forming in the complaints I’m being asked to investigate — the pattern of technology being used as the vehicle through which people are being allegedly subjected to discrimination or harassment.

The reason my understanding of technology is a fortunate thing for me is because, as a person often called in to conduct investigations into complaints involving the use of technology, I have good insight into the kinds of questions I need to ask to get at the information I need in order to determine whether discrimination or harassment has occurred using that technology.  Is your blog private or public?  Is your Facebook profile open for all to see or have you established your settings to limit who has access to what you post?  Did you make that comment on your Facebook wall or was it in a direct message?  What’s your Twitter ‘handle’? Did you @ message that tweet or was it a generalized publication to the twitterverse?   Were those text messages tampered with or is what I’m seeing just split messaging?

And these are just examples of initial questions.  The answers given will likely lead to more questions.  You may need to have a gander at the publicly accessible accounts or you may need to determine if you have authority to request access to those accounts.  But, if you then do gain access, do you know how to interpret what you’re seeing?  If you happen to be fortunate to work for an organization that has an IT department, don’t think for a moment that what I’m saying does not apply to you.  The IT people might be able to extract information for you but you still need to direct them as to what you’re looking for and you still need to be able to examine, understand and interpret the information you’ve gained access to in order to determine how it fits into your investigation and what you can conclude from it.

All of this got me to thinking.  Well, aside from the fact that I realize I now speak in a language that results in many people looking at me strangely.  How in the world could I possibly investigate these complaints if I did not have this insight into the operation of the technology being used?  Frankly, I do not think I would be capable of exhaustively examining the circumstances that form the basis of the complaint.  And that would likely have an impact on the conclusions I reach on the evidence.

And, then this got me to thinking again.  (Yes, I’m in a reflective phase at the moment.  Just chalk it up to the after-shock of the volume of complaints I’ve been contending with of late.  Well, either that or the summer heat has gotten to me too).  How in the world would people like those of you reading this blog and who may well be responsible for conducting investigations internal to your organizations handle these technology-laden situations if you did not have this same technology background I do?  In all honesty, I think you would be tremendously disadvantaged in the investigation process.  Your ability to ask the ‘right’ questions and get at the best information would be hampered.   And any time you are hampered in how you can conduct your investigation the overall quality of the evidence you ultimately gather is weakened.  And weak evidence leads to poor conclusions.  And poor conclusions lead to bad decisions.  Bad decisions lead to liability.  And you know I don’t want that for you!

So if you do happen to find yourself investigating workplace complaints from time-to-time and you happen to be the type of person who is generally averse to using technology or you are one of those individuals who thinks that Facebook and Twitter are a complete waste of time, I’m going to ask you to strongly consider dipping your toes into these new technology waters anyway.   Open up a Facebook and Twitter account.  Friend some friends.  Find some people to follow.  Get on LinkedIn and connect with colleagues. Read a few blogs.  And, not just those written by professionals (like this one) but have a gander at the ones written by Jane and Joe Public to get a real flavor for what people are saying on the internet.  SMS (text) or BBM (Blackberry Messenger) your partner or spouse.  Heck, text your kid even if it’s just for fun (you’ll either totally creep them out or you might actually get them to talk to you!).

See how these technologies operate in the real world.

And prepare yourself for the day you’ll be faced with your own avalanche of technology-laden complaints to investigate.   Because that avalanche is coming.  Even at the end of a long, hot summer.

Image above by wagg66.

• Something to ponder: “Women Who Leave the Workplace: Opting Out or Overlooking Discrimination?” : http://t.co/RhE7Gia

• Remember my recent post Secret Recordings are a Live Issue in Employee Human Rights Complaints?  Here’s an interesting commentary on employee use of recording devices on their smartphones:  ” Watch out for the ‘secret spy’ living in your employees’ smartphones” http://bit.ly/ohlzce.

• Good post by @yosie23 on the elimination of Saskatchewan Human Rights Tribunal…I’ve commented too! http://bit.ly/pfinsY

• This article is not only connected to the issue of personal recording devices but can cause additional headaches when employees use their personal electronic devices to breach human rights law in the workplace:  “Workplace use of personal electronic devices on the rise”: http://tgam.ca/Cjm1

• “Facebook becoming a hire/fire source for employers” http://ow.ly/1vmA3I.  But, again, you have to be very careful.  Send me an e-mail at donna (at) donnaseale (dot) ca to get my free e-book on Using Social Networking Sites in the Hiring Process: Smart Move or Human Rights Trap? to find out more.

• I’m certainly seeing this more and more, and it can apply to employee use of either personal or business-authorized smartphones/cellphones: ” ‘Sexting’ becoming a problem in the workplace” http://bit.ly/ne4aNk

• I fully agree with this author’s points!  “Five egregious errors that endanger employment investigations”: http://t.co/appRk6a

• While this post is written about general human resources policies, the points raised apply to human rights-based policies as well: “Spotting Ineffective Policies” http://bit.ly/pXZ0Fr

• The key here is to remember what discrimination actually means under human rights law (hint: it’s not merely different treatment): ” Do you discriminate based on silly grounds? part 1″ http://bit.ly/qCceWl