Tuesday, July 26, 2016

Mandatory retirement in Canada

The summer issue of Labor Law Journal carried an interesting article about the state of mandatory retirement practices in Canada. “The Uncertain State of mandatory Retirement in Canada” queries to degree to which mandatory retirement at age 65 has been abolished in Canada.

Presently, Canadians subjected to a mandatory retirement rule can file human rights complaints based on age discrimination. (Some jurisdictions may also preclude claims where the claim arises from a requirement in retirement or pension plan.)

All jurisdictions also have statutory retirement requirements for some occupations (e.g., police, judges). In other occupations, employer seeking to impose mandatory retirement must demonstrate that the policy comprises a bona fide occupational requirement.

The Meiorin test for bona fide occupational requirements requires the policy must be adopted in good faith, for a rational job-related purpose, and is reasonably necessary to accomplish that purpose. Few mandatory retirement policies have met these criteria when challenged, although some employers have successfully argued accommodation imposes undue hardship.

The article concludes with an interesting discussion of legitimate strategies available to employers seeking to create turn over among older workers. These include reducing the availability of pensions (these were historically the quid pro quo for mandatory retirement), requiring medical or competency testing, offering financial incentives for retirement, or provide notice of termination (with the risk of an age discrimination complaint).

-- Bob Barnetson

Friday, July 22, 2016

Labour & Pop Culture: Ghost of Tom Joad

This week’s installment of Labour & Pop Culture is “The Ghost of Tom Joad” by Bruce Springsteen. Tom Joad is a character from The Grapes of Wrath and the song is a bit of a nod to Woody Guthrie’s “The Ballad of Tom Joad”.

In the novel, the Joads were tenant farmers forced off the land in Oklahoma who set out for California. Upon arriving, they find a huge labour surplus that employers take horrific advantage of. Family Friend Jim Casy works as a union organizer (while the Joad clan works as scabs) and Tom Joad sees Casy beaten to death. Joad kills Casy’s killers and, long story short, the whole story ends rather depressingly.

Springsteen’s song reveals how little has changed for economically vulnerable people since the 1930s. Some become desperate enough to do anything to survive (and, for that, are criminalized) while the rest just disappear from society and our consciousness.

I picked a Mumford & Sons/Elvis Costello cover of the song so you could hear the lyrics a bit better (although this Springsteen version is amazing).



Men walkin' 'long the railroad tracks
Goin' someplace there's no goin' back
Highway patrol choppers comin' up over the ridge

Hot soup on a campfire under the bridge
Shelter line stretchin' 'round the corner
Welcome to the new world order
Families sleepin' in their cars in the Southwest
No home no job no peace no rest

The highway is alive tonight
But nobody's kiddin' nobody about where it goes
I'm sittin' down here in the campfire light
Searchin' for the ghost of Tom Joad

He pulls a prayer book out of his sleeping bag
Preacher lights up a butt and takes a drag
Waitin' for when the last shall be first and the first shall be last
In a cardboard box 'neath the underpass

Got a one-way ticket to the promised land
You got a hole in your belly and gun in your hand
Sleeping on a pillow of solid rock
Bathin' in the city aqueduct

The highway is alive tonight
Where it's headed everybody knows
I'm sittin' down here in the campfire light
Waitin' on the ghost of Tom Joad

Now Tom said "Mom, wherever there's a cop beatin' a guy
Wherever a hungry newborn baby cries
Where there's a fight 'gainst the blood and hatred in the air
Look for me Mom I'll be there
Wherever there's somebody fightin' for a place to stand
Or decent job or a helpin' hand
Wherever somebody's strugglin' to be free
Look in their eyes Mom you'll see me."

Well the highway is alive tonight
But nobody's kiddin' nobody about where it goes
I'm sittin' down here in the campfire light
With the ghost of old Tom Joad

-- Bob Barnetson

Tuesday, July 19, 2016

Job design and safety voice

A recurring question in OHS is why workers stay silent in the face of unsafe workplaces. Staying silent undermines the effectiveness of the internal responsibility system which relies upon workers identifying hazards for employers to remedy.

A recent article in Accident Analysis and Prevention entitled “Staying silent about safety issues: Conceptualizing and measuring safety silence motives” reports on three studies that identified various safety silence motives mostly in the health-care industry. The studies found:
… there were several reasons that employees refrained from speaking up about safety issues, such as the fear of altering relationships, perceiving management as unsupportive, assessing issues as nonthreatening, and having heavy time pressures or excessive workloads (p. 153).
The importance of the last factor (i.e., how job design can increase or retard safety behaviour) was particularly notable. This finding suggests that employer job design choices affect not only which hazards are present in the workplace but the likelihood of workers raising concerns about them.

-- Bob Barnetson

Friday, July 15, 2016

Labour & Pop Culture: Five O'Clock World

This week’s installment of Labour & Pop Culture is “Five O’Clock World”, originally recorded by The Vogues. On the surface, the song is a typical ode to quitting time. 

But looking a bit more deeply into the lyrics, there is an interesting mention about the “game face” many people put on in the workplace (“And there’s a five o’clock me inside my clothes”) when their real passions (in this case, “a long-haired girl who waits, I know/To ease my troubled mind, yeah”) and personalities emerge.

One of the more interesting aspects the grievance work that I have done for my union is getting to know my co-workers away from the workplace. It is endlessly fascinating to contrast the “real” people from the “them” I know at work (although, admittedly, the real person I’m seeing is often in great distress so may not be a true representation of who they are—often that emerges only months and years later as the crisis passes and we keep in touch).

It is also interesting to see the strategies that some of these folks employ to cope with the demands of work. Some adopt a very carefully constructed persona to cope with difficult circumstances or co-workers and are very conscious to meticulously play the part they have created. Others may just simply suppress certain aspects of their personality or certain reactions in order to get by. Sometimes, this intentional lack of authenticity takes a great emotional toll.

Many of us will (unfortunately…) recognize this song from The Drew Carey Show. I picked a moodier version of the song by Hal Ketchum.



Up every mornin' just to keep a job
I gotta fight my way through the husslin' mob
Sounds of the city poundin' in my brain
While another day goes down the drain

But it's a five o'clock world when the whistle blows
No one owns a piece of my time
And there's a five o'clock me inside my clothes
Thinkin' that the world looks fine, yeah
Holiday, yeah...

Tradin' my time for the pay I get
Livin' on money that I ain't made yet
Gotta keep goin', gotta make my way
While I live for the end of the day

'Cause it's a five o'clock world when the whistle blows
No one owns a piece of my time
And there's a long-haired girl who waits, I know
To ease my troubled mind, yeah
Holiday, yeah...

In the shelter of her arms everything's okay
She talks and the world goes slippin' away
And I know the reason I can still go on
When every other reason is gone

In my five o'clock world she waits for me
Nothin' else matters at all
'Cause everytime my baby smiles at me
I know that it's all worthwhile, yeah
Holiday, yeah...(X3)

-- Bob Barnetson

Tuesday, July 12, 2016

Employer dinged $266k for discrimination case

There was an interesting appeal decision on a discrimination case out of Ontario last week. Vicky Strudwick became deaf late in life (possibly as a result of a virus). Her Mississauga employer failed to accommodate her disability.

According to court documents, the employer also undertook a campaign of abuse designed to force her to quit. You can read the court decision here.

The Toronto Star summarized some of the “high”-lights of the employer’s performance:
Both bosses “tormented (Strudwick) for the specific purpose of making the work environment intolerable,” the court noted in its sharply worded decision, citing evidence presented in court last summer. 
This included advising co-workers not to talk to Strudwick and to telephone her with information she needed. Not hearing the phone — thereby missing the information — provided her superiors with an opportunity to chastise her. 
When Strudwick requested workplace accommodations — including a Canadian Hearing Society assessment, visual fire alarm, a special telephone designed for hearing impaired people, and permission to turn her desk around so she could see people as they approached her — Hoffman denied them, taking the position they were “unnecessary,” the court decision stated.
Strudwick was eventually fired, which led to lengthy legal proceedings. Strudwick won her case but appeals the damages. Ontario’s Court of Appeal increased the damages awards by more than $100,000 to $266,000. The employer’s efforts to shift the damages to its managers was unsuccessful.

Overall, this case unscores the financial and reputational peril faced by employers who seek to push workers requiring accommodation out of the workplace.

-- Bob Barnetson

Friday, July 8, 2016

Labour & Pop Culture: Working in a Coal Mine

This week’s instalment of Labour & Pop Culture is “Working in a Coal Mine” by Devo (the “Whip It” band). The song was originally a hit in 1966, but the 1981 Devo version is the one most familiar to listeners today.

The key theme is that work--specifically coal mining--is hard drudgery and the singer is so tired at the end of the week that he can’t enjoy the weekend.

I couldn’t find the original video I remember from MTV but this live performance captures the sexual undertone that Devo (always a bit of a performance art group) gave what is otherwise a pretty straight forward song about work.



Well I been workin’ in a coal mine
Goin’ down, down
Workin’ in a coal mine
Whew! About to slip down

[chorus]

Well I been workin’ in a coal mine
Goin’ down, down
Workin’ in a coal mine
Whew! About to slip down

Five o’clock in the mornin’
I’m up before the sun
When my work day is over
I’m too tired for havin’ fun

[chorus]

[chorus]

Lord I am so tired
How long can this go on?

[chorus]

[chorus]

Five o’clock in the mornin’
I’m up before the sun
When my work day is over
I’m too tired for havin’ fun

[chorus]

[chorus]

Lord I am so tired
How long can this go on?
I been workin’, goin’, workin’
Whew! About to slip down

-- Bob Barnetson


Tuesday, July 5, 2016

Bill 6: Take it up with the government...

The government’s consultations on Bill 6 (which granted farm workers access to basic employment rights) will continue through the summer. One of the working groups is discussing in what way (or to what degree) the Employment Standards Code ought to apply to paid employment on farms. Until this consultation process wraps up, Employment Standards don’t apply to farm workers.

There is significant opposition among many farmers to many of the workplace rules outlined in the Employment Standards Code. How, ask some farmers, are you going to apply maximum hours of work during a grain harvest when bad weather threatens the crop? (The assumption underlying this particular question is that saving the crop is more important that the health and safety of the paid workers.)

Since this is an area of interest to me, I follow a number of discussion groups where most posters are opposed to Bill 6. Last week there was an interesting note posted by an administrator in one of the groups saying (and I’m paraphrasing since the group is private) “we won’t be posting specifics of employment disputes between workers and farmers; those disputes should be addressed with the appropriate government agency.”

A private discussion group can most certainly have whatever content rules it wants. The interesting thing here is that a moderator of a group sharply opposed to government intervention in farm employment practices suggesting that employment disputes should be resolved… by seeking help from the government (which is, due to the opposition of farmers, not at presently available).

I very gently pointed this out (I try to minimize my posts to providing information), noting that the continuing exclusion of farm workers from the Employment Standards Code means that, when there are disputes, the resolution options available to workers basically boil down to suing or shaming (that latter, I assume, being the intent of the workers who wanted to reveal disputes on the group).

One (unstated) implication is that placing farm workers under the ambit of the Employment Standards Code provides a low cost and relatively quick way to resolve such disputes. There was, shall we say, “limited interest” in this perspective among those discussion group members who responded. This discussion thread has since been deleted by the moderators.

Yet the reflexive “let the government fix it” nature of the original post strikes me as somehow important. Despite the opposition to Bill 6, deep down, is there an undercurrent of “let the government fix it” when sticky issues arise?

It will be interesting to see the degree to which Bill changes are accepted over time. Thinking back to the late 1980s, many Alberta farmers were vehemently opposed to mandatory seat belt laws. Resistance to that has faded. Perhaps we’ll see a similar trajectory with employment rights for farm workers?

-- Bob Barnetson