Workplace safety versus worker privacy

Employers often struggle to balance their interest in improving workplace safety with workers’ right to privacy. For example, the history of workplace drug and alcohol testing often turns on the circumstances under which is it appropriate for an employer to require a worker to submit to testing (e.g., post incident, suspicion of impairment, randomly).

Employers often assert (and behave as if) workplace safety considerations trump workers’ privacy rights. This is good rhetorical terrain for employers to argue from because it frames opponents of testing regimes as being opposed to (or at least not prioritizing) safety.

When there is an absence of evidence to support the efficacy of initiatives like testing (which is often the case), employers can revert to some version of ”better safe than sorry” as a rationale to justify their position. This rationale runs contrary to the generally acceptable proposition that they who make a claim must substantiate it.

I recently read a 2018 arbitration decision about cognitive testing for Edmonton transit drivers that was quite interesting. You can find the full decision on canlii.org under this reference:

Amalgamated Transit Union, Local No. 569 v Edmonton (City), 2018 CanLII 82319 (AB GAA)

The nub of the case (and I’m paraphrasing pretty liberally) is there had been two bus-related pedestrian fatalities and the government regulator required the city to implement a transit driver evaluation policy. The city’s response was to implement mandatory (1) road testing and (2) cognitive testing.

The cognitive testing included a computerized screening tool. If workers scored above a threshold on the tool, they were then suspended with pay and required to undergo medical evaluation. (There was no evidence that the two fatalities were related to cognitive impairment of the drivers.) The medical testing and release of information violated these workers’ privacy.

The grievance basically asserts that the city had no legal or factual basis for implementing (1) the mandatory screening and, for those who fail the screening, (2) the follow-on medical assessment. The union also argued the cognitive screening test, having been developed primarily to screen for cognition decay in older drivers, was not a valid test for an otherwise healthy population.

In the end, the arbitration panel ruled based upon the union’s argument around the testing being unreasonable and declined to address the (rather troubling) issue of the test’s validity and reliability. What makes this case interesting is that, while the matter awaited adjudication, the employer proceeded with the testing under the “work now, grieve later” principle and we actually have results about the efficacy of the testing.

The firm providing the testing predicted that, of the 1535 drivers tested, 1-2% would be suffering from cognitive impairment (so 15 to 31 drivers, roughly). At the time of the hearing, only one driver was confirmed as having cognitive impairment and a second driver’s status was undetermined (so the true rate of cognitive impairment was 0.12%, or one-tenth the rate the testing firm asserted). The screening tool sent 88 drivers for medical assessment, of whom the vast majority were false positives. (A small number of other drivers returned to work with modest work restrictions related to other medical conditions.)

This sort of outcome (where the proponents vastly over-state the true level of risk in order to push forward with testing) is not uncommon. Random drug testing is another example where, despite decades of effort, there is no good evidence that random testing reduces injuries. Certainly, we would expect a company that is selling testing to make claims that create the appearance that their product is valuable to potential clients. And, these kinds of circumstances are why, generally speaking, we expect those who make a claim to substantiate it.

It is also interesting to note the uneven application of the better safe than sorry principle by employers.

• When it is employees who bear the cost of an OHS intervention (i.e., have their privacy invaded), employers are happy to play by better safe than sorry and not demand high levels of proof. 
• When employers must bear the cost (e.g., face disrupted production or higher material costs) because workers have concerns about unsafe working conditions or materials, employers generally demand very high levels of proof before they will alter their processes. 

This existence of this double standard speaks to which (and whose) interests are prioritized in workplace regulation.

-- Bob Barnetson

Labour & Pop Culture: Office Drug Testing

This week’s installment of Labour & Pop Culture revisits The Office to look at how employers handle drug use in the workplace. This skit is relevant given that, on October 17, cannabis consumption in Alberta (and elsewhere in Canada) will become legal (with some, still emerging, restrictions).

Alberta’s framework for regulating cannabis use is available online and includes a brief (and vague) discussion of cannabis use by workers:

Impairment in workplaces
Workers who are impaired on the job – whether by alcohol or drugs – are a danger to their coworkers and themselves. Alberta already has rules and programs in place to address impairment on the job and keep workers safe, but we are exploring options to better address all forms of impairment in the workplace, and will continue to work with employers, labour groups and workers to ensure the rules continue to address impairment issues. This may include developing additional regulations, education or training programs.

Employer efforts to randomly test workers for drug use and/or impairment have been a long-standing source of conflict in Alberta. For example, Suncor’s decision to randomly test workers has yielded an extensive amount of litigation since 2012 and the issue remains before an arbitration panel. An overview of this litigation can be found here.

Drug testing entails serious and competing interests. It is often framed as a contest between workers’ right to privacy and employers’ obligation to keep workplaces safe (although the evidence that random testing has any safety effect is basically zero).

The debate about drug testing is often tinged with an underlying moral judgment. It goes something like this: since drug use is illegal, workers who use drugs (on their own time) deserve to experience the workplace consequences associated with testing because they are criminals.

This dynamic is, in part, the premise of the joke in The Office skit above. The legalization of cannabis use undercuts this moralizing and it will be interesting to see how employers handle this change in the law.

-- Bob Barnetson

Research: Cannabis on workplace injury

In June of 2018, the federal government is expected to legalize pot. Many employers have, in the past, expressed concern about the safety effects of drug use in the workplace. And there is ongoing litigation about mandatory random drug testing at a worksite in Fort McMurray.

The Institute for Work and Health has very helpfully posted some preliminary information about the state of research on the effects of cannabis on work safety. IWH researchers do high-quality work and are currently doing a systematic review of the research on the effects of various drugs on workplace injuries, deaths and near misses.

While the review has not yet been completed, the authors have shared some preliminary findings:

1. There are no published studies on the effects of legalized recreational cannabis on workplace outcomes. This is important because employers must typically demonstrate some minimal level of proof to support policies such as random drug testing.

2. The broader evidence of cannabis use on workplace outcomes (e.g., attendance, turnover, injuries) is highly conflicted and no conclusions can yet be drawn. This suggests that the popular perception of pot as problematic may be incorrect. There is also no data about the incidence of workplace cannabis use.

3. The evidence on cannabis use in safety sensitive positions is mostly based on studies of driving behaviours. Extrapolating these studies to other safety-sensitive jobs is likely analytical over-reach.

4. Cannabis-use testing does not establish impairment (whereas testing for alcohol can do so). This poses a major barrier to research and practice.

This kind of research is helpful because it demonstrates that the current state of knowledge about the workplace effects of legalizing dope is very limited.

This is not all that different from what we know about other forms of drug use in the workplace. The short of that is that there is little evidence linking drug use (as distinct from alcohol use) to increased injury rates (which surprised me) and there is little evidence suggesting that random testing reduces injury rates (less surprising if there is no relationship between drug use and injury to begin with).

That absence of evidence has not stopped employers from advancing mandatory drug testing policies (which workers and unions have resisted). You can read about a 2012 dust-up on this issue here.

Employers typically argue that, despite the lack of evidence to support their policies, they have an obligation to ensure workplace safety and, thus, they have to do something. Setting aside their assumption that there is a problem (which the evidence suggests there isn’t), the idea that employers ought to act to make workplaces safer based only on suspicion of harm is an interesting one.

This approach resonates with the precautionary principle in occupational health and safety, which states that, where an employer believes that a workplace substance or process may cause harm, then it should be up to the person advocating for the substance or process to prove it does not cause harm.

Interestingly, employers have generally resisted the precautionary principle when it might apply to the potentially toxic substances or process they choose to expose workers to. Given this, that they suddenly (and narrowly) laud the precautionary principle around drug testing ought to be viewed with suspicion.

If employers are truly motivated to make workplaces safer, then they ought to be come to the table and make a trade: workers might agree to having their privacy breached if, in exchange, the employer agreed to imposing the same standard on the substances and processes (e.g., shift work) that they subject workers to.

I’ll believe that when I see it.

-- Bob Barnetson

PS. Although it is irrelevant to the argument I’ve presented above, please note that (1) I don’t use pot, (2) I have never used recreational drugs (in 1989, I had 10 narcotic-based painkillers prescribed for a tooth absence but that was not recreational!), and (3) I’m pretty ambivalent about legalization. I disclose this to forestall the (shitty) arguments that arose that last time I wrote on this subject essentially accusing me of using my position to advance my own (presumably wild!) drug use.

Labour & Pop Culture: Electronic Plantation

This week’s installment of Labour & Pop Culture is “Electronic Plantation” by Jello Biafra and the Guantanamo School of Medicine. 

This song examines how employers have made employment precarious through various strategies, such as off-shoring jobs, free trade agreements, and electronic monitoring of employees.

The song is pretty direct about economic globalization:

Pit the whole world against each other
For who will work for the lowest wage
The rest of you can die
As epidemics rage

Yet it also really brings home the relationship between political decisions and the impact these have on the working lives of real people:

Same old job
Now you're just a temp
Less pay, no benefits
No raise, no vacation
Or sick leave days

Some of the lyrics seems a bit polemical:

We monitor you all
Every time you leave your chair
Or talk on the phone
One minute overtime
At the toilet
And you're fired

Yet even in my privileged position, I’m subjected to electronic monitoring (soon to be intensified with the roll out of the Student Success Centre) which will be used to ensure I meet whatever service standards the employer sets. Whether the benefits of this will offset the costs are unclear…

This is a fan video (best one I could find):



Ya-Ha-Ha
Ho Ho Ho
Shipped your job to Mexico
But we got plans for all of you to re-train

Pit the whole world against each other
For who will work for the lowest wage
The rest of you can die
As epidemics rage

Worked hard all your life
Now you must go on line
And stare all day
At a little plastic screen

Electronic plantation
Electronic plantation

Same old job
Now you're just a temp
Less pay, no benefits
No raise, no vacation
Or sick leave days

Chain the slaves to the oars

Faster, faster, row some more!
In carpel tunnel caverns
Til you break

We monitor you all
Every time you leave your chair
Or talk on the phone
One minute overtime
At the toilet
And you're fired

Electronic plantation
Electronic plantation

Only use we've left for you
Is burn you at both ends
Locked in the research triangle
Shirtwaist fire's flames
Lot's of people need your job

And you can be replaced

Replaced
Replaced
Unemployed and overqualified

Strikers who gave their lives
Fighting for basic human rights
That don't mean nothing anymore

Got you back down on the floor
Through the wto
Rich get richer
Poor get poorer

Factory or phd
You are all termites now
Laptop is your ball and chain
Til we downsize you away

Shop at home
Is your reward
Your best friend is a mouse

Electronic plantation
Electronic plantation
Electronic plantation
Electronic plantation

-- Bob Barnetson

Government withholds secret report on farm worker injury insurance

Last week, the Journal of Workplace Rights published an article I wrote entitled “'Fortis et Liber’ unless you are a farm worker: Workers’ compensation exceptionalism in Alberta, Canada.” The article is open access so you can download the full text from the link above.

The gist of the article is that farm workers and firefighters have a lot in common in terms of workplace injuries. Neither group can refuse unsafe work (for different reasons). Both groups have a heightened incidence of occupational cancers.

Yet, while firefighters have exceptionally good access to workers’ compensation (including presumptive status for many forms of cancer), farm workers have effectively no access. The article goes on to suggest Alberta’s conservative government is excluding farm workers to curry political favour among rural voters.

On a related note, last fall Alberta Agriculture and Rural Development put out a call for proposals for a study on the types of levels of farm worker injury insurance currently in use in Alberta. The risk associated with (possibly) low levels of liability insurance, according to the request for proposals, is that “many farm businesses may be at significant financial risk without really knowing it.”

The study (which was concluded early this spring) was designed to investigate various insurance products available to Alberta farmers (including private insurance offerings), quantify the level of use and reporting requirements, and compare the top three private offerings to the (public) WCB offering. Sounds interesting! The government has a history of sitting on farm safety reports so I FOIPped it to see if I could jolly along the release.

Last week, I got notice that, after a delay to allow third-party consultation, the government has decided to deny my request to see this (now) “secret report”. There is no real explanation for the denial, just sections of the FOIP Act (harmful to business interests, invasion of third party privacy, a slew of “might embarrass or pre-emptively disclose government intentions” sections).

I’m going to appeal the government’s decision to keep this taxpayer-funded report a secret. I sure do wonder what this secret report might contain! If someone wants to post me a copy on the QT, my mailing address 10303 138th Street, Edmonton T5N2J2.

-- Bob Barnetson

Bad employers? We don't see no bad employers.

In 2010, the Auditor General identified that the government of Alberta was (among other things) not doing a good job of identifying high-risk employers and made some recommendations (which the government has still not addressed). This is an issue because a part of Alberta’s largely complaint-driven enforcement strategy is based upon focusing inspection activity on high-risk employers. The Alberta Federation of Labor tried for years to get this list of unsafe employers but has given up.

Today, CBC is reporting that Alberta is still refusing to release its list of unsafe employers despite the information and privacy commissioner’s office suggesting it has no basis for such a refusal. This is rather odd because Alberta does maintain a publicly searchable database of employer injury records. Back in 2010, then-Minister of Employment and Immigration Thomas Lukaszuk touted the database as an example of Alberta leading the nation in safety record disclosures:

Mr. Lukaszuk: Mr. Speaker, if you want to talk about transparency, you would be glad to know that Alberta is the only province in Canada if not in North America that actually has a full online, free-of-charge disclosure of the occupational health and safety record of virtually every employer in this province. So get on the computer, look up your employers, and you’ll see exactly what their safety track records are. Only in Alberta. Alberta Hansard, March 9, 2011, p. 267

Unfortunately, it is not realistically possible to do compare and contrast search of employers using this database to identify which employers a worker might not want to work for. This seems contrary to basic (neoliberal) principle that workers are responsible for their own safety by choosing safe employers:

Mr. Lukaszuk: Thank you again, Mr. Speaker. Well, I am glad that this member brought this question forward because one of the reviews that I’m doing right now is whether I am able to release not only the records of employers who are underperformers but all employers in Alberta so that Albertans can take a look and see how their place of employment is faring and whether they choose to work or not work for that particular employer. Alberta Hansard, April 15, 2010, p. 786.

Three years later, apparently the government has decided that…“release of the information would harm business interests.” 

Yeah, because protecting employers from the consequences of their own bad behaviour is the compelling public interest here… . Why is it that Alberta publishes a list of employers who rip off workers, but not a list of employers who repeatedly maim and kill workers? 

CBC applied for a review by the office of the information and privacy commission. Even before the review started, the government indicated it would not be changing its position. CBC has now applied for an inquiry which might (eventually) force the government to disclose this list.

It is useful to have some context around freedom of information in Alberta. The idea is that the public should have access to their own personal information held by the government as well as general information collected by the government (subject to certain exclusions). This kind of access creates transparency and accountability.

My experience has been that Alberta’s government goes to great lengths to avoid releasing information that will make its policies or its corporate buddies look. Here are some examples of stuff I have seen in labour relations over in the past 10 years:

1. Data about controversial matters being burned to CDs/DVDs (later labeled “ABBA tunes” and “Mom’s recipes”) rather than stored on government servers in order to hide this data from FOIP requests (because the files won’t show up in a records search of the servers).
2. Being asked to destroy materials in anticipation that a FOIP request would be coming in. "Sorry, no records were found!"
3. Endless delay in releasing publicly funded survey data (via appeals) only to have the (relatively innocuous) data released on the government website years later with no fanfare and buried deeply in the site.
4. Outrageous fees associated with requests. I was quoted $10,000 to get a count of child labour complaints in Alberta. And $236,000 for records around injury rates. When I got the injury-rate stuff (after scaling down the request to only $4000), virtually the entire three-inch pile was redacted.

Based on chats with other researchers, these examples are hardly unique and this behaviour is not limited to just the field of labour relations.

The government's reluctance to release this data is likely based on this chain of reasoning:

1. If we identify who the repeat offenders are, people will ask what we've been doing about them and how effective that has been. 
2. Since we've been doing nothing that has proven effective, we'll look bad. 
3. Someone will also compare the list of bad actors to the list of employers who hold "Certificates of Recognition" for their injury prevention efforts (and get workers' compensation premium rebates).
4. This will make clear that the whole partners in injury reduction program is basically smoke and mirrors.

The conservative government clearly has a culture of hiding information from the public to benefit itself and its friends. That this endangers the health and safety of workers is apparently a price the government is satisfied to pay.

-- Bob Barnetson

Commentary on federal union "transparency" bill

The National Post carried an interesting opinion piece addressing the federal government's efforts to make unions "more transparent". The background is that the feds want unions to disclose lots of information because unions (via their members) receive a public benefit (union dues are tax deductible).

The authors of the opinion piece suggest, if that is the principle behind the bill, then the bill should go much further and also require corporations to disclose information (as they get all manner of public benefits). That the Tory's bill does not do so, suggests this is more of an attack on unions than a principled approach to transparency.

-- Bob Barnetson

The evidence for drug testing in Alberta workplaces

Last week, I appeared in a CBC call in show about the implementation of random drug testing among Suncor employees as part of the Drug and Alcohol Risk Reduction Pilot Project (DARRPP) in Alberta’s energy and construction sectors. 

The basic argument made by DARRPP for random testing is a safety one: violating employee privacy rights is warranted because random testing will make workplaces safer. Preparing for the interview, I read a number of studies that (to my surprise) indicate (1) random drug testing (as distinct from other kinds of drug testing) is not generally associated with a reduction in injuries and (2) drug use (as distinct from alcohol use) on the job or off is not associated with an increase injuries. This seems to undercut the safety argument almost entirely, which was the message I delivered on the show.

Since then, I’ve had a fair number of emails and phone calls with people asking about the evidence. This is a complicated request: (1) there are many studies, and (2) designing and executing a study often entails significant tradeoffs so sometimes findings require some expertise to understand. There is also the matter that it is not possible to prove a negative (i.e., that drugs never cause injury rates to go up and that random drug testing never causes injury rates to go down). Rather, we typically require those who assert a relationship (i.e., DARRP) to show evidence that it exists, so let’s start there.

The DARPP website cites two studies. The first indicates random alcohol testing of drivers in the US transport industry reduced fatal crashes by 23% among large trucks. DAARPP doesn’t tell us which study that is and I didn’t run across it. But the question at hand is whether illicit drug testing (not alcohol-testing) reduces injuries, so this study has no real bearing on the issue.

The DARRPP website cites another US study that shows mandatory alcohol and drug testing reduces positive tests by 50%. Again, I couldn’t find the study but let’s assume this is correct. The question is whether a reduction in positive test results is associated with any difference in injury outcomes? On this, we have no information. As drug tests measure prior use (but not impairment), positive tests might have little to do with workplace injury rates. Or the reduction might indicate gaming behaviour (“Psst. Buddy, can I borrow some urine?”). If so, a reduction in positive tests is largely meaningless.

DARRPP also kindly sent me a press release about a 2001 study they thought I should look at: Gerber, J. and Yacoubian, G. (2001). Evaluation of drug testing in the workplace: A study of the construction industry. Journal of construction engineering and management. 127(6): 438-444. While this study found that firms that implemented drug testing saw a 51% reduction in injury incident rates, there was no indication that these results stemmed from random drug testing (as opposed to pre-employment, reasonable cause and post-incident testing—none of which are the subject at hand). This study also has a small sample and poor response rate. Overall, this study really tells us nothing useful about the impact of random drug testing on workplace injuries.

I looked back through my notes and browser history and started to pull together what I reviewed for the CBC interview. Rather than attempt a half-assed systematic review, what I’ve done is selected those articles which present such reviews themselves. This should allow anyone who is keen to do so, the ability to go back and review each article on their own.

Institute of Medicine (1994) Under the Influence? Drugs and the American Work Force. Washington: National Academy Press. This book-length review is one of the better reads, despite the relative age. It found no good studies on the effectiveness of random drug testing (pp. 226-227). The effect of a drug in a laboratory varies and can be either positive and negative (depending on dose and testing). It is difficult to transfer this knowledge to determine the impact of drug use in the workplace. There was too little data to indicate that drug use was associated with increase injury and it is unclear if there is a causal relationship (i.e., some other factor may be at play).

A slightly more recent review is Macdonald, S. (1997). Work-place alcohol and other drug testing: A review of the scientific evidence. Drug and alcohol review. 16(3): 251-259. This article also indicates that there was little evidence for a linkage between drug use and workplace injury and no evidence drug testing significantly reduces workplace injury.

A study by three Alberta researchers for the government of Alberta is Beach, J., Ford, G. and Cherry, N. (2006). Final report: A literature review of the role of alcohol and drugs in contributing to work-related injury. Edmonton: University of Alberta, Department of Public Health Sciences.  On the issue of “is personal drug use associated with workplace injury”, this study is worth quoting at some length:

Overall this literature is difficult to evaluate, and probably inadequate to reach a definitive conclusion. If drug use is associated with work-related injury it appears to be more apparent among males, possibly more likely to occur with cocaine use, and possibly only occurs in certain situations such as when driving or in other ‘high risk’ work. Further, while a slim majority of studies appear to show an association of some sort, even within these studies this does not necessarily constitute causation. (pp. 13-14)

The authors found the evidence also too slim to know if drug use at work or immediately before a workplace injury increased the risk of injury. On the question of whether drug testing of any type affected workplace injuries, the studies were too weak to say anything definitive.

Moving onto actual studies, one of the larger studies is Hoffman, J. and Larison, C. (1999) Drug use, workplace accidents and employee turnover. Journal of drug issues. 29(2): 341–364. This study used nationally representative US data to find that drug use in general is not associated with a higher risk of workplace injury, with little indication of any such relationship in higher risk occupations such as construction, transportation and skilled labour.

An interesting study is Macdonald, S. (1995). The role of drugs in workplace injuries: Is drug testing appropriate? Journal of drug issues, 25(4): 703–23. This study uses self-reports to conclude illicit drug use is not a major cause of job injuries. This study seeks to control for (and understand) the impact of other variables on the relationship between drugs use and injuries—a failing of many other studies.

One of the studies that is sometimes cited as indicating random testing is effective is Miller, T., Zaloshnja, E. and Spicer, R. (2007). Effectiveness and benefit-cost of peer-based workplace substance abuse prevention coupled with random testing. Accident analysis and prevention. 39(3): 565-573. A careful read shows that the interactive effect of peer-based interventions and random drug testing was associated with a one-third drop in workplace injuries. The authors note that is not possible to disentangle the effect of the two interventions (peer intervention and random drug testing). The time series data shows the vast majority of the reduction followed the peer intervention; injury data is effectively flat after random testing starts. It may be the threat of testing may have contributed to willingness to participate in peer intervention, but we don’t know that.

Another construction-specific survey is Olbina, S., Hinzo, J. and Arduengo, C. (2011). Drug testing practices in the US construction industry in 2008. Construction management and economics. 29(10): 1043-1057. This study reports a statistically significant relationship between positive random drug tests and higher injury rates, suggesting drug use can increase the change of injury. There were a number of limitations noted in the study: 14% response rate, with only two-third using random testing, small sample size (53 firms), and a bias towards larger firms. An average of 2.23% of random tests were positive, suggesting illicit drug use is minimal.

The question I’m left is this: if there is no evidence that random drug testing reduces workplace injury rates, why would employers spend money on it?

There are several possible answers. They may have been sold a bill a good by companies that do the random testing. The notion that testing will reduce injuries accords with most people’s (incorrect) common-sense reaction that testing should reduce injury rates so that would be an easy enough sell.

Or there may be some other agenda at play. Testing may dissuade drug users from working at places with testing. If drug-use is associated with other undesirable behaviours (e.g., propensity to quit), then perhaps random testing is really about winnowing out these workers.

Testing also implicitly blames workers for workplace injuries, taking the heat off employers for organizing work unsafely and off the government for doing a poor job of enforcing the rules. And it makes it look like employers are doing something about the problem of workplace injuries. There is also a strong moral dimension to the issue of drug testing that can sometimes cloud people’s judgment.

Or perhaps these companies just believe (contrary to the evidence) that testing works. They are certainly entitled to believe that. Except that testing is a huge invasion of workers’ privacy and is demeaning, so ought to occur only when there is some evidence of its efficacy at increasing safety. Absent such evidence, the case for random testing looks pretty weak.

-- Bob Barnetson

Don't google-up prospective employees

Alberta’s privacy commissioner is warning employers that vetting potential employees by using information found online may contravene Alberta’s privacy laws. You can view the very thoughtful and earnest advice provided here.

This is an interesting development but note that, out of the roughly 2 million employees in Alberta (tens of thousands of whom went through a hiring process last year), the privacy commission has one active complaint.

Now it could be that almost no employers google up potential applicants. But my sense is that this is a common practice. More likely, the lack of complaints reflects that potential employees are unlikely to know how their employer vetted them this way or that this may contravene their rights. And, as the vulnerable party in the employment relationship, are unlikely to complain even if they did know these two things.

We see a similar dynamic operating with Alberta’s child labour laws. Enforcement is complaint driven but the potential complainant (the child and the parents) basically don’t know their rights and don’t complaint, thus child labour is rampant (but hidden).

The privacy office has no real capacity to go out and proactively investigate instances of such violation. And they have no capacity to respond to any huge rush of complaints in a timely manner. The upshot is that Alberta employers can break this law with impunity.

This example is part of a broader problem with employment-related law in Alberta. The crux is that the government does not adequately resource (or politically support) effective enforcement of laws that constrain employer behaviour. This creates the veneer of state-protection but the reality is that these rights are hollow ones for workers with little labour market power (which is most of us).

-- Bob Barnetson

World justice Project Rule of Law Index

The World Justice Project has released its 2011 Rule of Law Index. This is a quantitative assessment of the degree to which countries adhere (in practice) to the rule of law.

Canada generally does well, but “discrimination against immigrants and the poor remains a source of concern” as well as “access to civil justice”. The latter issue appears to centre on the cost of legal representations and lengthy delays in civil cases.

Canada’s country profile makes for interesting reading. Areas of relative weakness include fundamental labour rights, equal treatment and absence of discrimination, access to legal counsel and the civil courts, and official information requested is available.

-- Bob Barnetson

Privacy and Safety in the Workplace

Two interesting newspaper articles have appeared this week.

The first is a privacy commissioner ruling regarding an email sent following an employee resignation. According to the article, " two managers sent out a memo that a "difficult" staffer quit to take a new job and that her new boss would need some luck to deal with her."

The commissioner ruled that this was a release of the employee's personal information without her consent. This ruling draws attention to how privacy laws are (or ought to!) alter human resource practices in the private sector.

The second is an in-depth investigation of how Alberta treats workplace deaths. In short, prosecution is rare, even for repeat offenders. There are a couple of interesting facts:

1. Alberta spends nearly five-times more money on insurance rebates to Alberta companies with government-endorsed safety certificates ($70 million in 2009) than it spends inspecting job sites and enforcing occupational safety laws ($15 million in 2009-10). These rebates are available to companies with worker fatalities--even those with multiple deaths.

2. Of those workers killed on the job since 2003, three-quarters occurred on worksites where inspectors identified safety violations. Only one-third of these cases were prosecuted to a verdict.

3. Several former OHS investigators express frustration with the lack of support for prosecutions.

Employment Minister Thomas Lukaszuk comments are important:

“If there are ideas and there are mechanisms that will make our workplace safer, I’m open to looking at it."

This is a common answer from Lukaszuk on OHS issues. While it seems reasonable enough at first glance, it places the responsibility for ensuring the laws are enforced on the shoulders of worker advocates (who must then often face opposition on committees from employer representatives).

Further, it glosses over the fact that the government modified the legislation eight years ago to allow on-the-spot fines and naming Alberta’s worst safety performers. The lack of action on implementing these provision is not about not having ideas or being restricted by the legislation. It reflects a lack of political will on the part of at least four successive Ministers to lower the boom on unsafe employers. The cost of this inaction is borne by workers and their families in the form of injuries and death.

-- Bob Barnetson

PS: Things will be quiet here the next month as I take a vacation.