Mutiny on the Borlack? Bay Street Workers Rebel Over Attack on Privacy

November 1, 2012 Update: there has been significant coverage on this story today, see: Toronto Star; Above The Law; Huffington Post; Canadian Lawyer Magazine; and Metro.

November 2, 2012 Update: if you're a lawyer at McCague Borlack you better watch how much you're drinking. Read this link and see the last two paragraphs for a veiled threat. Yikes!

It has been said that the flame of anger is hard to douse once lit. Yesterday I was alerted to a bizarre story involving Bay Street insurance litigation heavyweight McCague Borlack LLP. Essentially, the issue boils down to the firm's management imposing a fingerprinting system to track legal secretaries throughout the workday while they complete individual tasks; apparently, the firm's management has a concern regarding the productivity of their legal secretaries. Unsurprisingly the legal secretaries targeted by the decision aren't exactly enthralled with the decision and have started an online guerilla campaign to contest the demand that their fingerprints be required. This post is mainly going to focus on the privacy implications of this decision; furthermore, it should be noted that there are tort, gender discrimination, and human rights implications that David Doorey has expertly covered over at his blog.

The intersection of biometrics and privacy is a growing sub-field within the area of workplace law. Previously, the technology necessary to implement fingerprinting programs simply was too expensive for most firms to implement, but with progressive advances in technology the costs have been reduced. The surprising aspect in this case is that workplace monitoring technology for productivity purposes generally isn't deployed in white collar professions to track individual tasks, rather it has traditionally been the domain of the manufacturing and service sectors. McCague Borlack's decision seems to be a modern and extreme update on the time and motion studies of the early twentieth century.

Arguably, it appears that employers in Ontario have the ability to implement fingerprinting technology within the workplace, but just because an employer can do something doesn't mean that it should. The legality of this decision is dicey as it appears that the fingerprinting will target a group of employees who are predominately female and who occupy low-status positions. The fingerprinting policy appears to be a classic example of constructive discrimination where a supposed facially neutral policy disproportionately impacts a protected group under Ontario's Human Rights Code. The ability of the secretaries to contest management's decision is severely hampered by a lack of a Union to make collective representations to the employer or file a grievance over the necessity of fingerprinting employees. In this situation McCague Borlack's decision has caused a small internal insurrection, untold damage to the firm's reputation, and caused a divisive social media campaign to take root. 

I suspect a lot of people will question the competence of the firm's management given that this decision appears to be ill conceived; furthermore, it may be difficult to attract high-quality support staff going forward given that most people just don't like the idea of being fingerprinted everyday at work. Incredibly, McCague Borlack appears to be dealing with the concerns of their staff using heavy-handed tactics, for example: consider this posting advertising for seven legal assistant positions in Toronto - this is a thinly veiled threat to whoever is behind the "Finger Campaign".

I've culled some jurisprudence on biometric scanning, see: here, here, here, here, here, here, here, here, and here. Also, here are some documents discussing privacy and biometrics: Hicks Morley's All About Information blog posts on biometrics; Ontario's Information and Privacy Commissioner's report on privacy and biometrics; and, the Privacy Commissioner of Canada's research on biometrics. Finally, here's a talk by Ann Cavoukian discussing the concept of surveillance by design, see:

The School of Hard Knocks: Are Articling Students Entitled to the Minimum Wage?

I've been wanting to write this post for over a year now, but the necessary information to back up my assertions didn't exist in the public sphere. However, that changed yesterday when the Law Society of Upper Canada's Articling Task Force released their Final Report. This post is going to examine the exclusions under the Employment Standards Act, 2000 ("the ESA") and the regulation dealing with Exemptions, Special Rules and Establishment of Minimum Wage ("the regulations") that apply to articling students in Ontario. From the outset I'm going to state that this is not a legal opinion, if you're in a situation where any of the information below applies it would be best to obtain legal advice.

Background: What are the Current Problems?

By way of background here's the situation that currently exists in relation to Ontario's articling crisis. There's a massive glut of law graduates in Ontario due to Canadian students going to the U.K. and Australia for law school, the University of Ottawa and the University of Windsor vastly increased their admissions over the past decade, and foreign trained lawyers immigrating to Canada. Essentially, there aren't enough articling positions for the current number of law graduates, it's simple economics of the supply far outweighing the demand. As a result of these dynamics many law graduates are accepting unpaid articling positions to meet the requirement to become licensed - the main requirements being working for ten months, passing two exams, and completing an online professional skills course.

Very little has been written about the rise of unpaid articling positions in Ontario. No statistics are available and the people taking these positions aren't publicly speaking about their situations. Personally, I know of one person who took an unpaid articling position, but I've been told that these positions are increasingly common in today's labour market. In a footnote on page twenty-nine of the Articling Task Force's Final Report it's stated that "[u]npaid positions continue to be offered and, as students become more pressured to find a placement, accepted." This is a critical piece of information as previously there hasn't been any official acknowledgement of this growing problem.

The Law: Exclusionary Regulations for an Exclusionary Profession

Now the question becomes whether it is legal to not pay an articling student for their labour. The answer may surprise a lot of people, but my analysis suggests that articling students are excluded from key provisions of the ESA. The starting point of this analysis is subsection 2(1) of the regulations, it reads: "Part VII, VIII, IX, X, and XI of the Act do not apply to a person employed (a) as a duly qualified practitioner of...(ii) law". The other key point is subsection 2(1)(e) of the regulations which reads "as a student in training for an occupation mentioned in clause (a), (b), (c), or (d)". These two subsections combine to operationalize the exclusion targeting articling students in Ontario and possibly paralegal students, but arguably the exclusion targeting paralegal students is the far narrower one under subsection 3(5)(2) of the ESA. It should be noted that many other types of students training to be professionals are excluded under the regulations, such as: engineers, architects, accountants, surveyors, veterinarians, dentists, many medical professions, and teachers.

But what do parts VII, VIII, IX, X, and XI of the ESA deal with? Here's a brief overview: part VII deals with hours of work and eating periods; part VIII deals with overtime pay; part IX deals with minimum wage;  part X deals with public holidays; and, part XI deals with vacation with pay. These are critical parts of the ESA designed to ensure social minimums are adhered to. Essentially, articling students appear to be completely excluded from the foregoing parts and it appears that they would lack any form of recourse under the ESA if they wanted to contest conditions of employment in relation to the above noted parts. I wasn't able to find any case law directly speaking to articling students and this doesn't surprise me given the subject matter involved.

Analysis: Are These Exclusions Unfair?

These exclusions are deeply troubling given the social location and social context of articling students. At the core articling positions are ten to twelve month temporary employment contracts and some positions could easily be characterized as forms of precarious employment. Articling students are frequently the lowest in the organization's power structure which leaves them susceptible to: power imbalances, various forms of harassment, being forced to sixty plus hour weeks, mental health issues, substance abuse, and economic vulnerability. Articling students are generally young post-secondary graduates who haven't had a lot of employment experience prior to starting their positions and frequently have difficulty setting boundaries between their work and personal lives.

While at the time of inception these exclusions were most likely Charter proof given that the argument that articling students were entering an elite profession and didn't require a high degree of statutory protection. Historically, no doubt this was true, but with the changes in the economy and the labour market over the past thirty years I would argue that the above noted exclusions are now susceptible to a Charter challenge under section 15 given the disparate impact these exclusions have on the basis of age (also I suspect there might be an argument available based on an intersectional analysis rooted in gender, race, ethnic or national origin, and disability).

Overall, this is a topic that needs a lot more debate. The idea that articling students are working unpaid for profitable law firms and government agencies is ridiculous. This is part of a wider trend in society to devalue the labour of young workers and I don't feel it's a morally defensible position. At the core these types of positions are inherently unfair and privilege students from wealthy backgrounds at the expense of students who cannot engage in unpaid work - there are profound equality issues simmering beneath the surface about who gets to practice law and who gets denied. Students with massive law school debt simply aren't able to engage in unpaid work to obtain a license to practice law. At a time when a huge unmet need exists vis-a-vis legal services these sort of practices amounts to anti-competitive behavior and should be stopped through legislative means that enacts a licensing system fair to all law graduates.

Where to Turn for Help?

If you're reading this as an articling student in a conflict with your employer there are a number of places that you can turn to for assistance: the Ontario Lawyers' Assistance Program offers confidential support and counselling; the Law Society of Upper Canada funds an independent Discrimination and Harassment Counsel that offers confidential advice on human rights issues; and, the Human Rights Legal Support Centre offers legal advice for people who are experiencing breaches of their human rights in the workplace. Also, if you're an articling student working in an unpaid position please drop me an email as I'd love what's happening out there - anonymity is guaranteed. I've written about the situation facing recent law graduates in Ontario, see: here, here, and here. Finally, take a look at this video of New York Times reporter David Segal discussing the law school scam, see:

Minority Report: Kicking The Can Down The Road

A very brief post. The Law Society of Upper Canada's Articling Task Force has released their final report with a majority and minority opinion (starting at page seventy). Essentially, the majority of the members of the Articling Task Force are recommending that a five year pilot project be launched that allows for law graduates to take an alternative route to being licensed as lawyers - this option would be comprised of a four month practical skills component and a four month co-op placement. The minority opinion would abolish articling and allow lawyers to practice after a three month licensing program. I'll be posting a more comprehensive analysis once the Convocation make a (non) decision on what to do regarding articling reform; additionally, I also want to point out that I predicted all of this occurring a month ago in a post about the problems at the University of Ottawa's Faculty of Law. 

Snow Job: B.C. Government's Controversial Youth Jobs Campaign Implodes

Just a brief post about a recent example of the virulent anti-youth mentality that's pervasive among the political class in Canada. British Columbia's Ministry of Jobs, Tourism, and Skills Training teamed up with Toronto advertising juggernaut Cossette to produce a media campaign targeting young unemployed workers in B.C., an example of the ads is shown above. Needless to say the campaign itself has now become a news story as the young people across Canada are heaping scorn on this ill-advised, offensive, and frankly deeply out of touch with the youth of today (also sexist as one ad plays off the idea that women want to marry rich husbands). I actually tweeted about these ads a few weeks back when my cousin posted one of them on Facebook.

Christy Clark and Pat Bell

Gwen O'Mahony, the B.C. NDP's skills training critic stated yesterday that "[Youth] get the ads are trying to use humour but it seems they're not connecting with the audience." With B.C. Premier Christy Clark refusing to take concrete steps to lessen youth unemployment in the province it defies incredulity that $604,000.00 would be spent to mock unemployed youth as what this essentially amounts to is a rude slap in the face. This probably isn't the wisest move by Premier Clark who is plummeting in the polls and headed for defeat in next  year's provincial election.

Cossette's Andrew Bergstrom

This advertising campaign fits neatly into an overarching narrative of strategic abandonment of youth by government in Canada (and in all advanced economies). Premier Clark's neoliberal ideology severely limits what she can offer up in the way of substantive policy to assist youth who are facing record debt levels, years of precarious employment in insecure jobs, and the increasing inability to maintain their standards of living. This is simply another sad footnote in the politics of disposability and amid the creation of a permanent underclass in Canada in which youth are controlled by debt, the inability to access secure jobs, and retrenchment of the social welfare state - all developments that are troubling and which need to be vigorously contested.

Read about what the response to these ads have been has been: here, here, and here. Finally, if you feel inspired give the two boomers responsible for the advertising campaign a call: Cossette's Managing Director Andrew Bergstrom at (416) 922-2727 and B.C.'s Minister of Jobs, Tourism, and Skills Training Pat Bell at (250) 356-2771. Young people need to let governments know that half-measures cooked up by advertising executives do little to stem a youth unemployment rate that's hovering at 14.7%. Finally, here's an oldie, but a goodie with little ole' me giving some context to youth unemployment in Canada, see:

The Sewing Internship: Apparently Sweatshops Are Alive and Well in Toronto

I generally don't do two postings per day, but in this case I'll make an exception. I got this extremely precious email which details what amounts to essentially sweatshop labour in response to an email I sent to an anonymous Craigslist advertisement looking for sewing interns. Kudos to Vanessa Marino at Blackbird for attempting to revive the spirit of slavery. The full text of the email appears below:

Hey Andy!

Thanks for answering our ad. My company is called Blackbird http://www.iheartblackbird.com/
We are a jewellery company, however we make a line of exclusive yoga mat bags for a popular Yoga studio in Toronto.
Here is an example of the bags

http://www.889yoga.com/img/boutique/beginneryogakit.jpg

The order is for 16-20 bags. The job would probably start in the next 1-2 weeks and duration would depend on your availability. 

Sewing usually takes 1hr /bag
Please note that this is an unpaid internship position. We can offer you reference letters and product in return for your help.

If you are interested please send me a resume or even just an email about yourself and what you would like to get out of this internship.

Please include the following in your response.

Do you have sewing experience? If so what kind?
Do you have experience sewing bags?
Are you in fashion/design school?
Do you have a sewing machine?
Do you have a space to work from?

Hope to hear from you soon!

-- 
Vanessa Marino 
Co-owner & Designer 
BLACKBIRD 
www.iheartblackbird.com 
www.facebook.com/iheartblackbird 
twitter/instagram @iheartblackbird

Scaling Asshole Mountain (And Other Adventures In Nerdistan)

I like to think that this website channels the street fighting spirit of Rowdy Rathore and the sly social commentary of Psy to address uncomfortable and challenging realities that presently exist in Canada's youth labour market. In this vein I often call out companies that use illegal unpaid internships via social media (on this point, check out the poignant musings of @depressedgrad). Rarely do companies respond to these interventions, but in the past I've gotten into debates (oddly enough) with the editors of This Magazine and Rabble.ca over their hypocritical stances on exploiting the labour of unpaid interns. 

Fast forward to last week when I got into a dust-up on Twitter with Ryan Creighton, a veteran of Toronto's video game industry, after I called him out on his practice of using unpaid internships at Untold Entertainment. He responded by writing a blog post which I highly encourage people to read as it's central to the comments I make below and a fascinating window into how employers justify using unpaid internships. 

What strikes me about Mr. Creighton's troubling blog post is the pure arrogance that it betrays through a hysterical defence of exploiting young workers for free labour all the while portraying himself as a victim and a helpless employer. Rather than owning his actions he pushes back in a sarcastic manner that exposes some interesting points. Let us run through a couple points below.

First, Mr. Creighton has established a pipeline of free labour from Ontario colleges which send him numerous students. This is a completely legal, although problematic, practice as subsection 3(5)(2) of the Employment Standards Act, 2000 ("the ESA") completely excludes post-secondary students from protection if they are completing requirements of their academic programs. 

Many companies would be happy with simply an endless supply of free student labour, but not Mr. Creighton as he appears to be against the idea of having to pay the minimum wage to his non-student interns. He offers a detailed explanation of how he has concocted various schemes aimed at avoiding compliance with the ESA when using non-student interns, stating: "i [sic] do usually ask them them to sign something, although i'm [sic] well aware that you can't contract yourself out of your rights. The signed agreement is to document how we entered into the arrangement - as trainer to trainee, as employer to non-employee, as volunteer in exchange for coaching." All this being a probable example of employee misclassification as Mr. Creighton has these "interns" performing work coding gaming websites and working on developing computer games which is most likely a breach of the third prong of the test enumerated under subsection 1(2) of the ESA - remember that Mr. Creighton is running a for-profit company, not a school or training facility.

Second, Mr. Creighton offers some interesting advice to companies who might be the target of an investigation by providing a couple of examples - his second one is telling, he states: "2. A jilted ex-intern files a claim with the Ministry demanding back pay. If you treat your people well, and if those people don't want to get themselves blacklisted in the industry they're trying so desperately to break into, the second case likely won't crop up." What Mr. Creighton refers to with blacklisting is the ability of an employer to exact an extraordinarily punitive form of revenge if, God forbid, a misclassified employee tries to enforce their rights under the ESA. 

Employer blacklisting is an excellent example of the extreme vulnerability that unpaid interns experience as precarious workers. The marginalized social location of interns as precariously employed recent labour market entrants doesn't generally allow them to contest the conditions of employment given that they would likely be foregoing letters of reference, future employment opportunities, and access to networking if they challenge their employer. This is a well-documented phenomenon that was prominently displayed in the Diana Wang lawsuit against Hearst Corporation. To date interns who fight back often times literally forego any chance of working in their chosen industry, this point serves as a partial explanation as why these sorts of lawsuits have been rare until recently.

The point of all of the foregoing is not to demonize Mr. Creighton (trust me it's difficult typing with kid gloves on), rather it's to show how exploitation, wage theft, and misclassification of young workers are routine day-to-day practices that employers feel they have a divine right to engage in. Employment standards were created with the goals of universality, fairness, and the creation of social minimums.  We've reached the point in the labour market where unpaid interns being effectively excluded from the benefits of any of these goals. 

In subverting established social minimums, employers are eroding the wider labour market - it's not just the intern who foregoes wages, but also a stealth attack on paid employment, secure jobs, and the floor of rights that's created through employment standards. In Ontario with the youth unemployment rate is hovering at 17.7% and the R8 rate for youth at 24.3% there are deep structural problems afoot in the youth labour market that sorely require intervention by junior and senior governments in Canada. What that intervention might look like will be the focus of a post in the near future...until then.

Prevailing Conditions, Necessary Choices? Michael Mac Neil on Two-Tiered Wages

I recently interviewed Michael Mac Neil, a Carleton University law professor, on the topic of two-tiered entitlement schemes (also known as orphan clauses). He graciously answered my questions about the difficult questions that arise from the use of these measures in relation to intergenerational equity, equality rights, and representation of minority groups in unions. Briefly, two-tiered entitlements are differential wage scale predicated on the date of hire which often discriminate against young people. Both the Canadian Auto Workers and  the Canadian Union of Public Employees have recently negotiated collective agreements in Ontario that contain different types two-tiered entitlements. 

There's a dearth of academic research into this topic, but Marie-Josée Legault of UQAM has written a paper on the topic called "Too Bad, You Were Late In Coming In!", Christian Brunelle of the Université Laval has a chapter in the book New Perspectives on the Public-Private Divide, and recently Sam Gindin wrote an op-ed in the Toronto Star attacking the culture of concessions prevalent in labour organizations in Canada. The interview appears below, see:

Michael Mac Neil

Q: Can you give my readers a brief explanation of what orphan clauses or two tiered entitlement schemes are?

A: Two tier entitlement schemes, often referred to as orphan clauses in Quebec, are arrangements whereby workers hired after a specified date are paid lower wages and benefits than those workers doing the same job who had been hired before that date.  They are sometimes sought by employers in collective bargaining as a means of limiting or reducing its compensation costs or as a means of transitioning to a new (and from the employer’s perspective, cheaper) pension plan.  These schemes differ from seniority arrangements in that the newer hires are placed on a different wage/benefit ladder than those who were hired earlier.  The schemes may be temporary, so that eventually the newer hires catch up to the salary grid of the older workers, or they may be permanent, with no catch-up possible. Given that newer hires are, on average, likely to be younger, they create a concern about inequity and discrimination against younger workers on the basis of age.

Q: Two-tiered entitlement schemes originated in the United States in the 1980s, when did they become a feature of the Canadian industrial relations landscape?

A: Two-tiered schemes have been used sporadically in Canada since the 1980s, following the U.S. lead.  They became more extensively used in Quebec in the 1990s, in response to public sector funding restraints.  However, there appears to be a significant increase in resort to such arrangements in the past five years or so, across a range of employment sectors including auto manufacturing, airlines, mining, steel manufacturing and retailing. 

Q: We're seen forms of two-tiered entitlement schemes feature prominently in recent collective agreements negotiated by the Canada Union of Public Employees and the Canadian Auto Workers. What's driving the apparent rise of these schemes in the current industrial relations landscape in Ontario?

A: There are a number of factors leading to increased resort to two-tiered entitlement schemes in recent Canadian collective bargaining.  The economic recession of 2009 has caused many employers to seek concessions from their workers, and these concessions often take the form of two-tiered arrangements because they provide a means of protecting the wages and benefits of current workers, while reducing the employer compensation costs in the short to medium term, especially if there is new hiring taking place.  As well, the turn of U.S based employers, such as the Big Three auto manufacturers, to two-tiered entitlements has led to significant pressure being placed on Canadian employers in the same industry to also consider their implementation.  Another major factor is the significant costs that employers with defined benefit pension plans are facing as a result of low interest rates and poor performance of equity markets. Employers are looking for a long term solution by moving away from defined benefits plans and one way of doing this is by creating a new defined contribution plan which calls on newly hired workers to pay a higher proportion of their salaries to support the plan and which transfers the risk of poor pension plan returns to those employees.

Q: Two tiered entitlement schemes aren't explicitly banned under Ontario's Labour Relations Act or the Employment Standards Act, 2000, but under Quebec's workplace law some aspects of two tiered entitlements are prohibited. Can you explain how the provisions banning two tiered entitlements work in Quebec? Why did Quebec take the route of prohibiting two-tiered entitlement schemes?

A: In 1999 Quebec’ employment standards legislation introduced specific provisions limiting the use of two-tiered compensation schemes.  It did so partly in response to concerns that such schemes were significantly detrimental for younger workers, and at a time in which a significant number of public sector employers, in particular, were turning to two-tiered provisions as a means of coping with funding shortages. The legislation also recognized the difficulty in framing claims under the human rights statute. The Quebec legislation prohibits the use of permanent two-tier schemes, but still permits the use of temporary schemes.  An employee can bring the claim to the employment standards commission, without needing to make a claim to the human rights commission or to exhaust all dispute resolution avenues under the collective agreement. The complainant does not have to demonstrate age-based discrimination, only that there is differential treatment based on the date of hire.  The difficulties of showing that the date of hiring is the “sole” cause of the differential treatment, and the exemption of temporary two-tiered arrangements from the prohibition significantly limit the impact of the legislation.

Q: Is Quebec approach to prohibiting two-tiered entitlements a model that could be adopted in Ontario and other jurisdictions in Canada?

A: The Quebec model is certainly one that is worth considering in Ontario and elsewhere in Canada.  The concern about two-tiered arrangements is that they create situations where two groups of workers are doing the same job but are paid unequally.  Legislation prohibiting unequal pay for equal work or legislation promoting pay equity is normally limited to differentials based on sex, not differentials based on age.  While it might be possible to successfully bring a claim under a human rights code for age-based discrimination, it is likely to be expensive, time consuming, and fraught with risk in terms of being able to demonstrate, through statistical evidence, the discriminatory impact of such provisions.  An employment standards approach offers a more direct and possibly more accessible means of challenging the inequities arising from two-tiered arrangements, although the devil would be in the details, as demonstrated by the limitations built into the Quebec legislation referred to in the response to the previous question.

Q: Some commentators have argued that these types of provisions strike at the heart of intergenerational equity and equality. Are two-tiered entitlement scheme possibly a violation of section 15 of the Charter? Might they be saved by section 1 of the Charter?

A: There is no doubt that these types of arrangements do raise significant questions about inequities in the treatment of younger workers. Since many of the arrangements result from collective bargaining or the imposition of new terms by employers, the Charter may be of limited applicability.  This would be especially so where the employer is in the private sector.  It might be possible to challenge such arrangements against a public sector employer, but there would be significant barriers to such a challenge.  The Supreme Court has displayed some considerable reluctance to characterize as discriminatory legislative schemes using age as a determinant for differential benefits in welfare and pension schemes.  Yet, it might be possible to argue that two-tiered schemes are more problematic from discrimination perspective because you have two groups of workers doing the same job but being treated differently.  Even if one succeeds in an argument that such schemes are discriminatory, there are a range of arguments that might be employed to support the view that such arrangements are saved by section 1 of the Charter, including respecting collective bargaining and the necessity of such economic arrangements as a means of responding to economic conditions.

Finally, check out this video of about two-tiered entitlements and the impact on young workers, see: