Employer

Fraud Facts

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fraud alert red grunge square stamp on white
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The management of Human Resources requires the HR practitioner to balance somewhat conflicting responsibilities. We must provide services that enhance effective, positive, pro-active employee engagement and, at the same time, ensure that all employees are compliant with organizational rules, standards and legislative requirements. Unfortunately the compliance requirements usually tip the scales into a negative perception of the Human Resources role and, sometimes, create an echoing negative response on the part of the HR practitioner.

Why? The Human Resources function often exposes the ugly side of human behaviour. We deal with people who are not at their best when they, as employees, engage in activities such as fraud or theft within the workplace. This behaviour seems particularly problematic when linked to workers’ compensation systems and the numerous parties accessing the benefits that these systems provide. Sometimes it is easy to fall into the trap of suspicion and cynicism if we start to perceive that all employees are not at their best.

Fraudulent behaviour does happen and is perpetrated by some individuals. Occupational Health and Safety lawyer, Norm Keith, explores some of the specifics related to fraudulent workers’ compensation systems behaviours on the part of some employees, some employers and some third party medical practitioners.

Click here to read the article.

Mr. Keith advocates for the development of a whistleblower reward program that would support and compensate individuals who come forward to report on those who are stealing from workers’ compensation systems. This is an interesting concept as it would allow for an increased responsibility for sharing ethical and legally compliant behaviours among all participants in a compensation system.

In the meantime this reporting responsibility continues to fall on the role of the Human Resources practitioner. We are the ones, especially if the health and safety function falls within our scope of duties, who must report and deal with the consequence of unethical and potentially fraudulent workplace behaviour. These are moral, ethical and legal obligations that deserve to be upheld in all workplaces.

At the same time we must remember that this type of behaviour is not the norm for the average employee, employer or medical practitioner. As such, we must continue to find the delicate balance within ourselves and in support of our professional roles.

Discussion Questions:

  1. Identify three ways an employee, an employer and a medical practitioner could engage in fraudulent activities through a workers’ compensation system.
  2. Defrauding a workers’ compensation system is not a ‘victimless crime.’ Who is impacted by workers’ compensation fraud?
  3. As a Human Resources professional, what steps will you take when an employee comes forward with an allegation of workers’ compensation fraud by a co-worker?

When does no mean no?

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Marijuana and a gavel together for many legal concepts on the drug.
Matt Benoit/Shutterstock

Most Canadians are aware of the potential for the complete legalization of the marijuana industry. Medical marijuana is already trading as a commodity in Canadian provinces. It is a significant growth industry with the potential for continuing profits and productivity. With the development of this particular industry comes the development of employment related opportunities and conflicts.

A recent case involving an application for certification by the United Food and Commercial Workers (UFCW) union for employees of MedReleaf provides us with an example of the complexities involved in determining whether or not a workforce can unionize in the context of a particular industry. MedReleaf is a licensed medical marijuana producer located in Ontario.

Click here to read a summary of case facts.

As noted in this summary, the UFCW filed for an application to certify the workers of MedReleaf under both federal and provincial jurisdictions. MedReleaf, as the employer, responded to this application by stating that it is part of the agricultural service industry and, therefore, outside of the jurisdiction of both the Labour Relations Act and federal labour legislation. Despite this argument, the Ontario Labour Relations Board (OLRB) ordered a vote by the employees of MedReleaf to determine whether or not they (the employees) wanted to certify and have a union represent their interests.

The employees did not vote yes. They voted against having UFCW as their union and against certification. As a result, the UFCW filed for ‘remedial certification’ citing unfair labour practices. If the union was successful proving that unfair labour practices did indeed take place during the employee certification process, the employees of MedReleaf would automatically become unionized, even though they did not vote for union certification. According to the facts of this case, the second application was dismissed based on the OLRB determining it could not make a decision because the matters were outside its jurisdiction. It seems to be confirmed, as a result, that the employees of MedReleaf are subject to the Agricultural Employees Protection Act, 2002 (AEPA) and, as agricultural workers, would not be able to form or join a union.

This case raises very interesting and complex questions. Why was the employee vote not considered satisfactory from the perspective of the UFCW? The allegation of an unfair labour practice during a certification drive is very serious. If it is found to be true, the employees will be certified by the OLRB, even if the majority of the employees voted against joining a union.

On the other hand, why would the OLRB order a vote in the first place and then, much later, determine that neither the provincial Labour Relations Act (which governs the OLRB) nor the federal jurisdiction applies in this case? Without more detail and information from each of the parties involved in this dispute, it seems that these questions will remain unanswered.

What this situation does provide is an insight into the perseverance of both the employer and the union in determining the rightness of their particular positions. The issues may be related to workplace rights and representation. There is no doubt, however, that the issues are also linked to the profitability of this particular product.

After all, the stakes are high for everyone.

Discussion Questions:

  1. On what grounds do you think the Ontario Labour Board based its decision when considering the Agricultural Employees Protection Act,2002 (AEPA)?
  2. Why do you think the United Food and Commercial Workers union filed a federal and provincial application simultaneously?
  3. Why do you think the OLRB ordered a vote for MedReleaf employees in this case?
  4. If you were representing the union in this case, on what grounds would you file an appeal?

Words, words, words….

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Dictionary page - definition of language
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Picture a common scene taking place in a unionized workplace in Canada.  In this scene, we see the organization’s HR Practitioner trying to figure out what, exactly, certain phrases within a Collective Agreement mean.  When the HR Practitioner asks the union representative for clarification of the item, she receives one perspective.  When she asks a supervisor for clarification on the same item, she receives a completely different response.

Then, we see the HR Practitioner with a bit of a headache trying to make sense of it all as the following questions appear in front of her:

  • How can one simple sentence mean two totally different things?
  • Why don’t Collective Agreements use clear and unequivocal language that makes sense to everyone who is bound by its meaning?
  • Who writes these agreements anyway?

This is the good, the bad, and the ugly reality of Collective Agreement language and administration.  Living with the management of a Collective Agreement means that the language can and will be interpreted in two (or more) completely different ways, depending on the situational point of view.

We see this in a recent decision by a Federal tribunal.  In this case, the tribunal upheld a grievance for an employee in one fact-based situation but dismissed a similar grievance for a second employee in a different fact-based situation.  Both employees had filed grievances regarding the same language provisions within their respective Collective Agreement.  Both employees were penalized for coming in late to work due to circumstances, allegedly, outside of their control.

Click here to Read the Article.

A few things come to mind as a result of this case.

First, from the Tribunal’s perspective, the way language was interpreted and applied brought the element of reasonableness into consideration, for both the employer and the employee in each circumstance.

Second, the ability of the employee to control their individual environments and make their own decisions was also a significant consideration in each case.

Most importantly, we must consider the fact that the language in most Collective Agreements is written through a process of negotiation, where every word comes at a price.  The words themselves may be used as a bargaining chip to achieve something else during the collective bargaining process.  All too often, the language that gets written into a Collective Agreement is produced in the middle of the night by union and employer representatives who are both exhausted and focused on reaching a settlement.  Wordsmithing to get certain phrases just right is not something that the parties want to do when the deal is close to being done.

As a result, the implementation  and management of the Collective Agreement takes on interesting twists as it gets brought to life by all of the parties involved.

When the curtain falls on this workplace drama, we see the HR practitioner taking the time to consider multiple elements as she proceeds with the task of interpreting the Collective Agreement, in a fair and reasonable manner.

End scene.

Discussion Questions:

  1. Which employee grievance do you agree with the most? Why?
  2. As an HR practitioner, what will you do to ensure a consistent approach to the application of language in a Collective Agreement that is fair to everyone?
  3. How would you re-write the Collective Agreement language used in the article so that it would have less chance for misinterpretation from an employer perspective?

Legislative Change

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Balance made of people
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We are lucky, as Canadians, that we live in a society that tries to provide emergency and crisis support when we need it.  We are also very lucky that these services are provided by skilled and qualified professionals who take on the role of First-Responder when emergencies and crises happen.  First-Responders are usually fire fighters, paramedics, and police officers, among others, who take care of us when we need them the most.  On the other hand, who is taking care of First-Responders when the level of crises become insurmountable for those who provide emergency services to us?

There has been a visible and pro-active push through social media and general media campaigns to promote and discuss the impact of on-going crisis response as experienced by First-Responders in the form of Post-Traumatic Stress Disorder (PTSD).  While the level of awareness about the impact of PTSD on First-Responders is increasing, so too has the need to have an increase in the formal recognition of PTSD as a ‘legitimate’ work-related illness in Ontario.  To date, First- Responders impacted by PTSD have not been able to access intervention and support through traditional worker’s compensation and benefits due to the stigma associated with PTSD as a mental illness and the lack of recognition that their PTSD stems directly from the workplace.

The issue of PTSD may affect thousands of workers from different unions.  This has provided an opportunity for several unions to come together and push for much needed legislative change in the province of Ontario.

Click Here to Read the Article

The power and positive impact of the collective voice is clear.  On April 6, 2016, “Bill 163 Supporting Ontario’s First Responders Act (Posttraumatic Stress Disorder) 2016,” received Royal Assent.

Click Here to Read the Bill 

Though the path to make legislative changes may be difficult, it is so important to ensure that successful change is possible and that the end-result truly provides a benefit to everyone.

Discussion Questions:

  1. Why does PTSD need to be recognized as a work-related illness through Bill 163?
  2. Outline the steps that are required for an issue to move through a legislative process and to become law.
  3. What types of programs can an employer put into place to provide resources and support for workers who may be impacted by PTSD?

Social Media Savvy

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Trying to pretend that employers do not use social media sites to ‘check out’ potential candidates is a bit like trying to push the squeezed out toothpaste back into the tube – It is pretty much impossible at this point in time!

Tube of Toothpaste
Source: Leah-Anne Thompson/Shutterstock

We live in a social media construct that is continuing to develop.  It is definitely time that we become more diligent in shaping how HR Professionals should be using social media effectively for purposes of employment and applicant screening.

Lyndsay Wasser, co-chair of the privacy group at McMillan LLP, provides a well-balanced approach to the benefits and risks of using social media in this context.

Click Here to View the Clip

Ms. Wasser certainly identifies the risks related to using social media searches, if they are not done properly.  If we are snooping around on social media sites, without explicit candidate knowledge or consent, this could be extremely problematic from a privacy and/or possible discrimination perspective.  More practically, if we do not have consent to access information gained through social media, we cannot use it anyway.  So, why bother snooping?

If we are going to be using social media for employment screening, let’s use honesty, professional judgement, and be transparent about it.  As Ms. Wasser points out, there are definite benefits to be gained through employer driven social media searches, such as assessing potential candidates for insight into their good judgement, professionalism, and whether or not there is any misrepresentation on the part of the candidate that might be revealed through their social media profiles.

It seems only fair that this type of assessment should apply to conscientious employers as well.

Discussion Questions:

  1. As an HR professional, how will you inform potential candidates that their social media profiles may be used for purposes of assessment during the applicant screening process?
  2. What types of social media sites do you think are inappropriate for an employer to access?
  3. Do you think there is a benefit for including social media scans for purposes of employment screening for all candidates? Why or why not?
  4. What types of social media sites do you use to assess potential employers in your own career or job search?