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Introductory remarks by Co-Chairs
8:45 a.m. to 9:00 a.m.

Canadians are increasingly recognizing bullying, harassment and threats of violence as major problems in the workplace. Employers, employees and unions alike are uncertain of how to effectively address harassment and bullying in accordance with the collective agreement and various employment-related statutes, including labour relations, privacy, health and safety and human rights legislation. In this panel, expert practitioners and consultants will discuss strategies to prevent and contain workplace conflict. Topics include:

• Legislated and Collective Agreement Duties: What duties do the workplace parties have, with respect to bullying and harassment, under legislation and collective agreements?
• Preventing Workplace Harassment and Violence: What are the obligations of the workplace parties with respect to violence prevention in the workplace? What measures should anti-violence/harassment policies contain? What training must employers provide to employees to ensure they understand their rights and obligations under these policies?
• Responding to Incidents: What are best practices for the parties' response when harassment or workplace violence is suspected or has occurred? What solutions can be implemented to address the problems that workplace harassment and violence cause?
• Domestic Violence: When do domestic violence issues become workplace issues? Does the involvement of non-employees create unique challenges?

BREAK
10:15 a.m. to 10:45 a.m.

The use, both inside and outside of the workplace, of Facebook, e-mail, blogs, and Twitter raises a host of legal issues for employers and employees. What rights do employees have to access and safeguard electronic information generated about them in the workplace? What online activity can an employer prohibit? Our panel of experts will offer guidance on employers' and employees' rights and obligations in relation to the use and abuse of modern technologies in or relating to the workplace.

• Employees' Expectation of Privacy: Do employees have a reasonable expectation of privacy in relation to e-mail messages, text messages, and personal files, such as bank statements, stored on employer-owned computers or phones? Does it matter if the information is otherwise privileged? What if they are expected to carry devices such as Blackberries, cellphones or laptops? What electronic safeguards are employers required to provide for employee information?
• Protecting Against Misuse of Technology: What constitutes internet or e-mail abuse and when does it warrant discipline? What may employers do to discourage/prohibit non-authorized and non-work-related employee usage of internet and e-mail? What use can an employee make of an employer's electronic resources for the purpose of union activity?
• Electronic Monitoring: What information should be provided to employees concerning the scope of monitoring and surveillance? Is consent required? In what circumstances can an employer justify its use of surreptitious monitoring technology to assess the productivity of its employees? Can an employer record some, or all, of an employee's phone conversations? Do biometric scanning devices used to monitor access to the workplace and to implement timekeeping and payroll systems violate employee privacy?
• Off-Duty or Off-Site Activity: Can employees be disciplined for views expressed on Facebook, blogs and other internet sites that reflect adversely on the employer or other employees? Does it matter if the employee does not use work time or the employer's computers to make the internet postings? Are there circumstances in which employers can demand access to employees' personal technology, for example, Blackberries or home computers?
• Employee Access to Information about the Business or Co-workers: How has technology changed the access employees have to business information and personal information about co-workers? What standards have arbitrators placed on employees respecting the privacy of co-workers? Does an employer have a duty to an employee to disclose e-mails exchanged among co-workers that refer to that employee? How can an employer protect its electronically stored business information and trade secrets in the case of a departing employee?
• Electronic Background Checks: What are the human rights and privacy implications of employers conducting online searches as part of the background check of a potential employee during the recruitment process? Is information about a candidate posted on a publicly accessible blog or social networking webpage "personal information?" Can employees have removed information from search engines which they regard as embarrassing or otherwise prejudicial to their careers?

Evolving societal definitions of and shifting roles and responsibilities within the family are being reflected in current human rights cases relating to family status. What family obligations are protected by human rights legislation? Is the assessment of "undue hardship" different in an accommodation case involving family status? This panel will address these and the following issues:

Proving Family Status Discrimination – Two Competing Approaches: Campbell River and Hoyt:

• What are the two approaches? Which approach prevails in which jurisdictions and in which forums?
• What new approaches are emerging and how do these succeed in reaching a compromise between the two dominant streams?
• What do the competing approaches mean from a practical perspective when presenting a case where family status is an issue?
• What is "family status?" Are family obligations to take care of sick or disabled relatives covered? Who counts as "family?" To what extent will adjudicators scrutinize family arrangements and decide whether they represent parenting "choices" versus parenting "needs" and why does this distinction matter?

Accommodating Family Status:

• Are employers required to conduct an individual assessment of each employee's "family status" needs? Can an employer be relieved of a duty of individual assessment, for example, by providing employees with a specified maximum number of "family days" off work?
• Can the employer require an employee to make changes to his or her family obligations instead of accommodating the employee's circumstances?
• What kind of accommodation can be required by an employee? Leaves of absence? Modified work schedule? Particular shifts or hours?
• What will amount to undue hardship to the employer? Can the employer argue that the number of employees who may seek a similar accommodation amounts to undue hardship? When does an adverse impact on production constitute undue hardship?

The abolition of mandatory retirement across Canada, against the backdrop of economic uncertainty, raises a host of issues regarding the rights of and duties towards aging workers. Can employers suggest or allude to early retirement without attracting claims of discrimination based on age? Are age-based distinctions in pension plans discriminatory? Can employers in financial difficulty replace higher-paid older workers with lower-paid younger workers? This panel will address these and the following issues:

• Essential Duties: Employees are expected to perform the essential duties of their job. At what point are aging workers no longer fulfilling this term of their contract? What types of tasks are most likely to be adversely affected when performed by an older worker?
• Performance Standards: Are employers required to modify duties or to lower work performance standards to accommodate the aging worker? Can age be considered in ranking employees? Can an employer institute tests to assess whether the capacity of a worker has been affected by increasing age? If an employee's age-related limitations prevent him or her from working on a regular basis, can the employee's attendance record be considered in the assessment of the employee's work performance?
• Retirement Benefits: When can an employer decrease retirement benefits? Does an employee have a right to sue an employer for altering or terminating his or her retiree benefit plan? Are age-based reductions in benefits associated with retirement benefit plans discriminatory? Are age-based restrictions on the accrual of pensionable service discriminatory?
• Dispute Resolution: Are there differences in the manner in which issues of age-based discrimination are dealt with at the Tribunal compared with grievance arbitration? What is the appropriate venue for resolving disputes about post-retirement benefits? Can unions negotiate and grieve retirement benefit matters on behalf of retired bargaining unit members?

Prominent counsel review recent legislative changes and important decisions delivered in the past year by Canadian courts, federal and provincial labour boards and arbitrators. In particular, they discuss what trends can be discerned from recent case law and legislation dealing with critical issues in labour, human rights and privacy law. The selection of cases for this session takes place a few weeks before the conference, ensuring up-to-the-minute coverage of late-breaking decisions.