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Employers must use caution amid workplace power dynamics, experts say

TORONTO — NHL coach Mike Babcock thought he was just trying to get to know his players better, but experts say he may have crossed a line that's sometimes hard to see.
Mike Babcock addresses the media as the Columbus Blue Jackets introduce Babcock as their new head coach during a news conference on Saturday, July 1, 2023 in Columbus, Ohio. Babcock thought he was just trying to get to know his players better, but experts say he may have crossed a line that's sometimes hard to see. THE CANADIAN PRESS/AP-Kyle Robertson/The Columbus Dispatch via AP

TORONTO — NHL coach Mike Babcock thought he was just trying to get to know his players better, but experts say he may have crossed a line that's sometimes hard to see.

After joining the Columbus Blue Jackets, Babcock was called out this week for allegedly asking some players to show family photos off their phones — raising questions of privacy and misusing his position as a head coach.

Experts say it is important for senior-level employers to remember that positional power is a real thing.

"From a positional power perspective, because it is someone in a higher position asking you a question, you worry about your job security or how you're going to be treated at work," said Muneeza Sheikh, an employment lawyer with Levitt Sheikh LLP.

"You might be inclined to say, 'Sure, go ahead and look at my phone,' even though you're completely uncomfortable with it."

Sheikh said employees face a genuine dilemma when they find themselves responding to requests made by superiors in a way they normally wouldn't — perhaps for fear of being reprimanded.

Ex-NHLer Paul Bissonnette said on the "Spittin’ Chiclets" podcast he was told by an unidentified player that Babcock asked team members to share photos on their phones and would then stream them on his television.

The NHL Players' Association said on Thursday that its executive director and assistant executive director are in Columbus, Ohio, to investigate reports of Blue Jackets head coach Babcock invading players' privacy.

Sheikh said there's nothing inherently wrong with an employer saying something like, "I'd love to see some family photos or get a better read on what type of person you are."

But, she added, positional power plays a huge role in all conversations in the workplace, whether or not it's personal. 

Michael Walter of Walter Law Group said even if the employer's goal is to create a positive working environment, they need to make sure they don't venture into questions about personal lives or relationships.

"It's always a question of context," he said.

Walter said there is a delicate balance in human interactions between managers and workers. He said employers might feel they're being friendly and not realize they're making their subordinates uncomfortable.

"Employers have to be very careful and cautious to ensure what they're asking of their employees doesn't go beyond what is appropriate for the circumstances," he said.

"If an employee is not willing to share things about their personal lives, it is not really something that an employer should press about." 

When it comes to devices, employees still retain some level of privacy and may refuse to show content off their personal phones.

But Sheikh said employers have a right to monitor devices that are being used for both personal and professional needs by their employees.

"That doesn't fall into the zone of private photos even though you have a device owned by your employer," Sheikh said.

However, there aren't many provisions to sue an employee for invasion of privacy in many provinces of Canada.

"Privacy rights are not nearly as extensive as people assume," Stuart Rudner of Rudner Law said. 

He said there is no current legislation to prevent a boss from making a similar request for personal photos or phone access.

"First of all … they're scared to refuse," Rudner said of employees. "But if they do refuse, they might lose their job.

"In many cases, (employees) might be entitled to financial compensation, but they usually won't get their job back."

Rudner said employees don't have job security in Canada unless they're unionized.

From the company's point of view, he recommends keeping questions simple in day-to-day interactions.

Rudner said he tells his clients: "The less you know (about your employees), the better."

He said specific questions that could disclose someone's age, family status, religion, disability or sexual orientation would trigger human rights protection.

"You don't want to be aware of anything that could have an effect on human rights grounds."

But, he said, there's nothing unlawful about asking generally how an employee is doing. 

Rudner said remote work has also changed the dynamics of what is and is not appropriate to share in a professional environment.

"There has been a lot more blurring," he said. "Especially with Zoom or video calls, we often see people's pets and children and partners and even photos of them in the background.

"But you still can't discriminate against them on grounds that are protected by human rights legislation," he said.

This report by The Canadian Press was first published Sept. 15, 2023.

Ritika Dubey, The Canadian Press