It used to be that terminated employees were offered the dignity of a parting meeting, the so-called exit interview. That was the time to return any property belonging to the employer and a humane opportunity to collect their own property before departing the workplace. That can still be the case, but today – especially in cases where the worker was suddenly fired and where the pandemic has loosened the connection between corporate office and home office – there will be few in-person exit interviews. When Canadian workers are abruptly fired on the job today, they are promptly escorted out under guard or, if already offsite, they are denied re-entry to corporate premises and their digital and physical property.
Out of distrust and anger, and a desire for speedy closure, the employer will often lock up the terminated employee’s property, sometimes even before communicating the termination to the worker. One may have to plead for the return of one’s tangible personal effects left at one’s workspace. With most records, lists, databases, emails and other files being stored on corporate servers and in the cloud, employers pre-emptively lock up the digital property to put it out of reach of vindictive fired employees. Apart from retrieving physical items, employees will be even more challenged to recover their own digital property from the employer.
To be fair, the copyright and ownership in most of what employees generate on the job for their employer belong to that employer. Conspicuous exceptions are faculty members in Canadian post-secondary academic institutions. Their Collective Agreements invariably stipulate that the property in their intellectual outputs remain with the faculty member. Fired faculty members can hope and beg for their property to be expeditiously returned to them. But they will remain subject to the goodwill, insolence and lingering hostility of their former academic employer. The return of the scholar’s property may even be leveraged to hasten settlement and extract a release of liability. Other times, the failure to return property will be less malevolent, due instead to inattention and indifference.
Consider the plight of a theoretical long-serving professor (let’s call her “Olivia”). She was fired while enjoying summer vacation. Olivia immediately lost card access to her office and all of her intellectual work product spanning the decades’ length of her academic career. She was locked out of all her life’s work. This included her work files, teaching slides, correspondence, recorded lectures, exam questions and answers, research data, email records and so on. Under her Collective Agreement, this was all her personal property. It did not belong to her former employer any more than did her cell phone left on her desk, her coat on the hook or her car in the parking lot.
Her university employer had required that she store her academic life on its secure servers. She was assured that the double factor authentication layer of security was for her protection from external threats. She had no reason to suspect that her own employer would be the menace seizing her digital assets.
Olivia had no access to anything from her long academic career that was ended instantly and unexpectedly by her employer. She did not even have her curriculum vitae to apply for new jobs. People continued to send emails and voicemails to her work account, but she could not know about them nor obtain them. Her persistent pleading to her former bosses was ignored. They cruelly kept the email and voicemail accounts open to everyone but Olivia. Her employer continued to strangle Olivia’s career and professional life. Worse, knowing how vital this property was to her, the university disgracefully tried to link the return of her digital property to settlement of her incipient grievance. Her property and future as an academic were snatched by her former university employer and held as ransom like a valuable hostage to get what the university wanted.
The university relented five months later. It finally returned Olivia’s digital property. She learned then that she had been invited in the interim to job interviews, conferences, projects and other career opportunities – but due to the indifference or mischief of her former university employer, she had missed them all. Damage done.
Ownership of Property
Most digital property generated at work on company equipment and stored on servers belongs to the employer, but not all. Each employment relationship is governed by a combination of legislation and specific contractual rules, including Collective Agreements and individual contracts.
The ownership of chattels is usually clear. Many professionals and creative workers, like scholars, retain legal ownership of the work they are paid to produce. Digital property is intangible and easy for employers to retain. The university that would never confiscate Olivia’s car left on the parking lot in a fenced enclosure still imagined it could readily and with impunity confiscate her digital life’s work.
Terminated Employees at Major Disadvantage
Employers may be tempted to exploit their “possession is nine tenths of the law” power to withhold property from its owner. This illegal and immoral conduct today goes unpunished. It fortifies the academic institution with a clear strategic advantage in the employment dispute it has set in motion. The academic employer can continue to visit suffering and other mischief on terminated employees to extract greater vengeance beyond the termination. They can sideline scholars. In Olivia’s case, her former university directed her to obtain her files from government freedom of information officials who do not serve this purpose.
Apart from begging, former employees may be forced to hire a lawyer to bring a lawsuit or try to persuade a union (only if it agrees) to escalate a grievance. Formal legal processes can take many months, and still may be appealed. None of these recourses is fast, inexpensive or effective. It is essential that scholars recover their digital property quickly.
Employment Standards Law
Employment standards legislation in every Canadian jurisdiction guarantees workers minimum job protections such as how earnings are paid, hiring children, hours of work, shifts, overtime, holidays and vacation, a variety of leaves and even minimum notice of termination where there is no cause to fire a worker. Offences and sanctions back up these regulations. A squad of government enforcement officials enforce the standards quickly and effectively on a complaint-made basis.
The Alberta Employment Standards Code also applies in unionized workplaces [section 2(1)]. Yet unions may secure more enhanced protections in Collective Agreements. However, Collective Agreements, like individual employment contracts and employment standards statutes, do not require the return of terminated employees’ property. A version of the draft clause below, accordingly, is recommended for incorporation into legislation, employment contracts and Collective Agreements.
Suggested Legislative Reform
The following amendment to employment standards legislation in the subsection on termination rights (section 61.2 in Alberta) should be inserted in every Canadian jurisdiction:
61.2 When an employee has been terminated for any reason, and when any term of employment or independent contract for services has ended, the employer or payor, as the case may be, must forthwith within 24 hours of the termination taking effect, unconditionally return all personal and digital property of the employee or contractor whose employment or services have been terminated.
Pursuant to sections 129 through 132 of the current Alberta legislation, “any person who contravenes or fails to comply with” this requirement is subject to a fine up to $50,000 (individual offender) and $100,000 (corporate offender). The regulator may also take other enforcement action.
Canadian legislatures have frequently amended their Employment Standards Codes to accommodate for the pandemic, from layoff notices and recall provisions to granting workers three hours paid leave to get vaccinated against COVID-19. The Alberta legislature enacted this last amendment in thirty minutes the day after the idea surfaced.
Canadian legislatures should adopt the foregoing amendment to protect people like Olivia from unscrupulous employers who would continue to harm their former workers by withholding their personal property from them after employment or contractor services have ended. This is within the scope of employment standards legislation, which is to protect vulnerable workers at the hands of powerful institutions. Employers have the right to terminate one’s employment, but they do not also have the right to terminate one’s subsequent career or livelihood.
The timely return of one’s personal and digital property is a basic human and legal right for all workers, whether they are unionized, full time or part time and apart from remuneration, job description or length of service. This concern features prominently in creative industries such as the Canadian post-secondary academy. The proposed law reform should endure as a permanent minimum employment standard.