Lexpert Magazine

LEXPERT MAGAZINE | JANUARY/FEBRUARY 2017 55 Foreign franchisors, if they become co- employers with their franchisees, will find themselves deemed for Canadian tax pur- poses to have permanent employees, which means they're taxable in Canada. "I've even heard foreign franchisors say they going to avoid Canada, because if they can't come to Ontario there's no point." Weinberg says franchisors everywhere are watching what Ontario does next be- cause, if some of the issues raised become recommendations and are adopted into law, the impact will be felt "in a variety of ways and for a variety of reasons. It will make Ontario an outlier, not just in Can- ada but the world." AT THE END OF THE DAY, there's no getting around it. As the Ontario review notes, the market for products and ser- vices are increasingly globalized, and more is getting outsourced. Tariff reductions, free-trade agreements and cuts to transpor- tation and communication costs have en- couraged this trend. "Canadian companies are now subject to intense international competition," it says, "especially from im- ports from low-wage developing countries." Canada is also witnessing a re-orienta- tion from east-west trade towards north- south trade between Canada, the US and Mexico, largely as a result of free trade agreements. e reorientation to north- south makes it likely that Canadian busi- nesses are increasingly competing with US businesses, which tend to have fewer labour regulations and restrictions. One significant concern is that such competi- tion for investment will lead to a "race to the bottom" or "harmonization to the low- est common denominator" in employment and labour law, the review notes. Ontario may be, for the time being, the only province looking at modernizing its labour laws, but these same forces are af- fecting every province and territory. So watch where Ontario lands on this one, because as technology and globalization continues to transform business, it may be- come increasingly difficult for legislators in other provinces to rely on employment laws that can be read on an iPhone, but were draed around the time the first telephone was invented. It's just a matter of time. Sandra Rubin is a Toronto-based writer and strategic consultant. Sure, technology has made it easier than ever for employees to work wherever they like, but the inverse is also true; employers now have unprecedented ability to track the movements of their workers. One recently filed lawsuit in California, however, raises questions around the practice. The case was brought after Myrna Arias, a sales executive, learned the extent to which her employer was tracking her move- ments. The company had asked her to download a mobile-work- force app that contained a GPS function that tracked employ- ees' locations through their smartphone. She was required to keep her phone on 24/7 to deal with calls, meaning she could be tracked when she was off duty. A manager once bragged he could even tell how fast she was driving. When she realized the invasion of privacy, she uninstalled the app. She was fired. The case highlights the tangled web created when we use per- sonal phones, tablets or laptops for work, or company devices for play, inadvertently putting the information shared through the "Internet of Things" right into an employer's hands. Where employees used to have to punch in and out, today "the secu- rity passes we all have can be embedded with chips that show where you are at any time," says Andrea York, practice group leader of the national employment and labour group at Blake, Cassels & Graydon LLP. Employers regularly use GPS to track employees' locations in industries that use fleets, such as postal services and trucking lines. The same can apply to a company car. If an employee calls in sick for a few days and the car is parked at a resort, or regularly parked outside a strip bar or casino, your employer will know. "Employers can monitor where vehicles are and, if such surveillance is done with notice, it's reasonable you might get questions," York says. The idea that health data is falling into employers' hands through the Internet of Things is also worrying for employees, says York. "Some employers already require a prospective em- ployee to take medical exams [to ensure they're healthy]. In the future, they could take it a bit further and say: 'Wear this device for a while … before we offer you this job.'" York's advice to employers tempted to collect and examine employee information that falls into their hands is simple: don't. Otherwise, she says, the company may be offside Canada's pri- vacy laws. And there's no app for that. TAKE CARE WITH TRACKING MONITORING OUTSIDE EMPLOYEE MOVEMENT MAY VIOLATE PRIVACY LAWS BY SANDRA RUBIN | THE MODERN WORKPLACE |

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