Northern Exposure

New Year’s Resolutions for Canadian Employers

By Brian P. Smeenk

As we all contemplate our personal goals for next year (have you, too, promised yourself to work out more?), what resolutions should you make for your business in Canada?

Your CFO might urge the normal resolutions of cutting back on consumption or reducing your size. But maybe there are some more refined goals we can think about, gleaned from recent employment law developments such as those discussed in Northern Exposure. Here are some ideas:

  1. Review and update harassment policies and training. This recognizes that a number of Canadian provinces have recently introduced tougher workplace harassment and violence laws. As a result, we’re seeing more cases alleging unlawful harassment. Everyone needs to know what’s proper and what’s improper — on the part of both your managers and your employees.
  2. Review and update accessibility standards. Some provinces have recently enhanced regulatory requirements in this regard. Ontario has regulations coming into force in stages for various aspects of every business in its jurisdiction. Even without such regulations, human rights tribunals are increasingly expecting greater accessibility in order to fulfill the duty to accommodate. So, get ahead of the curve.
  3. Clarify your policies and procedures for illness claims. These claims are no longer just about eligibility for sick pay. Now, if a claim is denied, discrimination claims are often made — either on the basis of disability or on the basis of age or both. So it pays to have a rigorous, fair, and systematic system in place for adjudicating illness claims.
  4. Train your managers to be strict about culpable absences and understanding about innocent absences. With greater awareness and enforcement of human rights relating to disabilities, the need has never been greater to distinguish between blameworthy and legitimate absenteeism. Gone are the days when an employer could just count up the number of days absent and take action when a certain threshold is met. If your managers know how to identify and clamp down on those who are scamming the system, you’ll resolve most of your absenteeism problems.
  5. Get ready to performance manage your older workers. Now that mandatory retirement policies are no longer permissible in most Canadian provinces or territories, it’s increasingly necessary to have good performance management procedures in place, especially for older workers. You’ll be facing a huge severance pay liability if management suddenly says one day, “he/she just can’t do it anymore” without having any prior evidence to show that is the case.
  6. Review your noncompetes and nonsolicitation agreements. As reported in this space a number of times, Canadian courts seem to be increasingly reluctant to enforce these kinds of agreements unless they are (a) tightly worded, and (b) limited to that which is essential to protect the employer.  There’s no point having these agreements in place if you can’t enforce them.
  7. Review and upgrade your computer-use policies. Recent court decisions support employers who maintain well-drafted policies that make it clear the employee has no privacy rights on the employer’s computers. The law also favors employers who actively maintain, monitor, and enforce their computer-use policies. If you do, you’ll be better able to trump any alleged employee privacy rights and control how your systems are used — and for what.
  8. Review your legal advisers and be sure you have the best. We’re biased, of course, but we think this is one of the best resolutions you can make. Like all astute resolutions, it’s for your own good. And ours.

Happy New Year!