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Top five tips to navigating the employment law minefield

By Jordan Rodney

Employment law is an ever-changing and rapidly evolving area of the law. Not only must associations stay abreast of important legislative decisions, but earlier this year the overarching legislation that governs employment in British Columbia (BC), the BC Employment Standards Act (“ESA”), underwent a significant overhaul for the first time in 15 years, with Bill 8, Employment Standards Amendment Act, 2019 coming into force. Chief among the amendments introduced by Bill 8 include: new statutory leaves, new requirements surrounding employee resignations and further protection for youth employment. While these amendments may not affect every employer, they do signal a significant new trend in BC, and similar developments have occurred in Ontario with the recent introduction of Bill 47. The changes in BC and Ontario, along with other provinces, makes it imperative for employers to remain vigilant in the coming years to ensure that they remain compliant ahead of future changes and sufficiently limit their liability.

With that said, despite the current state of flux facing employment law in Canada, we believe that there are several foundational principles, or best practices that have been, and will remain to be, absolutely essential for years to come. As such, we have summarized our recommendations below, to act as a guide in your association’s quest to navigate the employment law minefield.

1. Building the Foundation: Compliance and Infrastructure

Every successful association is built on a strong foundation. On the employment law front, this means implementing a carefully drafted employee handbook and employment agreements at the beginning of your employees’ life cycle. These documents will ensure that you are not opening your association up to liability. These documents will also serve to introduce employees to the association’s culture, mission and values and drive consistent client service, work habits and association objectives. Furthermore, providing each employee with an enforceable employment agreement with a legally vetted ironclad termination clause before they start working will eliminate any surprises and help mitigate risk in the event that the employee exits the association.

With that in mind, the following are the key elements that we recommend every employment agreement contain:

i.  Valid consideration

ii.  Clear and unambiguous language

iii. Termination, confidentiality, non-disclosure, and non-solicitation clauses

However, employers must keep in mind that even the most professional, legally defensible and enforceable agreement must be signed off by the new employee prior to the first day of work. It is also important to note that if even one word or sentence is missing in a particular clause, an employer may not be able to rely on the clause or agreement down the road. For employees who fall under the employment standards legislation — compliance with the legislation is fundamental and any attempt to contract out or waive a provision of the ESA will render a termination clause unenforceable.

2. Frequent and Meaningful Staff Communications

Having a strong set of values is vital to the success of your association. As such, it is important to create, communicate and, most importantly, consistently live by your association’s values. This means that the association’s values should be intertwined with how your employees conduct their work, interact with each other, and interact with clients. It is also important to implement a performance management/recognition system to ensure that your employees are living by these same set of values.

Management should ensure they develop a direct line of communication with employees to provide real-time feedback. Providing feedback is a crucial element in nurturing the employment relationship and is an important aspect in every phase of the employee life cycle, from hiring to offboarding an employee. Consistent feedback also allows managers to assist employees with improving upon their strengths and developing their areas of opportunity. Managers often shy away from providing feedback because talking about an employee’s performance can be very uncomfortable and/or counterintuitive. However, clearly outlining performance and behaviour expectations, as well as having honest and direct communication with staff will allow your association to stay ahead of potential issues before they arise.

3. Everything You Want to Know About Accommodation but Were Afraid to Ask

Effectively responding to an accommodation request can be one of the most complex and nuanced areas for a Canadian association to navigate. The Human Rights Code (the “Code”) explicitly outlines a number of prohibited grounds based on personal characteristics of groups that employers have a legal duty to accommodate. A few common examples of those prohibited grounds include: race, gender, age, religion, disability and sexual orientation. However, it is important to note that the Code’s prohibited grounds continue to expand and evolve as workplaces are continually put to the test.

When assessing whether employers have met the accommodation threshold, it is important to note that they cannot escape their duty to accommodate by turning a blind eye. For example, in disability cases, while the employer is not always expected to have actual knowledge of an employee’s disability, the critical question is “whether the employer was aware or ought reasonably to have been aware of the employee’s health issues.” This is known as the ‘duty to inquire’. In cases where an employee might not be comfortable coming forward (e.g. mental health issues), an employer has a legal duty to ask those difficult questions. As such, employers should be on the lookout for “indicators” triggering the duty to inquire, such as increased levels of stress, deteriorating performance and anger management issues.

With that said, the duty to accommodate is not without limits. Accommodation requires a balancing of the right of an employee to be free from discrimination and the right of an employer to operate a productive workplace. The Code requires employers to accommodate the needs of those employees up to the point of ‘undue hardship’. When faced with accommodation requests, the key is to remember that accommodation is a delicate balancing act that requires a reasonablenot a perfect — solution. Both the employee and employer are required to come together to assess the particular circumstances associated with the request to establish creative solutions and ultimately determine if and how the employer can accommodate the employee.

4. Hire Slow and Fire Fast

One of the key principles that we consistently reinforce with our clients is to “hire slow, fire fast.” Taking the time to effectively hire the right individuals for your business is one of the most important drivers for association success. As such, hiring is not something business leaders or hiring managers should be rushing, and employers should not cheat the hiring process. While the process may be time consuming and utilize resources, our philosophy is not to take shortcuts. We recommend thoughtfully creating a structured process that tests for both ability and cultural fit and involving a number of trusted individuals within your association. Ultimately, your business must use this time as an opportunity to find the very best candidate in an effort to hire an individual who can help take the association to the next level.

With that said, nothing brings down an association more than a bad apple. As such, employers must continuously be on the look-out for employees who fail to consistently live by your association’s values, exhibit a poor attitude and/or a lack of performance. Once identified  you will be faced with a challenging decision. On one hand, it may be in the association’s best interests to invest more time into this individual by performance managing, in an effort to iron out the employee’s key areas of development. On the other hand, there are circumstances when it is clear that there is no longer a future with this employee. However, when the difficult decision to terminate is made, it is imperative to act swiftly and professionally while treating the employee with dignity and respect. Although this recommendation may not be easy, your association will benefit greatly from your focused and prudent approach.

5. Terminations: The Good, The Bad, The Ugly

Effectively managing employee terminations is the single most daunting task facing businesses today. This is largely due to the fact that a mismanaged termination can be very costly and open up your association to liability. Alternatively, a properly carried out termination meeting will serve to preserve the employee’s dignity and allow your association to separate from an employee in a respectful and amicable manner. Nevertheless, conducting an effective termination meeting is a fine art that takes careful preparation and experience.

Employers would be wise to keep the following key elements in mind when conducting a termination meeting:

1. Greet the employee. At the outset of the termination meeting, it is important to keep the small talk to a minimum. Although there is a tendency to want to avoid the real issue, the sooner you get there, the better

2. Focus on the agenda. The termination meeting is not the time to elaborate on previous performance issues or historical information. It is important to stay focused and remain in control at all times

3. Clearly communicate the decision. When conducting a termination meeting, it is important to reference the phrase, “termination of employment.” Many employers use words such as “transition”, “layoff”, or “separation”, which can confuse the real message. “Termination” is the legal term and must be used as such

4. Explain the termination package. It is not recommended to read the termination package in its entirety. When an employee is told they are terminated, he or she invariably enters a state of disengagement and often will not hear what is being said. Therefore, it is recommended that the highlights of the termination package are reviewed, and the employee is encouraged to read the letter once the news has settled in

5. Discuss separation logistics. One of the delicate areas of a termination meeting is how the employee departs from the association, as well as the retrieval of personal belongings. There are various options in this situation, including: giving the employee an option of packing up the belongings and departing within a short period of time; the association packing up the employee’s belongings and shipping it to the employee; or, scheduling a time for the employee to pick up the belongings after business hours

6. Close the meeting. Equally important to setting the tone is how the termination meeting is completed. The employee should be reminded that it is a business decision and not a personal decision. It should also be kept in mind that a handshake or “thank-you” could go a long way

7. Third-party presence. Having a third-party present is important both from the employee and employer perspective. From the employer perspective, having an HR professional and Employee Assistance Provider representative at the meeting helps protect the association by minimizing any potential risks. From the employee perspective, he or she often wants to speak to an objective third-party once the bad news is received

Although these tips provide employers with key guiding principles that will assist with the initial foray into the challenging employment law minefield — this list is unfortunately not exhaustive and new issues in employment law continue to develop at a rapid pace. As such, we recommend seeking out the guidance of a seasoned employment lawyer and/or HR Professional to assist your association with mitigating the risk of potential claims and to ensure that your association is consistently complying with employment standards legislation and best practices.

This article provides general information and should not be relied on as legal advice or opinion.

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