Those of us who work in the area of human resources and human resources law know that nothing stays the same for long. Employment legislation, workplace policies and procedures, and staffing are just some areas where change is constant.
With all this transformation, it is critical for employers to monitor compliance with their legal obligations on an ongoing basis. We discuss below some key areas of compliance worth revisiting in 2015. Ask yourself whether your organization has achieved and maintained compliance in each one. If the answer is “no,” make compliance the number one resolution for your organization in 2015.
NEW OBLIGATIONS UNDER THE ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT
The Ontario government enacted the Accessibility for Ontarians with Disabilities Act (“AODA”) in 2005 with the goal of making Ontario accessible to persons with disabilities by 2025. As part of their AODA compliance obligations, affected organizations should have already developed policies, conducted training and developed accessibility plans in accordance with established deadlines – the most recent being January 1, 2015.
For large organizations (50+ employees) in the private or not-for-profit sectors, 2015 is the year in which you will need to review your employment policies and practices related to recruitment, accommodation, return-to-work and redeployment and advancement to ensure that you are compliant with new accessibility standards that take effect on January 1, 2016.
The Ministry of Economic Development, Trade and Employment is responsible for enforcing compliance, and has the power to conduct audits and issue monetary penalties for non-compliance. Accordingly, every employer should check to see if it is AODA compliant – and take steps to ensure compliance in 2015 and beyond.
SEXUAL HARASSMENT AND WORKPLACE VIOLENCE
In 2010, Bill 168 amended the Occupational Health and Safety Act to require worker protection from violence and harassment. Bill 168 specifically defines workplace violence and workplace harassment, and imposes several obligations on employers to protect workers from both violence and harassment in the workplace. This includes an employer obligation to create and post policies dealing with workplace harassment and violence, to create programs to implement those policies, and to conduct a risk assessment with respect to workplace violence addressing the unique circumstances of its workplace.
With the recent release of the Ontario Human Rights Commission’s statement entitled “Sexual Harassment and the Ontario Human Rights Code” and the Ontario government’s commitment to initiatives against violence and sexual harassment, renewed focus should be placed on issues of workplace sexual harassment. Employers large and small are well-advised to ensure robust policies and programs are in place to deal with complaints – and that appropriate training is provided to all employees about their rights and responsibilities.
Many organizations require their employees to sign written employment contracts. These contracts can bring clarity and certainty regarding the terms and conditions of employment, both during the employment relationship and when the employment relationship ends. It is important to review contract precedents on a regular basis, particularly where template documents are used, to ensure those contracts continue to reflect the goals of the organization.
Developments in the case law provide another good reason to review template employment contracts on a periodic basis. For example, several decisions released in the last few years have found termination provisions in employment contracts, which were meant to limit an employee’s entitlements upon termination to his or her minimum entitlements under the Employment Standards Act, 2000, were unenforceable because they did not appropriately address benefits continuation upon termination. Rather than having to pay out the minimum entitlements negotiated in the contract, the employers were required to provide common law reasonable notice. In light of these decisions, employers should review their organization’s employment contract precedents and minimize potential risks in future termination situations.
CANADA’S ANTI-SPAM LEGISLATION
On July 1, 2014, Canada’s anti-spam legislation (commonly referred to as “CASL”), came into force. CASL regulates unwanted electronic messages that frequently target customers and businesses as well as other Internet threats, such as the installation of spyware and other malicious code. CASL restricts the sending of commercial electronic messages, which are messages sent by any means of telecommunication that are intended (even in part) to encourage participation in commercial activity. Any employer that sends electronic messages as part of its marketing and communications strategy should be aware of CASL because of its potential impact on legitimate business- related electronic communications.
Those who fail to be compliant with CASL can face substantial financial penalties that can be levied against both individuals and corporations. 2015 will be the first full year with CASL in effect, so there is no better time than now for organizations to ensure they are compliant.
Many are familiar with the term “pay equity,” but not everyone is familiar with whether their organization is pay equity compliant. The Pay Equity Act came into force in 1989. Since that time, employers covered by this legislation have been required to develop pay equity plans to achieve the legislation’s purpose, which is to “redress systemic gender discrimination in compensation for work performed by employees in female job classes.”
Achieving pay equity isn’t enough, however, as the Act also requires organizations to maintain pay equity on an ongoing basis. Without regular maintenance, pay equity plans can become outdated and an organization that was once compliant might find that some aspects of its plan(s) no longer comply with the legislation. Because liability under the Act is not capped or time-limited, all employers are encouraged to take some time in 2015 to assess whether they are pay equity compliant.
KEEP PACE WITH CHANGE
The workplace is a dynamic environment – and employers must ensure that their policies and procedures keep pace with this constant change. Now is the time to check all areas within your organization – not just those listed here – to ensure the policies and procedures currently in place are compliant with legislation, and continue to serve your organization’s unique needs.