Chapter 2 - Legal: Compliance & Impact Flashcards
Legal right of Employer
Right to modify employee work terms for legitimate business needs
Legal right of Employee
Right to be protected from harmful business practices
Legal duty of the Government
Balance needs of employer and employee (legal rights)
Federal law jurisdiction
Federally regulated employers *federal civil service, Crown corporations & agencies, transportation, banking, communications)
Provincial/territorial employment laws
All other employers (90% of Canadian workers)
Canadian Legislation
- Canadian Charter of Rights and Freedoms (basic rights)
- Human Rights Legislation (protection from discrimination)
- Employment Standards Legislation (minimum terms and conditions of employment)
- Ordinary Laws (Content or context specific)
- Collective Bargaining Agreement
- Employment contract
The Canadian Charter of Rights and Freedoms
Freedoms, freedom of:
- conscience and religion
- thought, belief, expression and opinion
- peaceful assembly
- association
Section 15 of the Canadian Charter of Rights and Freedoms
Section 15 - Equality Rights
- right to equal protection and benefit of the law without discrimination
Discrimination
Impairing the right of a person to full and equal recognition and exercise of his or her human rights and freedoms
Prohibited grounds of Discriminiation
Check Fig 2.2 in Chapter 2.
Types of Discrimination
- Intentional Discrimination
2. Unintentional Discrimination
Intentional Discriminiation
- direct
- differential or unequal treatment
- indirect (3rd party)
- by association
Unintentional Discrimination
- constructive or systemic discrimination
- embedded in policies with adverse impact on specific groups
Examples of Unintentional Discrimination
- Minimum height/weight requirements
- Limited accessibility to company premises
- Lack of harassment policy or guidelines
Bone Fide Occupational Requirement (BFOR)
- Justifiable reason for discrimination
- Based on business necessity (safe and efficient operations)
- eg. vision standards for a bus driver
Reasonable accomodation
- adjustment of employment policies/practices so that no individual is denied benefits
- eg. work station redesigned for wheelchair
Disability
Basis determined by courts (differential treatment)
Accommodation (respect dignity, legally defensible)
Harassment
Unwelcome behaviour that demeans, humiliates or embarrasses a person and that a reasonable person should have known would be unwelcome.
Examples of harassment
- unwelcome remarks, slurs, jokes.
- unwelcome sexual remarks, physical contact
- condescending behaviour
Employer responsibility (Harassment)
- protect employees from harassment
- includes harassment by clients or customers
Sexual Harassment
Offensive or humiliating behaviour that is related to a persons sex as well as behaviour or a sexual nature - creates unwelcome work environment.
Sexual Coercion
Harassment of a sexual nature that results in some direct consequences to a worker’s employment status
Sexual Annoyance
Sexually related conduct that is hostile, intimidating or offensive to the employee but has no direct link to tangible job benefits or loss.
Harassment Policies
To reduce liability, employers should:
- establish harassment policies
- communicate policies to all employees
- enforce policies in a fair and consistent manner
- take an active role in maintaing a working environment that is free of harassment
Aspects of Harassment Policies
- clear policy statement
- information for victims
- employees rights/responsibilities
- anti-harassment policy procedures
- penalties
- guidelines for appeals
- other options
- how the policy is adjusted and monitored
Enforcement of Harassment
Responsibility lies with the human rights commission in each jurisdiction
Cost are borne by the commission - solved through mediation
Remedies:
- systemic
- restitutional
Discrimination - Other Human Rights Case Examples
- race and colour
- religion
- sexual orientation
- age
- family status
Employment Equity Act
- Based on Charter of Rights and Freedoms
- Applies to federally regulated employers only
- promotes equality
4 Designated Groups in the Employment Equity Act
- Women
- Visible Minorities
- Persons w/ Disabilities
- Aboriginal people
Employment Standards Act
- Federal and provincial/territorial versions
- Establish minimum terms for: wages, overtime, paid holidays/vacations, maternity leave, bereavement, termination notice
- Employment contracts may exceed minimums
- Principle of greater benefits applies
Enforcement of Employment Standards Act
- complaints filed with ministry of labour or counterpart
- filed complaint is settled through the ministry, not civil court
- limitation periods for filing
- maximum claim limit for unpaid wages
Respecting Employee Privacy
Challenges:
- Employer has right to prevent liability to the company
- Employees have right to control over info about themselves and freed from interference in their personal life
Internet and Email Usage Policy
- electronic surveillance is permitted
- employer should create written policy
- policy should be updates regularly to stay current with technology
Video Surveillance
- used to prevent employee theft and vandalism
- employee must be made aware
- not advisable if reasonable alternatives exist
