It’s that time of year again. Each holiday season I pour a cup of soured eggnog on employers’ festive cheer by pointing out the many challenges that come with hosting seasonal employee shindigs.
The goal isn’t to knock the wind out of your festive cheer, of course, but to help you avoid the many preventable challenges that arise when employees let loose out of office—and indulge in more than their fair share of spiced rum or other seasonal libations.
This year that message is particularly relevant with the passing into law in Ontario of Bill 132, Sexual Violence and Harassment Action Plan Act, 2016, which came into effect in September. The law amends the Occupational Health and Safety Amendment Act (OHSA), among other legislation, to strengthen protections against workplace harassment, bullying and sexual violence.
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Bill 132 was introduced in the wake of several high-profile incidents of sexual harassment and violence across Ontario and the rest of the country in recent years, and was intended to send a clear message that harassing behaviour will not be tolerated in the workplace or at work-sanctioned events. Societal attitudes are changing, and the drink-fuelled antics that were once considered acceptable or “in good fun” are no longer going ignored in today’s workplace.
Factor in the rise of social media, which has blurred the lines between personal and professional communications—and increased the distance and speed at which news of poor workplace behaviour can travel—with a general shift in attitude towards harassment, and it’s no surprise that legislation such as Bill 132 was introduced.
Employers are wise to learn their obligations under the new law. That’s because Bill 132 compels them to investigate any incident of workplace harassment, whether a complaint has been lodged by the alleged victim or not. Even if an incident was witnessed by a third party, or is rumoured to have occurred, it must be investigated.
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Employers that fail to take action could face penalties or prosecution under the OHSA, and fines up to $500,000. Bill 132 also empowers Ministry of Labour inspectors in powerful new ways. Inspectors can now order a company to hire a third-party investigator to conduct a review of a harassment incident or complaint if they believe your inquiry was not sufficient.
Of course, this development poses new challenges for employers who choose to throw end-of-year bashes. Put mildly, stuff happens at parties, particularly when alcohol is involved. Even relatively innocuous incidents that might have gone unchecked in years-past may now have to be investigated. If the conclusion of the investigation is that nothing untoward occurred, then consider the case closed once all relevant facts and findings have been recorded. If not, the matter will need to be escalated, which could include further inquiries, a suspension for the offending employee, possible termination or even referral to the authorities depending on the severity of the allegations in question.
You can’t be blamed if you’re not feeling the Yuletide joy right about now. Who would, especially after learning of such a seemingly onerous set of compliance obligations?
But remember that Bill 132 isn’t meant to spoil your organization’s after-hours fun. It’s simply intended to enforce measures that your organization should already have in place.
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That means developing (or updating) comprehensive policies to prohibit any form of sexual violence, harassing behaviour or bullying in the workplace, while also establishing procedures to document and investigate any such incidents and manage them as needed. Your organization also needs to have systems to train management and staff, ensuring that both parties are aware of their obligations under Bill 132. Be sure to regularly reinforce that training with refresher sessions as necessary, or at least annually.
Part of that training involves making employees aware of their responsibility to report any workplace harassment they witness, or experience themselves. Building a culture of shared responsibility is an important step in helping to ensure that inappropriate behaviour is regulated and curbed soon after it happens.
Unfortunately, bad things can happen at holiday parties. You need to be prepared to meet your Bill 132 obligations, which will help to avoid incurring a very nasty New Year’s hangover.
Laura Williams is an employment lawyer and founder of Williams HR Law in Markham, Ont. She has more than 15 years experience providing proactive solutions to employers aimed at reducing workplace exposures to liability and costs that result from ineffective and non-compliant workplace practices.