If you've ever been sued by a disgruntled employee for wrongful dismissal or faced a human rights tribunal, then you've learned the hard way the value of a proactive approach to employment law matters. If you haven't had such HR trouble, do you really want to take that chance?
I meet daily with businesspeople who face a raft of uphill HR battles. The message is the same: these problems could have—and should have—been avoided. With advance planning and a relatively small investment in ensuring a firm's HR practices comply with applicable workplace laws, business owners can save thousands spent on avoidable legal challenges related to everything from lacklustre contract design to non-existent employee policies and procedures.
Here are some basic rules every employer can follow:
Don't hire or promote out of desperation: Employers can be charmed by how well a candidate sells themselves during the recruitment process rather than focusing on the requirements of the position and their ability to do the job. What so many CEOs and hiring managers miscalculate is the negative impact one employee can have on a business' morale and bottom line. Similarly, when you're desperate to fill a position, you can become wilfully blind when determining what skills and abilities the job requires, or promote people who aren't ready for a promotion. The result: you're left to deal with an employee who is incompetent, disengaged or damages your workplace culture—and you must reach out to an HR lawyer for help with navigating the legal exposure that comes with the eventual dismissal.
Include termination clauses in employment agreements: When hiring, employers have a tendency to overlook or avoid defining the expectations of the relationship through written employment agreements. Even where there are agreements in place, many fail to include important clauses, such as termination provisions that set out the employee's entitlements should the employer end their relationship. Some CEOs I've worked with admit to omitting these clauses because they don't want to make the employment offer unattractive. But by failing to do so, you entitle a worker to significantly more notice or pay in lieu of notice. Through contractual termination provisions, you can limit an employee's notice of termination entitlement closer to the minimum amount stipulated in employment standards legislation. Without such a clause, the employee can demand notice based upon common law reasonable notice, which is typically greater than employment standards minimums.
Establish workplace behavioural policies and procedures: In today's workplace, it's increasingly important to establish policies stating when, how and to what standard work is to be performed, along with the consequences for not meeting those expectations. That includes policies dealing with specific behaviour ranging from harassment to using social media in the workplace. For instance, a recent Ontario decision scrutinized the right of an employer to terminate an employee for improper use of an employer-issued laptop because the company didn't have a policy setting out permissible use of its equipment.
Train your managers: As the adage goes, employees don't leave their companies—they leave their bosses. One rogue manager can destroy a decent corporate culture and cause significant liability for a company. Managers ill-equipped to communicate, delegate, manage worker performance and set expectations can provoke harassment complaints or stress-leave claims from their direct reports. To avoid these disputes, ensure managers receive training on how to effectively communicate with—and manage—the performance of their teams, as well as the company's legal obligations to employees.
Call counsel before making decisions: Legal costs can be significantly contained when employers ask for advice prior to implementing workplace-related decisions. Why? Sometimes even straightforward decisions made for solid business reasons can have costly implications. For example, even if you have sound reasons for ending an employment relationship, you could face costly litigation if the employee's situation is covered by human rights legislation—such as a disability or pregnancy. An HR lawyer can help you avoid that—sometimes in a 10-minute phone call—by providing you with advice upfront to ensure you make the right business decisions and sidestep legal pitfalls that can send a manageable situation spiralling out of control.
By obtaining legal advice before demoting, disciplining, terminating or even hiring people, you can save thousands of dollars in legal fees, not to mention the stress and the bottom-line impacts of a damaged corporate culture.
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.
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