Can an employer give all the necessary information to new hires on a USB stick instead of on paper?
Question: We’re looking into giving new hires a USB stick instead of a large paper package with all the necessary information (benefits/policies) and have them sign a document stating they have received the USB stick, they have access to a computer and it is their responsibility to review the material on their own time. Are you aware of anyone else using this practice and are there any foreseeable legal issues?
Answer: I am not aware of anyone giving USB sticks to new hires, but many employers do not provide hard copies of policies, instead relying on their intranet. Providing a USB stick is not dissimilar.
In any event, having benefit information provided in this way is not a problem. However, it may be an issue if this is the sole way in which policies (particularly those that may give rise to discipline) are communicated.
If an employer seeks to rely on a breach of policy in disciplining an employee, it has the onus to prove that the policy was communicated to the affected employee. Thus, the critical legal issue presented by this scenario is proof of notification.
The importance of notification in enforcement of workplace policies was demonstrated in Lambe v. Irving Oil Ltd.. Mr. Lambe, an Irving Oil branch manager, was dismissed for breaching a variety of workplace policies. Lambe admitted some breaches but brought a wrongful dismissal action claiming he was not properly made aware of workplace policies as he had never received any workplace policy manuals or practice manuals. The court agreed with Lambe and found there was no just cause for his dismissal.
Although arbitrators have held that an employee’s failure to sign a policy is not determinative of the notification question (as in Intercontinental Packers Ltd. and U.F.C.W., Local 148-P), the practice of obtaining signatures confirming that employees have read and understood key policies is nonetheless helpful in establishing that employees have been advised of the terms of those policies and the consequences that may befall them in the event of a breach.
In the event that workers are simply provided with a USB key containing important workplace policies and told to review them on their own time, it is likely that the weight of the burden on the employer to prove notification will increase. This approach could increase the risk that an employee will misplace the USB stick after receiving it or allow the employee to say it did not contain all the policy documents. As an alternative, it would be beneficial to provide time to the employees at work in which they could review the contents of the USB stick on a work computer (and then after that, acknowledge having reviewed all).
In order to ensure the conditions of the policies will be binding, employees should confirm, by signing a document, that not only have they received the policy materials, but also that they have read and understood them and agree to be bound by them. Again, this is not absolutely necessary, but it avoids a lot of arguments when or if proof becomes an issue. In this instance, a two-stage acknowledgement may make sense: Acknowledging receipt of the USB stick and then subsequently confirming the employee has reviewed it and agreed to abide by the policies on it.
In addition to providing employees with documents in an electronic form, it is advisable that employers maintain a policy binder in a central location or create an Intranet page where policies are posted for review. This practice will help ensure that all employees have sufficient knowledge of the policies and the consequences of any breach.
For more information see:
•Lambe v. Irving Oil Ltd., 2002 CarswellNfld 346 (N.L. T.D.).
•Intercontinental Packers Ltd. and U.F.C.W., Local 148-P, [1985] 37 C.L.A.S. 493.
