Expanding borders? Expand those policies

Setting up shop in another jurisdiction usually requires a rethinking of workplace policies to ensure compliance with local laws

Stuart Rudner

Canadian HR professionals and employment lawyers often criticize foreign organizations for failing to take into account the fact Canadian employment law differs from the laws in other countries. However, they frequently make the same mistake when it comes to distinctions between jurisdictions within Canada. In order to protect an organization as best as possible, HR professionals, or those tasked with drafting and implementing policies and procedures, should ensure they are compliant with the laws of each jurisdiction in which they have employees.

In the context of just cause dismissals, policies that set out the types of behaviour that are unacceptable — ensuring those policies are distributed to all employees and are routinely enforced — are very important for employers to have so there can be no defence of ignorance or condonation. Employers should regularly review existing policies and update them in order to keep up with changes in the law and in the workplace. For example, although many organizations have policies addressing Internet and e-mail usage, relatively few have policies which address the recent issues surrounding the use of social networking sites such as FaceBook and MySpace. Even the best written policy manual will lose value over time if it is left to collect dust on a shelf.

Laws in head office’s jurisdiction don’t apply elsewhere

Another issue with respect to the creation and imposition of policies and procedures is the fact that many organizations are now national or multinational and have employees in multiple jurisdictions within Canada and around the world. When speaking with clients that are based outside of Canada, particularly those in the United States, I frequently stress the need to recognize Canadian laws will differ from their home country and the policies and procedures they have used elsewhere may not be appropriate in Canada. However, it is important to note that even within Canada, there are important distinctions between employment standards legislation in various provinces and territories.

While the majority of legislation is fairly consistent from one province or territory to another — Quebec perhaps being the exception, as it is truly a “distinct” society in this context — there are some important differences. For example, the legislation relating to hours of work, overtime, dismissals, layoffs, statutory holidays, paid and unpaid leaves and other issues will differ from province to province, sometimes with minor variations and sometimes more significant ones.

For this reason, it is important to remember any policies and procedures must comply with the employment standards legislation in the jurisdictions where the employees are working. In many cases, organizations draft a policy manual in the province where their head office is located, have it reviewed by their lawyers in that province and then proceed to roll it out across the country. Often, no thought has been given to ensuring it complies with the employment standards legislation of the other provinces where they may have employees. This can be a critical mistake.

Tips for multijurisdictional policies

When creating policies, organizations should:

•Create policies to address any and all potential issues and matters.
•Ensure all policies and procedures comply with the employment standards legislation of each and every jurisdiction in which a company has employees.
•Disseminate the policies and procedures so every employee, including management, is made aware of them and reminded of them on a regular basis.
•Monitor employee behaviour in order to ensure compliance.
•Discipline any employees that breach policies or procedures.
•Regularly update policies and procedures in order to reflect changes in both the law and society.

It will generally be necessary to have someone who is an expert in the employment laws of each jurisdiction review proposed policies and procedures in order to ensure they are compliant. A large national law firm, with experienced lawyers in multiple jurisdictions can be an asset, as lawyers in one jurisdiction can review client policy manuals for compliance and then send them to colleagues in other provinces to ensure they comply with the laws of those jurisdictions. If an employer is dealing with a law firm that does not have offices in other jurisdictions, it should ensure its policies are similarly compliant, even if it means retaining additional counsel in those jurisdictions.

Stuart Rudner is a partner in Miller Thomson LLP’s Labour and Employment Group in Toronto. He can be reached at (416) 595-8672 or srudner @millerthomson.com.

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