Employment Law and Human Resources: Questions from the HRPA

On Thursday August 25, 2023, Workly Law attended the Human Resources Professional Association’s (HRPA) Regional Forum, HR Tomorrow in Toronto. The HRPA brings together human resources (HR) professionals from various industries to discuss the latest trends, challenges, and best practices in the field. As representatives of Workly Law, we had the privilege of engaging in meaningful conversations with these HR professionals on the pressing concerns they face in the realm of employment and labour law.

Employee Monitoring and Artificial Intelligence in the Workplace

With the implementation of many artificial intelligence (AI) platforms into the workplace, HR professionals were curious about the legal boundaries of employee monitoring, especially when implementing technologies like employee tracking software, biometric attendance systems, and workplace surveillance. They were keen to learn about the mandatory Electronic Monitoring Policy applicable to employers with 25 or more employees under the Employment Standards Act, 2000 (ESA).?

Additionally, many HR professionals were curious about the potential implications of integrating AI into the workplace. They were interested in gaining a deeper understanding of how this integration might impact employee retention rates, as well as the potential liabilities that employers could face in relation to the output of work facilitated by AI. Additionally, there seemed to be a large interest in establishing effective regulations in the workplace for the use of AI by employees within their organizations.?

During her presentation, Sunira Chaudhri, the Founding Partner at Workly Law, highlighted that regulating employee use of AI is one of the most critical business decisions that organizations are facing right now. Workly Law has been drafting policies on employee use of AI in the workplace for many employer clients.

Navigating Leaves, Terminations and Layoff Challenges

Leaves, terminations and layoffs can be a confusing and legally complicated process. During the conference, HR professionals sought guidance on the precise procedures to follow when employees seek leaves of absence, and the best practices for conducting employee terminations and layoffs to ensure compliance with the ESA and common law.

There are many different types of leaves protected under the ESA. The determining factor for eligibility to take a particular leave of absence revolves around whether the employee meets the criteria to be protected by the leave. For example, if an employee is pregnant, they are entitled to take a pregnancy leave of up to 17 weeks. In some cases the leave may be longer. Important to note, following a leave, employees are entitled to be reinstated into their prior role, provided it still exists. Alternatively, if such a role no longer exists, they should be reinstated into a “comparable position.”

While every termination and layoff may be different, when an employer terminates an employee who has maintained employment for a span of three months, the ESA requires the employer to provide the employee with written notice of termination, termination pay, or a combination thereof. This combination must ensure that the cumulative duration of notice and the corresponding termination pay matches the length of notice to which the employee is entitled. Furthermore, employers have several options available to them when executing employee layoffs. Workly Law recommends including a provision in employment agreements that allows for temporary layoffs. However, this provision must be clearly defined and must comply with the ESA.?

Remote Work and Employment Agreements

During the conference, we addressed numerous inquiries pertaining to employment agreements within the context of remote work. HR professionals sought guidance on adapting current agreements to suit remote work setups and effectively managing issues associated with remote work.??

Employers generally have the authority to designate the workplace for their employees, as stipulated within their employment agreement. In cases where the agreement permits remote work but designates a particular geographical region, the employee might have the option to modify their work location within the specified region. However, whether an employee can change locations without notifying their employer largely depends on their employment agreement and the company’s policies. Workly Law recommends that employment agreements refer to a comprehensive remote work policy? that outlines permissible locations for remote work. This is extremely important as employment standards and tax responsibilities vary based on location.?

Main Takeaways from the HR Tomorrow Conference

The HRPA’s HR Tomorrow conference provided a valuable platform for HR professionals to seek guidance on the complexities of employment and labour law. Non-compliance with employment and labour laws can lead to legal disputes, financial penalties, and damage to an organization’s reputation. Therefore, HR professionals play a very important role in safeguarding their organizations by proactively staying informed about the latest legal developments, seeking guidance when needed, and implementing effective HR policies and practices that adhere to the law. Given the dynamic nature of employment and labour laws, HR professionals must stay updated on the latest changes in law to ensure that their organizations remain both compliant and ethical in their practices.

For more information on employment and labour legislation as well as the policies and practices that HR professionals should be aware of, contact Workly Law.

The content of this blog is general information only and is not legal advice.

Rebecca Stein

Law Student at Workly Law