Page 44 - CCCA 243725 Magazine_Winter 2015

{ LeGaL innovation }

CompliAnCe WitH WorkplACe regulAtion:

An emploYer’s Burden

By Tim Lawson

On any given day, an employer is calculating payroll taxes, reporting an The idea that the employer bears the
injury to a workplace insurance board, conducting an employee safety responsibility to investigate and report on
non-compliance is a concerning develop-
training session or investigating a harassment complaint fled against ment. Because audit requests are easy to
a manager. the obligations are varied, sometimes onerous and often make, we anticipate many employers will
intertwined. Enforcement and punishment by a variety of government be asked to conduct audits, especially in
sectors where the government considers
agencies is ever present, and ignorance of the law is not a defence. there to be “vulnerable workers” (such
as former pay equity audits in the retail
and textile sectors). And if employers are
s a result, employers not in compli- No discussion of workplace compliance investigating for the government free of
ance or caught off guard by new reg- should leave out the recent trend of gov- charge, why wouldn’t the tool be used on
Aulatory requirements can face signif- ernments imposing social responsibilities a widespread basis?
cant fnes and penalties, as well as instant on employers. Across the country, employ- For the moment, at least in Ontario,
reputational damage via social media. Ask ers are being asked to address a wide range prudent in-house counsel should be ask-
any in-house lawyer responsible for the of broad social issues, such as workplace ing themselves, “If our organization re-
employment portfolio, and they will con- violence and harassment, family care, men- ceived an audit notice today, how would
fess keeping pace with new developments tal health accommodations, and disability we do?” If the answer is “not sure” or
in employment law is a real challenge. accessibility for employees and customers. “not good,” it is time for some advance
The class action lawsuit is the most These obligations often come with report- due diligence.
notorious example of the consequence of ing, policy and training requirements. How should in-house counsel go about
employer non-compliance. In recent years, But it is a recent under-the-radar it? In collaboration with your human re-
we have seen a rise in the number—and amendment to the Ontario Employment sources team, conduct your own “pre-au-
success—of class actions. Most often the Standards Act that shows how far the dit” test. Audit pay practices, review hours
class action asserts a repeated violation of government will go to download compli- of work and overtime practices, consider
employment standards, such as hours of ance on employers. It seems like a benign vacation and statutory holiday guidelines,
work. While the individual violations may change really, but it could have sweeping and review whether managers are truly
be small, the number of employees in the implications. As of May 20, 2015, Ontario managers and exempt from overtime rules.
class action and the repetitiveness of the of- employers will be required, if asked by a Whether you perform this audit internally
fence can add up the damages very quickly. Ministry of Labour Offcer, to conduct a or seek outside assistance, a little proactive
Not so dramatic, but no less relevant, self-audit of their employment practices management now can avoid a lot of cost
is government enforcement of workplace and policies to determine compliance and headache down the road. ❚
regulation. The Ontario government, for with the Act. No complaint or history is
instance, enforces compliance with em- needed to initiate the request.
ployment standards, and occupational Employers requested to perform the Tim Lawson is a partner in
health and safety laws by issuing tickets self-audit must reveal the results to the McCarthy Tétrault’s Labour &
Employment Group in Toronto.
and orders, and prosecuting employers Offcer. There is no presumption against He is a trusted advisor and advo-
who fail to comply. In 2013/14, there were self-incrimination. If the results show cate for clients in all sectors of
780 convictions for violations of Ontar- non-compliance, the Offcer may open business. You can contact him at
io’s Occupational Health and Safety Act a fle and begin an investigation, which timlawson@mccarthy.ca. Thank
(OHSA) with fnes amounting to more could lead to fnes, penalties and poten- you to Associate Justine Linder for her assistance
than $9 million. tial prosecutions. with this article.
1
1 Ontario Ministry of Labour, http://www.labour.gov.on.ca/english/hs/pubs/enforcement/index.php.

44 CCCA MAgAzInE | WIntEr 2015 HIVEr