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Your employee files could get you sued!

We recently had a member request a template regarding employee relationships (two of her employees had started a romantic relationship and moved in together). She wanted this document to ensure that her firm would not be liable for a harassment claim, should the relationship go sour. Good practice, right? Not so fast…

In theory, this does make sense. But in today's workplace, theory and practice often suffer a great divide. What was 'best practice' 20 years ago is no more, and a written statement about workplace relationships may now open you up to liability, rather than lessen it. Here's why:

Unless a circumstance surrounding an employee relates directly to work performance, an employer cannot take these into consideration when applying management principles, as this is discrimination.

What is covered under "workplace discrimination"?

The Canada Human Rights Code identifies 'protected grounds' free from discrimination as race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered. There's a lot of potential pitfalls for an unsuspecting employer in there, and we haven't even mentioned the worst part; if you are accused of discrimination due to one of these grounds, the onus is on you to prove that the claim is baseless. That's right, you are guilty until proven innocent.

Not worried yet? Well, you should be. By law, an employee is entitled to review their employment file, on request, and any halfway decent labour lawyer will home in on anything in those files that may resemble discrimination, which can cost you tens of thousands of dollars.

So how do I protect my business?

Ok, so here's the gold you've been waiting for. These three steps can keep you out of a disgruntled employee's cross-hairs and build a strong, ethical and efficient corporate culture.

1) Draft workplace policies

We are not talking, run-of-the-mill, Google-and-print policies either. A policy doesn't protect you and your workers for beans if it’s not:

  • specific (applies specifically to your business' operations and tied to your goals);
  • clear and concise (it needs to outline expectations and consequences); and
  • purposeful (you need to illustrate why its adherence is critical to your workplace.
2) Document deficiencies

Documenting an employee's inadequacies in their job is still important. However, the way in which we both document and conduct our 'performance enhancement' meetings (that's right, we didn't say disciplinary) is vital. A date, location, and specific incident summary should be included, but so should the reason that the employee's actions are detrimental to the business.

Lastly, and most importantly, you should discuss and document how your company plans on supporting your employee to help improve their performance/behaviour. A follow-up date should be set to check back in on progress.

3) Audit your current employee files

Really, this should be at the top of your 'to-do' list, as the existence of potentially discriminatory files presents the greatest current source of liability. Go through your employee's files, page by page using a lens that keeps the Human Rights protected grounds top of mind. If you see a comment or verbiage in any of the documents that make you question whether or not it is safe, get rid of it. In cases where documents are questionable, it is best they don't exist at all, rather than running the risk of them possibly helping your case but potentially sealing its fate.

Conclusion

This may seem a trivial exercise and you may believe not applicable to your workplace (i.e. "we're one tight-knit happy family"...kumbaya), but we are telling you, no business is exempt and no free-passes are given by Human Rights lawyers looking to cash in on well-meaning business owners' ignorance.

Take an hour out of your day and perform a quick audit of your documents. When there comes a day when a disgruntled employee demands their files (and there will be), you'll be glad you did.

If you have any further questions our Business Counsellors are available to help all CFIB members at 1-888-234-2232 or by email [email protected]