Employers of all sizes need sound employment practices solutions; Here’s why

Employers’ day-to-day business challenges can be daunting – including compliance with Canadian labour and employment laws. The laws can be complicated, vary by province (except for certain federally regulated businesses) and are constantly evolving. If a business is not in tune with the laws, complying with them may be like trying to hit multiple moving targets.

Canadian labour and employment laws establish standards around various employee rights, including pay and vacation entitlements, severance, discrimination and harassment. Legislation aims to ensure that all Canadian employers treat their employees fairly in the workplace. The Canada Labour Code¹,  Employment Standards Act, 20002² (ESA) (similar provincial legislation across Canada), Labour Relations Act, 1995³  (OLRA), Occupational Health and Safety Act⁴  and federal and provincial human rights acts are some examples. Which laws apply depend largely on a business’s location and type.

Employers of all sizes, especially those with employees in multiple provinces and territories, may find it difficult to fully understand and remain compliant with these and other labour and employment laws and jurisdictional nuances, which can open the door to potential employment-related litigation and issues.  For instance, there are a variety of actions alone that could constitute a wrongful employment practice:

• Wrongful dismissal, discharge or termination of employment, whether actual or constructive
• Employment-related misrepresentation
• Sexual harassment or other unlawful harassment 
• Wrongful deprivation of career opportunity, failure to employ, promote or train; failure to afford partnership or other equity status; wrongful discipline of employees; retaliation against employees for the exercise of any legally protected right or for engaging in any legally protected activity; negligent evaluation of employees and employment-related wrongful infliction of emotional distress.

Further, some small private organizations may especially find it hard to envision being sued by one of their employees. Smaller companies often have fewer employees and perhaps a very close-knit corporate culture. This may be in spite of these organizations having strong written policies in place reinforcing important guidelines around workplace conduct.

Employment laws and regulations are constantly evolving. Bill 148, Fair Workplaces, Better Jobs Act, 2017, contained many changes including scheduled minimum wage increases and equal pay for equal work related to “employment status.”⁵   However, with the election of a new Ontario government in June 2019, this bill was largely repealed or revised with the November 2018 passage of Bill 47, the Making Ontario Open For Business Act, 2018⁶, which contained less significant amendments to the ESA (came into effect on Jan. 21, 2019).  It is important for employers to keep current with legislative changes that could be adding new exposures, which small organizations may not have previously considered. Hard-to-predict factors such as these can lead to employment-related disputes and litigation regardless of the size of the organization. Here are examples, which can happen to any firm:

• An employee informed her employer that she would be going on maternity leave.  Several months later, the business lost several major accounts and, as a result, had a reduction-in-force. Since the employee worked on one of the lost accounts, she was one of three employees who were eliminated -- one month prior to her scheduled maternity leave. The employee filed a lawsuit alleging wrongful termination and pregnancy discrimination and sought lost wages and compensation for emotional distress. Due to the timing of the termination to the employee’s scheduled leave, she was awarded more than $500,000 in defence costs and indemnity.
• An employee accused an employer of not providing the appropriate disability accommodation, as required by law.  The employee also complained about workplace harassment and bullying attributed to the disability. Eventually the employee quit, citing a toxic work environment as the reason for her departure. The former employee sued the company for more than $300,000 in lost wages, pain, suffering, humiliation and interest.

3 Reasons Why EPL Coverage Helps Address Employment-Related Exposures

Employment Practices Liability (EPL) coverage is a necessary insurance solution that can help address many employment-related exposures. Here are three reasons why companies of all sizes and industries need to address these exposures with the right coverage:

• Costs to defend EPL claims can be substantial and financially devastating to small companies trying to grow their business. Employment Practices Liability coverage allows organizations to stay focused on their business and can reduce the impact of costly claims.
• Employment-related litigation can have a negative impact on an organization’s reputation, which could translate into loss of current and future customers as well as business partners.
• A global insurer with cross-border capabilities can offer expertise and access to top law firms to defend against costly and complex claims.

CNA Epack Extra is a Market-Leading EPL Solution

CNA’s Epack Extra is a market-leading and flexible package of management and professional liability coverages, including Employment Practices Liability. Epack Extra provides policyholders with these key EPL benefits:

• Independent contractors are included within the definition of employee with no indemnification requirement
• Coverage for Discrimination or Harassment Claims by persons other than an Employee of the Named Insured
• Definition of “Wrongful Employment Practices” is broad and includes failure to afford partnership or other equity status and failure to train
• Definition of Claim includes formal regulatory and administrative proceedings, United States Equal Employment Opportunity Commission investigations, and requests to toll the statute of limitations
• Mediation credit available to reduce retention by 50 percent, up to $10,000
• Coverage Territory is Worldwide
• Claims Made and Duty to Defend coverage with advancement of defence costs
• Includes Most Favorable Jurisdiction provision 
• Eligible policyholders can receive complimentary legal assistance through the HR Help Line, provided by a leading national labour and employment law firm, which advises employers on all aspects of workplace law, including employment law issues
• Additional enhancements are available for qualifying policyholders

For more information on Epack Extra visit cnacanada.ca.

To access all other 2019 blogs: https://www.cnacanada.ca/web/guest/cnacanada/about/listofauthors

Abena began her insurance career in 2008 and has since gained diverse experience across personal, commercial and specialty lines of business. In her current role, she is responsible for underwriting renewal and new business for Private/Not for Profit and public companies seeking Management Liability coverages. She also oversees a co-op program designed to provide business students with hands-on management liability underwriting training.

Abena is a graduate of the Global Professional Master of Laws Program and holds the Canadian Risk Management and Registered Professional Liability Underwriter Designations.