5 Examples That Show Why HR Compliance is Hard
HR compliance is hard. In our post about employment class actions, we wrote that “most violations of [employment standards] resulted from unintentional misunderstandings of the requirements of complex laws and regulations”. To demonstrate that point, we thought we’d share a few examples. These examples are either laws that are written in a way that makes them hard to understand, or they are requirements that are just hard to find. It is these issues – the way that these laws are written and organized – that makes HR compliance hard.
By the Numbers
HR compliance is about knowing and adhering to the legal obligations that are imposed on employers. These laws are found in Acts and Regulations. Understanding the scope of these laws helps to understand why compliance is hard. So first, some stats to help put the task of legal compliance in context.
There are at least 5 areas of the law that employers have to be mindful of – Accessibility, Employment Standards, Health & Safety, Human Rights, and Privacy. These just cover your “basic” obligations – there are other laws that can apply to an employer. If you have employees in more than one province (or some that are under federal jurisdiction) you need to know what’s happening in every jurisdiction. Across Canada, there are:
- 78 employment-related Acts
- 235 employment-related Regulations
- 30 Active Bills (which are proposed changes to the Acts)
- 300+ reported changes in the last year (including 65 in Ontario)
Those 300 changes to employment laws in the last year do not include the changes that are related to COVID-19.
HR Compliance Examples
As if the sheer number of changes wasn’t enough to make HR compliance hard, the way that many legal requirements are written makes them hard to understand. To produce our plain language summaries in Optimize Compliance, we have lawyers go through the Acts and Regulations and bring all of the requirements related to a topic together in one easy-to-read summary. In doing this, we’ve come up with a list of examples that shows why HR compliance is so hard.
Here’s one example. If you have federally regulated employees, you must comply with the Canada Labour Code. That Act sets out the employment standards that an employer must comply with. One of those standards relates to pay statements. As an employer, you might wonder whether you can give your employees their pay statement in an electronic format. The Act has a section that deals with pay statements. It says:
254 (1) An employer shall, at the time of making any payment of wages to an employee, furnish the employee with a statement in writing setting out
(a) the period for which the payment is made;
(b) the number of hours for which the payment is made;
(c) the rate of wages;
(d) details of the deductions made from the wages; and
(e) the actual sum being received by the employee.
There is nothing in the Canada Labour Code or its regulations that says anything about electronic pay statements. As an employer, reading this section isn’t very helpful to you – your question still isn’t really answered. The answer is that an employer can give an electronic pay statement, but you would only know this if you look at regulations under the Personal Information Protection and Electronic Documents Act (PIPEDA) – an Act that otherwise has absolutely nothing to do with employment standards.
Pregnancy and Parental Leave
Another example that demonstrates why HR compliance is hard is found in pregnancy and parental leave in Quebec. They key information that an employer needs to understand when it comes to pregnancy or parental leave is:
- who is entitled to this leave?
- how much time do they get?
- are there any notice requirements?
- are there any other special requirements?
This is straight-forward information that can be summarized in a few paragraphs and some bullet points, but you would need to read through 20 sections in the Quebec Act to get this information.
Many acts and regulations are written in a way that just isn’t easy to understand, or they send you on a scavenger hunt throughout the Act and Regulations to try to piece it all together. A good example of this is the federal privacy act, referred to as PIPEDA. Here’s what the Act says about the collection, use, or disclosure of an employee’s personal information:
7.3 In addition to the circumstances set out in section 7, for the purpose of clause 4.3 of Schedule 1, and despite the note that accompanies that clause, a federal work, undertaking or business may collect, use and disclose personal information without the consent of the individual if
(a) the collection, use or disclosure is necessary to establish, manage or terminate an employment relationship between the federal work, undertaking or business and the individual; and
(b) the federal work, undertaking or business has informed the individual that the personal information will be or may be collected, used or disclosed for those purposes.
7.4 (1) Despite clause 4.5 of Schedule 1, an organization may use personal information for purposes other than those for which it was collected in any of the circumstances set out in subsection 7.2(1) or (2) or section 7.3.
To understand this requirement, an employer has to look at different sections of the Act, look at the Schedule and then figure out how all of those requirements come together under the convoluted language of section 7.3. And these aren’t the only parts of the Act that deal with employees, so you need to make sure you’ve looked at everything. When laws are written like this, it’s easy to misunderstand the requirements.
Harassment and Violence
In many provinces, harassment and violence are dealt with in several different Acts and Regulations. This means that employers must know to look at a number of different Acts and Regulations to fully understand their HR compliance obligations around harassment and violence. Harassment and violence may be dealt with under:
- employment standards
- health and safety
- human rights
The mix of legislation that deals with harassment and violence is different in every province – some provinces only deal with harassment and violence in one act, but others deal with it in two or more acts. For example, in Quebec harassment and violence is dealt with in both the employment standards and human rights acts. An employer who sees a full list of requirements in the employment standards act may not realize that there are also obligations in the human rights act.
Health and Safety Postings
And one last example. Let’s say you are an employer in Ontario and you want to make sure that you have all of the correct postings up in your workplace. In order to make sure you are in compliance, you need to read through 14 different sections in 2 different Acts. And those sections are not grouped together nicely under a heading that says “Postings”, but instead are spread throughout the Acts making it much easier to miss a requirement. Unless you go through the Acts from front to back, and check the regulations, you can’t be sure that you haven’t missed something. For more information on posting requirements, see our previous post.