Why Should My Company Hire an Employment Lawyer?

In the life cycle of a business, there are many points where the assistance of an experienced legal advisor can be invaluable.

When the business is an active ongoing concern, one area that can frequently become tricky to navigate without guidance is employee relations.

Below are some critical areas where consulting an employment lawyer can help you understand your obligations, avoid pitfalls, and promote a healthy work environment.

Hiring

carrying out interviews, employers should be cognizant that BC’s Human Rights Code contains specific language prohibiting advertisements that indicate any limitation, specification or preference based on a prohibited ground of discrimination. Prohibitions targeting discriminatory practices in choosing who to hire, whether to continue to employ someone, or in setting conditions of employment, are also set out in the legislation.

An employment lawyer can advise companies on best practices during the hiring phase to ensure compliance with the requirements of the Act, and help them avoid becoming the subject of complaints or proceedings before the Human Rights Tribunal.

Negotiating Employment Contracts

The employer/employee relationship operates within certain parameters agreed to at the time of hiring. These parameters cover important terms, including salary, title, nature of the work to be performed, and benefits, that will govern the way the relationship operates throughout the employee’s tenure with your business.

However, employment contracts also tend – wisely – to include clauses that affect how the parties will deal with each other when the employment relationship ends. Matters such as termination notice, severance, non-compete and non-solicitation obligations, which may not be top of mind during the excitement of hiring, can become crucial to managing the expectations when the time comes for the parties to go their separate ways. An employment lawyer can help you craft an agreement that makes reasonable provision for that eventuality.

Payroll and Benefits

Although the employment contract governs many aspects of the relationship, legislated standards also play an important role in defining the rights and obligations of both employer and employee. With respect to salary and benefits, BC’s Employment Standards Act provides rules related to the following matters, among others:

• Minimum wage that employers may pay their employees;
• How wages are paid;
• Types of deductions an employer may make from wages;
• Records that must be maintained and statements that must be given in relation to payroll matters;
• Limits on hours of work;
• Entitlements to holiday pay, overtime pay and statutory holidays;
• Entitlement to various types of leave, including bereavement, maternity and parental leave.

These and other matters governed by the Act cannot be contracted out of – meaning that the employment contract cannot stipulate a condition that sets a lower standard, or deprives the employee of the benefits provided for in the legislation.

As many of these rules are complex, it is helpful to have the guidance of someone experienced in navigating their ins and outs to ensure your company stays on side.

Employee Relations and Discipline

Employers are responsible for establishing and maintaining the policies and procedures that keep the workplace running efficiently and effectively. While the majority of employees will interact with co-workers and carry out their roles in satisfactory ways, when that is not the case, the employer has important decisions to make.

Different procedures may be called for depending on whether the situation involves incompetence (the employee lacks skills or ability) versus misconduct (the employee breaks rules). In either case, determining the appropriate course of action involves assessment of factors including the severity of the problem, whether it is a recurring issue, its effect on workplace efficiency, and how it affects other employees.

Employers also have an obligation to maintain a workplace that is free from violence, harassment and sexual harassment. Best practices in this regard may involve establishing policies setting out expectations with respect to employee conduct, and procedures identifying how violations will be dealt with.

A failure by an employer to effectively address incompetence or misconduct is not only detrimental to business productivity, but may also give rise to a human rights complaint or a civil suit. An employment lawyer can assist both with decisions about the proper handling of concerns when they arise, and with the creation of policies and procedures designed to operate more proactively.

Workplace Safety

British Columbia laws also require employers to implement measures designed to protect employee health and safety in the workplace. This aspect of an employer’s obligations is governed by the Workers Compensation Act and its associated regulations.

Respecting obligations under this aspect of the legislative scheme may require an employer to adopt explicit policies and procedures, and ensure that they are carried out. Among other things, employers are well-advised to implement measures that do the following:

• ensure workers receive appropriate training and have the skills necessary to their job;
• provide competent supervision and oversight;
• make workers are aware of potential safety hazards and implement appropriate safeguards;
• provide safety equipment;
• identify hazardous materials and ensure proper labelling and handling;
• investigate injuries and incidents;
• establish a health and safety committee or representative;
• meet all requirements stipulated in the relevant legislative provisions.

Termination

Termination is frequently an emotional event for employer and employee alike. Wrongful dismissal claims are one of the most disputed areas in employment law. Without a full understanding of the employee’s entitlements, there is a risk of handling an already sensitive situation in a manner that makes matters more complicated.

BC’s Employment Standards Act provides employees with a basic amount of termination pay. However, most employees are entitled to more than that minimum amount, based either on the terms of their employment contract, or on principles arising from judicial precedents. An employment lawyer can help you assess how much severance a given employee may be entitled to.

Termination pay in lieu of notice is not owed where an employee is dismissed for just cause. However, establishing just cause requires detailed documentation, and is not always straight-forward. Again, an experienced employment lawyer can help you assess whether you have a sufficient basis to assert just cause for dismissal, and relieving your company of the obligation to give notice of termination or payment in lieu thereof.

Litigation Counsel

Everyone hopes to avoid ending up in court, but sometimes it happens anyway. If you have already worked with a lawyer in relation to your hiring and termination decisions, creating policy and procedure manuals, or other matters affecting your employee relationships, you have probably been operating with a good understanding of your obligations. This makes lawsuits less likely; it also means that even if a claim is filed against your company, you may be in a reasonable position to defend it.

In reality, most lawsuits settle before seeing the inside of a courtroom. An experienced employment lawyer will be able to facilitate negotiations with opposing counsel, and can ensure that you fully understand your rights and obligations all the way through the process, giving you the best opportunity to achieve an outcome that you can feel satisfied with.

The Take-away

Employers have enough to do just operating their business. Consulting an employment lawyer in relation to some of these key issues can mitigate potential areas of concern and help you keep your focus where it belongs.