So, on December 9th this year Bill 168, An Act to amend the Occupational Health and Safety Act with respect to violence and harassment in the workplace and other matters, passed Royal Assent. While there are numerous places you can get your hands directly on the most recent copy of the Bill with its many stages of changes, and while there are many places you can get your hands on a summary of the Bill – I thought I would just cover off on some highlights and share some thoughts and opinions.

The Bill, essentially, looks to attempt to make workplaces safer through a number of measures aimed at reducing violence in the workplace. It basically is to take the foundations of already existing harassment & discrimination legislation and workplace policies to a new level by incorporating new legislation and thereby having employers create new policies from an Occupational Health and Safety perspective.

This then introduces remedies to workers such as the right to refuse work where he/she feels the work is unsafe as a result of working in proximity of an individual who may be prone to violence or have displayed a violent past. Sounds reasonable, doesn’t it?

Is there room here for abuse of the right to refuse work? Probably. But, that’s just the start. The legislation lays out precautions employers must take, including the requirement to create workplace violence policies, procedures for dealing with behaviour issues as as well as investigations. It requires the posting of said policies in conspicuous places and a much higher level of diligence in monitoring the workplace for behaviour issues.

Oh, and let’s not forget the employer’s obligation to disclose information about the violent past of a worker to other workers who may have to work with or near the “violent worker”. How much should be disclosed? Good question. While the act does have specific language on this – it basically says that enough information, including personal information, should be disclosed to make the other workers aware of the risk, but not to disclose too much personal information. With 6 months to go until the Act becomes law in June of 2010, I can already hear the personal defamation lawyers salivating and licking their chops. Maybe a good time to start inserting clauses in offer letters to gain consent for disclosure of certain personal information to other employees as a condition of employment. (seriously)

While I am not against Bill 168 and its changes, I do find it very progressive and that it introduces a lot of legal grey areas that must be addressed very quickly and very thoroughly.

I am beginning to think that 2009 has been the “Year of Legislation” for HR professionals. Between Bill 139 with amendments to the ESA, Bill 168 as described above, and pending changes to the Accessibility for Ontarians with Disabilities Act – I am starting to feel more and more like a lawyer of sorts.

OK – One last honourable mention here as far as end of year legal updates goes. About 3 weeks ago, the RCMP removed the right for police departments to access the national criminal database on behalf of 3rd party vendors acting for employers to obtain criminal background checks (apparently in line with standing directives that they had been lenient on in the past, from what I understand). After much backlash, the RCMP apparently did not do a full 180 degree turn on the matter, but maybe a 30 degree  redirect. They decided to allow the checks to be done, but only for police departments to disclose a “clear” or “not clear” on the reports released to the 3rd party vendors, and hence, employers.

So, a couple of issues here. First and foremost – how are employers expected to meet obligations under Bill 168 in relation to investigation and disclosure of risks of violence by employees when access to Criminal Records has been fundamentally blocked. In trying to prevent discriminatory practices, I believe that these actions have made matters worse. While one employer may have hired someone with a theft charge but not a bad driving record, another employer may not care about the theft charge so long as the driving record is clear for a position which requires use of a company vehicle. While I am oversimplifying for demonstrative purposes here – I’m sure you get the point. Now the employers will only get “unclear” and both may decide not to hire, as they do not know the full extent of the history.

An alternate solution may be to have candidates provide their own check. Ummmm, maybe not. Employers were able to obtain them in typically 3 – 5 days. The average individual has to wait about 3 – 6 weeks, pay about $30 – and then, there is not guarantee to an employer that having passed through the hands of the applicant, that the document has not been altered in any way.

These changes are not only affecting employers, but will have a negative impact on not-for-profit and volunteer organizations and their ability to effectively sreen individuals who will be working with “at risk” groups.

We’re just going to have to wait this one out. However, if you have been affected by this, I am curious to hear from you and how you have mitigated your hiring risks through other solutions. Please either comment or write me directly, as this matter is not getting anywhere near the amount of attention it should be.

While I currently am not a staffing agency, am not employed as a contractor to a staffing agency, and do not use temporary help (not at present anyways), I am compelled to post this quick update just in case you have not been paying attention.

Back on May 6 of 2009, Bill 139 passed royal assent in the legislative Assembly of Ontario. You may recall my December 2008 post speaking about the composition of Bill 139 to Amend the Ontario Employment Standards Act as it pertains to the treatment of temporary workers employed by agencies, among other things. Well, as planned, it is now 6 months later and the Bill is officially in force. Are you ready?

The impacts, or rather additional questions about the interpretation of the legislation is outlined quite well in an ERE article on the subject from a couple of months ago.

Some of the biggest “issues” with the legislation deal with how agency workers on assignments are notified of terminating assignments and their rights upon the termination of those assignments. If nothing else, it stands to create much more administration for agencies managing the temporary employees, and likely the addition of costs passed along to clients. Oh, and I bet there is going to be much future discussion on what constitutes an employee versus a temporary employee vs a contractor (age old battle here of what passes the muster of the 4 indicators as set out by the government to differentiate an independent contractor from a contract employee).

Here is a copy of Bill 139 – An Act to Amend the Employment Standards Act, 2000

Here is a copy of Regulation 398/09 – Terms and Conditions of Employment In Defined Industries : Temporary Help Agency Industry

It is interesting to note, and probably worth doing reading on Bill 212 (in second reading and not yet law) regarding mass terminations, and will affect the application (in a positive way) of the impacts of Bill 139 with the Regulation 398/09 amendments. The employment aspects of Bill 212 can be found in Schedule 20.

Happy reading and planning!

It seems that being an HR professional these days is being more than just a “people person”. If you don’t believe so, refer back to such comments as seen in the Fast Company “Why We Hate HR” article. Do a search in my blog to find a post and copy of the article if you have not read either. In the article, there is a quote indicating that (let me paraphrase) if you want to help people, then get a job in the social services field. While HR deals with people, it is very much a function of business.

While I have taken the above entirely out of context, and it could be argued as true or too harsh on many different levels – let’s leave it at that for now. Point is, if you got into HR to simply help people, then you may find yourself in the wrong profession. Yes, part of the job can be that of counsellor or mentor, but these days, many HR people find themselves being a strategist, accountant (budgets), legal expert, negotiator, mediator, office manager, clerk and sometimes a programmer or IT expert. Specifically, I would like to focus this post on the amount of law that seems to continue to creep into the HR profession.

Why do I bring this up? The new #1search string landing traffic in my blog is for Bill 139, the 2008 (proposed) amendment to the Employment Standards Act. While I have already written about the amendment only a fwe short posts ago, I would like to focus a few brief words on effective ways for keeping yourself up to date on pertinent legislation. Essentially, to have a lot of this information come to you, so that you don’t need to go searching for it once it becomes a priority item for you… because you heard it on the news or because an employee brought it to your attention – or in a worst case scenario, because a government official comes knocking on your door with a compliance order.

First and foremost, there are industry publications which may be relied upon. For members of the HRPA in Canada, you have access to the regular delivery of a magazine covering all the hot issues of the day. Not fast enough? Then you can always subscribe to online feeds or attend chapter events. Aside from the professional associations, check with your external legal conusel – odds are that they publish a FREE e-mail newsletter for their clients and they would be happy to put you on the mailing list. If not, you can do a search to find firms that will put you on their list, even if you are not a client. I subscribe to a couple just to make sure I am covered. One, for example, is provided by Osler, Hoskin & Harcourt LLP. Finally, you can take advantage of all technology has to offer. Find blogs that are specific to employment law and subscribe to their RSS feeds.

The benefits of doing the above are not only to stay current on legislative changes, but also on case law. All of the law firm newsletters I mentioned will also send out updates on major case law decisions that may not change statutes, but may have findings or decisions which could set new precedent for future decision in the application of employment law – decisions which could impact proceeding you or your company have presently within the court system or may in the future.

Point is, be informed. HR is not what it used to be, and it requires more “maintenance” on personal and professional development that it ever has. Imagine if your doctor, accountant or personal lawyer did not keep current by reviewing each of their respective industry journals and publications? Please keep reading my blog for revelant information, and I am happy to keep bringing you interesting articles and information. But, I hope I have also provided you with some additional ideas and resources to help get information to you in a faster, more detailed and more reliable manner.