Chapter 2 Employment Law

Common Law of Employment

Employment is a contractual relationship. As discussed in Chapter 1, workers agree to make their capacity to work available to their employer in exchange for some combination of wages and benefits. Sometimes the details of the employment contract are recorded in a comprehensive, written form. Other times the contract is entirely verbal. More often, though, the contract is a combination of written and unwritten agreements. For example, an employer might provide a written employment offer that includes a job title, a start date, and a wage (e.g., $25 per hour). There might be a job description (probably outdated and incomplete) supplemented by some verbal promises. There might also be an employee handbook or a set of policies (which might or might not be provided to the worker at the time of hiring) that sets out things such as hours of work. All of the other details, from the dress code to how the employment relationship can be terminated, are left unwritten.

Given the converging and diverging interests of workers and employers, it is not surprising that disputes can arise about the exact terms and conditions of employment. For example, a worker might be hired to work full time (which, in practice, might be 35 hours per week). Later the employer might decide that business is slow and thus offer the worker only 16 hours of work in a week, with a commensurate reduction in wages. The employment contract might be silent on whether and how the employer can reduce the number of hours of work. If the worker and the employer cannot land on a mutually agreeable solution to the dispute, then what happens? Well, the employer can terminate the employment contract (termination is discussed in Chapter 9). But, more typically, the employer will simply impose its preference on the worker (by scheduling and paying the worker for only 16 hours of work). The worker can either accept this or quit and sue the employer for violating (in the worker’s view) the verbal agreement on the hours of work.

When faced with a claim in a matter about which the contract is silent, the courts rely on the common law to reach a decision. The common law is a series of rules about employment that originates from past legal decisions (i.e., it operates on the principle of precedent). These rules give guidance on which rights and obligations exist in the absence of explicit contractual or statutory provisions that say otherwise. Basically, the common law lets judges fill in the blanks when adjudicating a claim in the absence of explicit rules. Given that the common law arises from precedent, interpretation of it can shift over time and in different contexts. Nevertheless, some core obligations are generally accepted to exist.

In the absence of a clear agreement to the contrary (e.g., language in a written contract), employers’ common law obligations include the following.

• • Work and remuneration: An employer must provide a worker with the wages that the two parties negotiated. An employer must provide the worker with the opportunity to work as per their agreement. If the employer significantly alters a worker’s job duties or reduces a worker’s hours, then this is a repudiatory breach of the employment contract. That is, the employer has effectively terminated the worker’s employment.
• • Consideration: An employer that wishes to alter the terms of a contract must gain the consent of the worker and provide that worker with something of value (called consideration) in exchange for the new terms. If a worker does not consent to the change, then the employer can choose to provide the worker with notice that it is terminating the employment contract.
• • Notice of termination: Unless otherwise specified (e.g., a temporary job with a fixed termination date), employment relationships are normally considered to continue for an indefinite period of time. An employer that wishes to terminate an indefinite employment relationship must normally give the worker reasonable notice of termination (or pay in lieu of the notice). An exception is when the employer has just cause (i.e., an acceptable reason) to terminate the employment immediately, such as when the employer catches the worker stealing. Notice and just cause is explored further in Chapter 9.
• • A safe worksite: Under common law, employers are required to provide a reasonably safe system of work. This obligation generally has been usurped by statutory occupational health and safety laws (see Workplace Injury Prevention and Compensation below).

Employers are also vicariously liable for their workers’ actions. That means that employers are responsible for negligent acts or omissions by workers while they carry out job-related duties. This reflects the fact that the employer has the right, ability, and duty to control the worker in the execution of the worker’s job.3

Workers’ common law obligations include the following.

• • The obligations of good faith and fidelity: A worker must act in a manner consistent with advancing the employer’s business interests. For example, a worker cannot normally operate a business on the side that competes with the employer’s business. Workers are also prohibited from behaving in a way that undermines the fundamental relationship of trust that exists, for example by stealing from or bad-mouthing the employer.
• • The duty to obey: Once employed, the worker is the employer’s to command. Although there are common law and statutory limits on what an employer can demand of a worker, generally speaking a worker must obey lawful commands of the employer in the workplace context. Refusing to follow an employer’s lawful orders is considered a form of insubordination and can give an employer just cause to terminate a worker’s employment.
• • The obligation to perform work competently: A worker must normally be able to perform competently the duties assigned by the employer. Gross incompetence or repeated failure to perform work in a satisfactory manner will void the employment contract.
• • The requirement to provide notice of resignation: A worker is required to provide the employer with notice of intention to terminate the employment contract. This requirement is rarely enforced because an employer is usually happy to be rid of a departing worker as quickly as possible.4

These common law rights and obligations are clearly asymmetrical. An employer’s obligations are significantly less expansive than a worker’s obligations. Basically, an employer is required to pay what it has agreed to pay and not to change the terms of the contract without the worker’s agreement. In contrast, workers must do pretty much whatever their employers tell them to do. Indeed, the obligation of good faith and fidelity requires workers to subordinate their own interests (even when they are not working for the employer) to the employer’s interests.

The common law rights and obligations regarding employment were informed by the master and servant tradition, which subordinated workers to employers. The assumption of the subservience of workers to employers remains evident in today’s common law. This legal asymmetry reinforces the labour market power that employers wield over workers. This means, first, that workers must take jobs in order to purchase food, shelter, and other necessities of life, and employers can use the usual surplus of workers looking for jobs to drive hard bargains, and, second, that when workers take jobs they must legally subordinate themselves to their employers.

Sophisticated employers can include language in their employment contracts that reduces their common law requirements. Consider the earlier example of a worker whose boss has reduced the hours of work from 35 to 16. Under the common law, the employer would be in breach of its duty to provide work and remuneration. The employer could offer the worker some consideration to reduce the worker’s hours. A sophisticated employer, however, might have anticipated that it would need one day to vary workers’ hours and included provisions for doing so (perhaps with one week of notice) in the original contract. This explicit contract language would stand in place of the common law and allow the employer to do this.

Any employer that did not have this foresight, but also did not want to offer consideration or pay reasonable termination notice (because that would cut into its profit), could just ignore the common law. That is, it could reduce the worker’s hours and see what the worker does. The worker (who needs a job) might just accept the change or might quit and perhaps sue for breach of contract. But a lawsuit is a slow and expensive process that few workers can afford. The relative inaccessibility of a legal remedy for workers suggests that there is sometimes a difference between the rights that a worker has and the rights that a worker can realize.

This is not to say that workers are without recourse or power. Workers whose bosses change the wage-effort bargain can sometimes force their employers to accommodate their interests. For example, if an employer adds steps to a work process (so that the worker has to work harder to achieve the same output), then the affected worker might just ignore the extra steps or do the job less well. Workers can ignore many employer directives if they are prepared to risk the potential consequences (i.e., discipline or termination). This kind of resistance, whether individual or collective, can pressure an employer to negotiate mutually acceptable terms, such as a different work process, lower production targets, or higher wages.

Statutory Employment Law

Governments sometimes enact laws (also called legislation) that extend or usurp the rights and obligations that workers and employers have under the common law. This statutory law often sets certain minimum terms and conditions of employment and/or empowers government agencies to enforce the law. For example, few workers will sue their employers for stolen wages since it usually costs more than the value of the wages that they would recover and takes years. To prevent rampant wage theft, governments have enacted employment (or labour) standards that require at least monthly wage payments and allow government inspectors to recover stolen wages.

There are 14 different sets of statutory employment laws in Canada: one for each of the 10 provinces and three territories as well as one in the federal jurisdiction. Although that sounds confusing, 90% of workers are subject to the laws enacted by the jurisdiction (i.e., the province or territory) in which they work. Federal employment law affects federal government employees as well as workers in interprovincial industries, such as banking, interprovincial rail and trucking, telecommunications, air travel, and uranium mining.

Typically, a jurisdiction enacts laws addressing

• • minimum terms of employment,
• • unionization and collective bargaining,
• • work-related injury prevention and compensation,
• • discrimination, harassment, and pay equity, and
• • information privacy.

This chapter considers all of these statutory laws except unionization and collective bargaining, which are dealt with in Chapter 10. A sometimes-confusing topic is the role of the Charter of Rights and Freedoms in employment law. Feature Box 2.1 provides a brief overview of how the Charter shapes the content of employment law as well as the behaviour of governments when they act as employers.

Minimum Terms of Employment

All Canadian jurisdictions have enacted laws setting out minimum terms and conditions of employment. These laws are often called labour standards or employment standards and comprise some combination of acts, regulations, and other forms of rules (see Feature Box 2.2). These laws establish certain minimums that most employers must meet related to wages, hours of work, vacations, and other types of leaves. Although this floor of rights is often discussed as universal, some groups of employers and workers are excluded from some or all of the minimums set out in these acts (e.g., professionals such as doctors and industries such as agriculture).

Employment standards legislation also establishes a process by which workers can enforce their rights against employers. This usually involves filing a complaint with the government department charged with enforcing the relevant law. A complaint typically triggers an investigation. This process is intended to resolve disputes more quickly and at lower cost to the worker than a lawsuit.

The rights and obligations set out by each jurisdiction vary, but typically they include setting a minimum wage that employers must pay. This minimum is usually expressed as an hourly rate (e.g., $15 per hour). Some jurisdictions stipulate different minimum wages based on workers’ age or industry. Governments typically also make rules that limit the deductions that employers can make from workers’ salaries (e.g., for cash register shortages or work uniform costs). Finally, governments typically stipulate the maximum duration of a pay period and set out requirements for employer record keeping. Collectively, these requirements are designed to limit economic exploitation and wage theft by employers (see Feature Box 2.3).

Governments also seek to set standards for hours of work. This can include setting a daily or weekly limit to the maximum hours of work, identifying minimum rest breaks during the working day and rest periods between shifts, and placing limits on changes to work schedules. These limits serve both to provide workers with adequate time to perform necessary social reproductive tasks (e.g., eating, going to the washroom, resting, managing a household) and to reduce the incidence of fatigue-related injuries.

Some jurisdictions allow employers to schedule workers to work longer than a normal work day or work week. When workers work overtime, employers must pay them an overtime premium. Overtime is often calculated as some multiple of regular pay (e.g., one and a half times the regular wage rate). The purpose of an overtime premium is to encourage employers to hire more workers (rather than just making their existing employees work harder) by attaching additional costs to overtime. Some jurisdictions allow employers and workers to agree to paid time off in lieu of overtime pay.

Labour standards legislation also normally outlines time that workers can be away from work, either with or without pay. This includes identifying statutory holidays (e.g., Canada Day, Labour Day) and annual paid vacations from work. Workers might also be entitled to other forms of job-protected paid or unpaid leave to attend to civic duties (e.g., jury duty, military leave) and personal or family obligations (e.g., parental, sick, compassionate care, and bereavement leaves). These laws can also limit the employment of minors.

Finally, employment standards laws can provide for temporary layoffs and set minimum notice periods for termination. As noted above, when an employer fails to provide a worker with the work promised, it is considered a termination under the common law. Employment standards laws allow employers to lay off workers temporarily. Temporary layoffs usually have a fixed maximum period, after which the layoff is deemed a termination. Employment standards also set out the minimum period of termination notice that an employer is required to provide. (Employers may also choose to provide pay in lieu of notice.) This minimum termination notice is not the same thing as reasonable notice under the common law. This difference and its implications are considered in detail in Chapter 9.

Work-Related Injury Prevention

All governments have enacted laws designed to prevent workplace injuries. Occupational health and safety (OHS) laws assume that injuries are preventable when employers identify and control workplace hazards. A workplace hazard is any source of potential injury or illness. This can include an object, process, context, person, or set of circumstances (see Feature Box 2.4). OHS laws can also set out specific rules for the control of certain hazards, require reporting of some kinds of workplace incidents, and empower government staff to inspect workplaces and respond to complaints. Finally, OHS laws also grant workers three safety rights.

• • Right to know: Workers have a right to know about the hazards in their workplaces as well as about hazard control strategies.
• • Right to participate: Workers have a right to participate in making their workplaces safer. This right is usually operationalized through joint health and safety committees, comprising an equal number of worker and employer representatives.
• • Right to refuse: Workers can refuse work that they think is unsafe without fear of losing their jobs.

The existence of a right to refuse unsafe work tells us that, sometimes, employers choose not to control hazards. Relatively few workers exercise their right to refuse unsafe work, in part because of fear of retaliation from their employers.10

Once a hazard has been identified, it must be controlled. Employers control a hazard when they take steps to eliminate or reduce the chance that it can result in an injury or illness. The hazards in a workplace can be identified through a process of hazard recognition, assessment, and control. Hazard recognition involves comprehensively identifying all of the hazards in a workplace. Typically, hazard recognition begins by considering the broad context of work (e.g., is it in a remote location? is it outdoors?). It then considers the specific context and tasks associated with the work. This process might include inspecting the workplace, talking with or observing workers, examining job descriptions and workplace records, and perhaps measuring or testing. In identifying hazards, it is useful to specify the hazard in detail (e.g., “benzene” rather than “workplace chemicals”), the type of hazard (e.g., chemical), and the injury or illness that it could cause (e.g., neurological problems, anemia, leukemia). In considering hazards, it is important to be mindful of how the male norm can influence what employers and workers identify as hazardous (see Feature Box 2.5).

Once hazards have been identified, it is useful to consider the risk posed by each hazard. Doing so allows us to understand the hazard better as well as to prioritize which hazard to control first. Risk is a function of three factors: probability, consequence, and exposure. Probability is the likelihood that a hazard will cause an incident. Consequence refers to the severity of injury or ill health that will result from an incident. Exposure refers to how frequently a worker is exposed to the hazard. Figure 2.2 shows a sample hazard assessment form that allows you roughly to quantify the risk of a hazard.

Finally, it is necessary to control a hazard. There are different ways to control hazards. As outlined in Feature Box 2.6, it is useful to think about these different controls as a hierarchy, with those controls at the top of the hierarchy being both the most effective and the most expensive. OHS legislation generally requires employers to adopt the most effective control (i.e., the highest control in the hierarchy) reasonably practicable to implement. The reasonably practicable test is met by taking suitable or rational precautions given the circumstances.

In Canada, workers, employers, and the government all play a role in injury prevention. All Canadian jurisdictions use the internal responsibility system (IRS) to structure their OHS laws. The IRS makes employers and workers jointly responsible for workplace safety and is premised on the beliefs that workers and employers have the most knowledge of hazards in their workplaces and that they share an interest in making those workplaces safer. Under the IRS, workers have an obligation to report hazards to their employers. The employers must then control the hazards, and the workers must comply with whatever controls the employer has put in place. This might entail complying with safe working procedures and wearing required PPE. Some workplaces will be required to have a joint health and safety committee in which employer and worker representatives meet to discuss OHS issues and recommend control strategies.

Workers can turn to the government to adjudicate disputes about whether a hazard has been adequately controlled or whether workers’ safety rights have been violated. The government also typically investigates serious injuries and fatalities and conducts inspections of workplaces to ensure compliance. Where unsafe working conditions are found, government inspectors can issue stop-work orders until the hazard is controlled. In some jurisdictions, inspectors can also issue financial penalties, and all jurisdictions provide for the prosecution of violators, although prosecution usually occurs only when there has been a serious injury or fatality.

Although OHS laws and practices undoubtedly mean that today’s workplaces are safer than they were 100 years ago, OHS is often criticized for being unsuccessful in preventing large numbers of injuries and fatalities. Each year in Canada, the workers’ compensation board (WCB) reports approximately 1,000 work-related fatalities and 264,000 serious injuries.13 Although significant, these numbers include only injuries reported to and accepted for compensation by WCB systems. If you add unreported injuries and injuries that do not have to be reported, then the true number is about 10 times the number of serious injuries reported.14 Ten thousand work-related deaths and millions of work-related injuries provide strong evidence that contemporary OHS is not particularly effective at preventing workplace deaths and injuries. An important factor in high injury rates is low employer compliance with even the most basic OHS obligations.15

Governments acknowledge that non-compliance occurs. They grant workers the right to refuse unsafe work, and they hire inspectors precisely because they know that employers sometimes fail to control hazards. One explanation of high rates of non-compliance and injury is that employers and workers do not actually share an interest in safer workplaces. Rather, employers seek to prevent injuries to the degree that doing so is cost effective (which reflects the operation of the profit imperative). In contrast, workers usually seek the highest level of safety possible (although sometimes they disregard safety measures because of forgetfulness, time pressure, or convenience). This dispute over how safe work should be reflects the broader divergence of worker and employer interests in capitalist economies over who will capture the surplus value of labour.

In theory, the state is supposed to step in and ensure that employers comply with legislative minimums. In practice, inspection programs are underfunded and often have intervals (the time between inspections of any one workplace) measured in decades. And the consequences of non-compliance are low (generally a stop-work order is issued until a hazard is remedied). Even employers who seriously injure or kill a worker are unlikely to receive a financial penalty.

Work-Related Injury Compensation

All jurisdictions operate workers’ compensation systems that provide workers or their families with wage-loss and other benefits when they are injured or killed on the job. Each jurisdiction’s system is operated by an independent government agency called a workers’ compensation board, although the exact name varies among provinces and territories. Workers’ compensation legislation typically empowers WCBs to set policies addressing claims acceptance and benefit levels. Although these policies vary among jurisdictions, all WCBs operate according to the Meredith principles (see Feature Box 2.7).

Workers, employers, and doctors are required to report certain injuries to the WCB, including those that require time away from work, modified duties, or medical treatment and those that resulted in fatalities. The WCB then applies the arises and occurs test to whether the injury arose from and occurred during the course of employment. If so, then the worker is entitled to access a range of benefits, including the following.

• • Wage loss and fatality benefits: Workers can receive financial compensation for wages lost because of injuries. WCBs may limit the rate or total level of compensation. Dependants can also receive pensions when workers die on the job.
• • Health-care costs: WCBs pay for the costs of treating injuries, including reimbursing the public health system or private providers for treatment costs.
• • Vocational rehabilitation: Workers can receive assistance preparing for or finding post-injury employment as well as modifications to workplaces and homes.

In keeping with the Meredith principles, workers’ compensation is funded by employer premiums. They are normally calculated based on an employer’s payroll (e.g., a premium of $1.15 for every $100 of wages paid). These premiums can vary between industry sectors. Industries with higher claim costs have a higher premium rate than do industries with lower claim costs. Some jurisdictions have also established experience-rating systems. Experience rating adjusts an organization’s premiums up or down based on the organization’s injury claim costs. Experience rating is intended to incentivize employers to operate more safely. In practice, some organizations reduce claim costs by (illegally) pressuring workers not to report injuries.18

WCBs also encourage employers to return injured workers to work as soon as possible. This might require an employer to provide a worker with modified duties consistent with any injury-related job restrictions. Return-to-work programs assume that work can be rehabilitative and that returning to work quickly reduces the chance that workers will become permanently unable to work. The evidence supporting these beliefs is mixed. Furthermore, there is evidence that employers sometimes fail to provide a meaningful or safe return to work.19

Discrimination, Harassment, and Equity

All jurisdictions have established human rights laws that prohibit discrimination based on personal characteristics irrelevant to a worker’s ability to perform a job. This prohibition on discrimination operates throughout the employment process, including pre-employment activities such as recruitment and selection. Workers who believe that they have been discriminated against can file a complaint with their jurisdiction’s human rights tribunal or commission. Human rights commissions have broad remedial powers, including awarding damages and directing reinstatement.

There are two main types of discrimination. Direct discrimination occurs when an organization applies different rules or standards to workers. Historically, direct discrimination was common (e.g., barring women or non-white applicants or paying them lower wages). Over time, social approbation of discrimination has reduced (but not eliminated) direct discrimination. Indirect discrimination occurs when a seemingly neutral rule has an adverse effect on some workers based on a personal attribute. The fitness rule applied to Tawney Meiorin in the opening vignette is an example of indirect discrimination: a seemingly neutral rule reduced the chances of women becoming forest firefighters because of innate physiological differences.

When a human rights complaint is filed, an investigator typically asks two questions.

1. 1. Does the behaviour discriminate against a worker on a prohibited ground?
2. 2. If so, then is the discrimination permitted through a statutory exemption or defence?

Not all discrimination is unlawful. The list of grounds on which discrimination is prohibited differs among jurisdictions and has expanded over time as different bases of discrimination have become regarded as wrongful (see Feature Box 2.1). That said, not all forms of discrimination are prohibited. Some jurisdictions specifically allow workers under the age of 18 to be paid less than other workers. In this case, though paying a minor is discriminatory, it is permissible discrimination specifically allowed by a legislature.

Discrimination can also be permissible in certain circumstances. As noted in the opening vignette, a bona fide occupational requirement is rationally connected to the job, adopted in good faith, and reasonably necessary to accomplish a legitimate work-related purpose. For example, requiring a delivery driver to possess a driver’s licence indirectly discriminates against workers who cannot get a licence because of a visual impairment. Such a requirement, though discriminatory, is permissible because being legally able to drive is a BFOR for a delivery driver.

Human rights legislation also places on employers a duty to accommodate. It is a requirement to remove discriminatory barriers to employment. This duty can require employers to modify work duties, schedules, and the physical environment to allow workers to participate equally in work. The duty to accommodate is often invoked when health issues or disabilities limit workers’ abilities to perform some or all of their job duties. But the duty to accommodate is broad and can include accommodating religious observances, addictions, and family responsibilities (see Feature Box 2.8).

An organization’s duty to accommodate ends when the required accommodation meets the threshold of undue hardship, a variable and multi-faceted standard that assesses the point at which further accommodation would pose an unnecessarily demanding level of hardship on an employer. Factors that can influence when further accommodation constitutes undue hardship include organizational size (bigger employers have a greater capacity to accommodate than smaller employers), safety, organizational structure, cost, and morale.

Human rights legislation (and sometimes OHS legislation) also place an obligation on an employer to ensure that workers do not experience harassment, including sexual harassment. Harassment is generally defined as a course of vexatious comments or conduct that a reasonable person would find unwelcome. In this context, vexatious means words or actions that are annoying, distressing, or irritating to the recipient. Although a course of conduct or comments usually requires multiple incidents to have occurred, a single serious incident can be enough to constitute harassment.21 Harassment with a sexual element is often called sexual harassment, which denigrates someone on the basis of their sex and includes sexual comments, leering, invading one’s space, requirements to dress in a sexualized way, and demands for sexual favours. Sexual harassment can overlap with or be distinct from gender-based harassment, which targets an individual based upon traditional gender norms.

Employers can also be subject to legislated employment and pay equity requirements. Employment equity laws require employers in the federal jurisdiction to take proactive steps to increase the representation of women, persons with disabilities, visible minorities, and Indigenous persons (although the act uses the dated and narrower term Aboriginal persons). Employers in all jurisdictions have an obligation under legislation to avoid discrimination in wages on the basis of gender. This requirement mandates pay equality (i.e., that men and women be paid the same for performing the same job in the same organization). Some jurisdictions have also enacted pay equity legislation. Pay equity requires that men and women be paid the same for performing jobs of comparable value in the same organization. This requirement is not uniform across the provinces and territories. Pay equity also requires decisions about which jobs are comparable, and such subjectivity often arouses controversy and resistance.

As an example, the federal Pay Equity Act requires federally regulated employers with more than 10 employees to develop and maintain a pay equity plan. To develop the plan, they must identify job classes for positions in the workplace and determine whether a job class is predominantly male, female, or gender neutral. They then must determine the value of the work performed by each predominantly male or female class, calculate the compensation in each class, and compare compensation between the classes doing work of equal value. This process identifies female-dominated job classes that are paid inequitably. Most importantly, the law requires that the employer increase compensation for those classes over a three- to five-year period to eliminate the inequity. A pay equity commissioner administers and enforces the act.

Information Privacy

HR practitioners are often required to collect, store, use, and share personal information on workers. Personal information is any information about an identifiable individual. An organization possesses personal information about a worker in order to administer the employment relationship, such as a worker’s legal name, address, phone number, social insurance number, dependants, and qualifications or credentials. Organizations can also collect information on a worker through various forms of electronic surveillance in the workplace (e.g., video cameras, keystroke logs) and as part of the performance assessment process. Organizations can also possess information on job applicants in the form of resumés and interview notes.

Broadly speaking, organizations are permitted to collect, store, and disclose personal information when that information is necessary to establish, manage, or terminate an employment relationship. It is difficult to be more specific because the law on workplace privacy is highly variable among the 14 jurisdictions. The common law on privacy is evolving, and only some jurisdictions have enacted privacy legislation relevant to the workplace. Where there are laws, the specifics can differ between public sector and private sector employers. Furthermore, issues of information privacy can spill over into human rights issues, such as when an organization collects seemingly necessary demographic information and that information is then used to discriminate against an employee on a protected ground.22

It is important for HR practitioners to ensure that the collection, storage, and disclosure of personal information is compliant with the rules in their jurisdiction. Managing how an organization handles personal information tends to be particularly important when recruiting and selecting new employees, when a worker requires a workplace accommodation, and when an employment relationship comes to an end. It is also important to be mindful of the collection, storage, and disclosure of personal information on non-employees (e.g., customers, clients, business partners) when an organization is designing jobs. The chapters that follow take up relevant aspects of information privacy.

Conclusion

An important role played by human resource practitioners is ensuring that organizations are compliant with the many rules to which they are subject. The laws regulating employment are an important set of rules imposed on organizations by the state. These rules exist, in part, to make employment relationships more predictable for workers and employers. But these rules also exist to address employers’ profit-driven tendency, in the absence of rules, to organize work in ways that result in social problems, such as injury, economic exploitation, and discrimination. These problems can be politically and socially destabilizing enough to warrant government intervention.

Although it is tempting to frame governments as referees between the interests of labour and those of capital, this might overstate the neutrality of the state and the effectiveness of the system. Enforcing the common law requires expensive litigation out of reach of most workers (particularly low-wage workers). Government enforcement of statutory laws is generally weak and can even incentivize employers to break those laws. This suggests that the state is interested in benefiting from the appearance of being a neutral party, but in fact it allows employers significant latitude to operate until and unless their behaviour generates social disruption.

In theory, non-compliance with these laws can generate legal consequences for employers. In practice, the real risks of non-compliance flow from the possibility of reputational harm. Consider the 2013 case of Strange City, a tattoo parlour in Edmonton. The owner had been paying workers their wages with cheques that it had insufficient funds to cover (thus, the cheques “bounced”). The staff responded by seeking employment elsewhere and then picketing walk-in traffic at Strange City. They would tell potential customers about the poor treatment of staff and hand out discount coupons for other local tattoo parlours. Strange City went out of business in a few months.

The effectiveness of this worker pushback reflects that laws also serve a normative function. That is, they set out which employer conduct is considered acceptable and which is considered unacceptable. Organizations that violate the law might well evade legal consequences. But workers might still be able to apply powerful pressure on employers, particularly if the workers are prepared to risk discipline or termination. It often falls to human resource practitioners to help organizational leaders see the full range of potential consequences that employment decisions entail.