Cross-Country Developments in Employment Law: Key Insights

Employers face many challenges when managing their workplaces and workforces, from dealing with complex workplace investigations to addressing key diversity and inclusion considerations and staying updated on relevant case law and new regulations. This Five Under 5 article explores five current issues and developments in today's ever-changing human resources environment.

Investigations. Workplace investigations can stem from health and safety obligations, human rights issues, and dismissal claims, for example. In conducting investigations, employers must understand legal parameters, assess complaints, and plan thoroughly. Best practices include updating policies, training staff, maintaining thorough documentation, and considering legal privilege in potential litigation scenarios. Choosing the appropriate investigator and investigation process and ensuring impartiality are also crucial. 

Employment Agreements. Recent court decisions have significantly impacted the enforceability of termination provisions in employment agreements, highlighting the necessity of regular reviews and updates. Employers must ensure their agreements reflect current legal standards to remain compliant and minimize the risk of disputes and potential litigation. 

Artificial Intelligence. AI is increasingly used in the workplace for various applications, including recruitment. While it can enhance efficiency and productivity, it can also bring legal and regulatory challenges. Employers must stay informed about emerging laws, which may mandate logging, monitoring, and human oversight to ensure compliance and mitigate risks such as potential bias, privacy and cybersecurity concerns.

EDI. Equity, diversity, and inclusion (EDI) are critical in the workplace, with differing trends in the U.S. and Canada. Canadian employers must navigate unique legal frameworks, including special program provisions in human rights legislation. Key legislative developments include pay transparency and accessibility laws. Collecting diversity data requires careful consideration of human rights and privacy laws, emphasizing consent and anonymization.

French Language Requirements. Recent amendments to the Charter of the French Language in Quebec impose new requirements on employers regarding language use in the workplace, including in job postings and communications with employees. Among others, employers are now required to proceed to a three-prong analysis to validate a language requirement that an employee speak another language than French before imposing such requirement.

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