Post-Termination Bonus Entitlement

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Photo Credit – Jimi Filipovski

Bonus entitlement is always a juicy topic. In September the Ontario Superior Court of Justice released a decision that shed some light on the issue of how entitlement to a bonus will be treated where an employer has no formal bonus policy, but a consistent past practice.

In Fulmer v. Nordstrong Equipment Limited, a wrongful dismissal case, the former employee (“Fulmer”) had received a discretionary bonus in each of his six years with the employer.  The employer attempted to argue that their “unofficial” bonus policy was that terminated employees would not be provided with any bonus pro rata or otherwise. In this case there was no employment contract, and the termination letter was silent on both entitlement to a bonus and any performance issues.

The employer argued post-termination that they discovered issues related to Fulmer’s performance, which would have disentitled him to his 2016 bonus, a period during which Fulmer was still actively at work. The judge dismissed this argument, commenting that the employer was simply seeking reasons for which to disentitle the plaintiff from his bonus.

Bonus Entitlement

The judge looked at the employer’s 2016 profitability and awarded Fulmer a $20,000.00 bonus for 2016. While Fulmer argued that he was also entitled to his 2017 bonus during the ten month notice period falling in 2017, the judge determined that because bonuses were calculated at the end of the year, and based on the employee’s positive contributions to the company throughout that year, it was not reasonable to expect a bonus for 2017. Justice Diamon made the following comments, emphasising the plaintiff’s duty to mitigate during the notice period: “I do not find it to be within the reasonable expectation of the plaintiff (charged with a duty to mitigate his losses) to be able to earn a bonus for the 2017 calendar year while he searched for alternative, comparable employment.”

Take Aways

Courts will look to what is fair and reasonable in determining entitlement to bonuses. Simply because a bonus is “discretionary” does not mean that it can be awarded in an unfair or arbitrary way. Courts will look for a bonus process, even in the absence of an official policy.

Where an employer attempts to justify an “unofficial policy” in a way that is not fair, a negative inference is likely to be made as against the employer.

This case serves as a reminder of the importance of the following:

  1. Having a bonus policy that is in writing and including details regarding how bonuses will be calculated and awarded;
  2. Following a formal bonus procedure and doing so uniformly;
  3. Making employees aware of their bonus entitlements and eligibility; and
  4. Addressing the question of bonuses in the employment agreement, including treatment of the bonus on termination.  

As in this case, courts will look to past practice, and what is fair and reasonable, to determine the quantum of a bonus where there is no official policy.

 

Reservist Leave Under the ESA

Poppies

With Remembrance Day just around the corner, this is a brief blog post on the often overlooked “Reservist Leave” provision under the Employment Standards Act (“ESA”).

The Canadian Forces has approximately 21,000 reservist members and these part-time military positions allow those who hold them to work regular jobs and live as civilians. There may consequently be members of the military reserve in your workforce, and these reservists may be called upon for military service. When they are, they are entitled to a special form of job-protection.

What is a Reservist?

A “reservist” is someone who is a member of the military reserve force, meaning that they are not active members unless they are called upon by the Canadian Forces. While they are usually required to participate in training regularly to keep up their skills, they will otherwise have other careers and live as civilians.

What is Reservist Leave?

In 2007 the Ontario government amended the Employment Standards Act to include job protection for reservists. This is an unpaid, job-protected leave.

Who Qualifies?

Under s.50.2(3) of the ESA an employee must have six months of continuous service to the employer to qualify for the leave.

An employee can take a job-protected reservist leave if he or she is deployed to a Canadian Forces operation outside of Canada, or if he or she is deployed to a Canadian Forces operation inside Canada to provide assistance in dealing with an emergency or its aftermath. In cases of deployment to an operation outside of Canada, the leave period includes pre and post-deployment activities that might be required by the Canadian Forces in connection with the operation.

How Long Must the Job be Held For?

An employer is required to hold the reservist employee’s job open for as long as the employee’s deployment lasts. There is no time-limit and an employer will not be able deem an employee terminated, or a contract frustrated, due to the length of the leave.

Return to Work

The employer is required to return the employee to the same position, or a comparable position if the position no longer exists, when the employee’s deployment is over. If the employee is being reinstated to a different position it must be of equal or greater pay to their original position.

The employer can postpone the employee’s return to work date by two weeks in order to make return to work arrangements.

Notice Requirements

An employee is required to provide their employer with reasonable written notice of the beginning of the leave and of the end of the deployment. In circumstances where it is not realistic to provide notice before the leave begins, notice must be provided as soon as possible.

Benefits During the Leave

Unlike the requirements under other types of ESA protected leaves, employers are not required to maintain benefit programs for employees who are on a reservist leave. Employees returning to work are entitled to benefit coverage as soon as their reservist leave ends, this includes during the two week wait period that an employer may impose.

Take Aways

Reservists leave requests will often come on short notice. It is important, if you have a reservist working for your company, to be prepared with respect to how to deal with such a leave. Human Resources Policies should reference reservist leave, and both employees and employers should be aware of protocol, and the employee’s rights, with respect to job-protection and entitlement to benefits during the leave.

The Time We Waste on Sexual Harassment

People at table with electronic devices

Photo credit – Rawpixel.com

Last night I attended a @GirlGeeksTO discussion about sexual harassment at work. The room held 100 diverse women in tech, largely at the earlier stages of their career and keen to continue to develop their professional relationships and skills to advance in their fields.  The #metoo movement has dramatically highlighted on all of our social feeds how prevalent the issue of sexual harassment remains. Last night was no different.

I participated on a panel that dug into what to do when faced with workplace sexual harassment.  Moderated by Melissa Nightingale of Raw Signal, my fellow panelists were HR professional Lorena Pacheco Scott at Ritual and Globe & Mail journalist Kiran Rana.  We followed a panel led by Mic Berman and Tara Rhodes of Grossman Dorland, who had kicked off the event with tooling people up for handling workplace sexual harassment.

What struck me as the most frustrating aspect of the evening was that there were a hundred ambitious young women in the room who still have to divert all this energy to the issue. Women still have to spend all this time finding champions and mentors outside their male-dominated organizations, spend time being annoyed and distracted by the sexualization of our success, sorting through whether strategically this is misconduct we should call out or should we quietly leave to not kill our career and be blacklisted too early, spending time figuring out how to deal with disappointing and unsupportive responses to complaints, and analysing whether this comment, physical interaction or event is sexual harassment directed at me or just a third party act that got me caught in the cross-fire.

All of this leaves women with no option but to be excellent performers every day, to protect against the reality of sexual harassment that otherwise devalues women in the workplace. Do we still really have to earn our way in? Are we not at the point where we can all start at the same position as the other half of the species with the assumption that we have an equal right to be there, and that advancements, raises, and success have nothing to do with sexual favours or fitting into the sexualized stereotypes of how women should be.

I was heartbroken at some of the stories of blatant sexism that is still alive and well for women entering the workforce. And I don’t mean that intangible kind of sexism where you’re not sure if the subtle comment was bad social skills, a failed attempt at humour, or a genuinely held belief that women are less valued. I mean full-out sexualizing women and seeing them as sexual objects first, and as developers, engineers, professionals second (if at all).

I’m in my mid-40s and thought I was the bridge generation between the explicit sexism women endured before me and the enlightened world enjoyed by those after me because of all the battles fought. We’re not there yet. Women still have to waste so much time thinking about this issue, thinking about how to navigate a world still full of male bosses, broculture and colleagues who see the skills and talent second.

What were all the male colleagues doing last night? Certainly not worrying about how to read and not misread workplace signals and actions all day long, nor tooling up to face aggressors, nor learning the HR and legal landscape to file complaints of sexual harassment.

There are of course many male champions in many workplaces, and there were some male allies at the event last night. Many men do stick their head out for their female colleagues. And I definitely think we’ve come a very long way since even the 1980’s – in the full course of thousands of years of women working, a few decades is quick.

But not quick enough. The economy will benefit from the brains and skills that stay engaged and fully part of developing the future’s technology, and the fundamental illogical and unfair pressure put on half the species to figure it all out needs to end.

The upside? A room full of a hundred women were making a whole bunch of lemonade out of their lemons: developing friendships, mentors, advocacy skills, learning about other workplaces and tech developments, networking, developing social & EQ skills, learning some HR law and being supported by peers. How can this not be an incredible foundation upon which to build a thriving economy that includes all genders?

Criminal Records and Employment Law

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Photo Credit – Edu Grande on Unsplash

At SpringLaw we get a lot of questions from both employers and employees about the intersection of the criminal law and the employment relationship. Unfortunately it’s easier, and likely more common, than you might think to get somehow mixed up in a police database or wind up with a criminal record.

Many employers will require some sort of criminal record check as a condition of hiring, or will have policies with respect to their current employees disclosing criminal charges. For the most part Human Rights and Privacy laws do not protect this information.  

Types of Record Checks

In general, an applicant will need to provide the employer with appropriate consent to perform a record check. There are three basic types of record checks:

Police Criminal Record Check

This is the least intrusive level of check and will reveal criminal convictions that have not been pardoned only.

Police Information Check

This check will reveal much more extensive information, including outstanding charges, peace bonds and probation orders, absolute and conditional discharges, family court restraining orders, other court dispositions such as withdrawn charges, police occurrence reports and information about police contact such as 911 calls and police interactions that did not results in charges.

Vulnerable Sector Check  

This check will include all the information in Criminal Record Check, as well as a Police Information Check as well as information about certain sexual and violent offences for which a pardon has been granted.

Discrimination Based on Record of Offences

The Ontario Human Rights Code prohibits discrimination on the grounds of “record of offences”, which is defined as follows:

10(1)  “record of offences” means a conviction for,

(a) an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or

(b) an offence in respect of any provincial enactment;

If an applicant has been convicted and been subsequently pardoned, it would contravene the Code to deny her or him employment, even in part because of the record of offences. However, discrimination based on any of the other information that might show up in a check is not prohibited. This means that where an applicant has a criminal record, or a pending charge for example, they can be denied employment on that basis.

Where the applicant has been convicted and pardoned the Code provides protection. As with all discrimination claims in the workplace, the employment decision at issue need not be based entirely on the ground of discrimination.  For example, an employer may deny an applicant a job for other reasons (over-qualified, lack of specific experience, conservative haircut, etc), but if an applicant could prove that at least part of the decision was based on concerns with respect to his or her record of offences (that is, had she or he been convicted and pardoned), the applicant could have a successful discrimination claim.

Not every applicant will fit with your organization, and that is perfectly legitimate, provided the lack of fit is not in any way based on the Code‘s list of grounds for discrimination.

This can be concerning news for job applicants who may have had some interaction, short of a conviction and pardon, with the justice system.

If you have questions about the intersection been criminal law and your workplace we’d be happy to chat.

 

Tips for Recruiting Online

laptop keyboard

Photo Credit – Markus Petritz on Unsplash

Gone are the days of posting job ads in the newspaper. Like most things these days job recruitment takes place primarily online. It is important for employers to know how to comply with the law in the online environment – human rights, accessibility and in some cases privacy laws will apply. In general, the laws of the jurisdiction where the business is located will govern, though this may be something to consider where recruiting widely for different offices, or where employees will be working remotely.

AODA and Accessibility

Firstly, recruiters needs to be aware of accessibility standards when drafting job ads. For business in Ontario, Ontario’s Accessibility for Ontarians with Disabilities Act (AODA) sets out notice requirements with respect to ensuring that the hiring process is accessible. These include notifying applicants of the availability of accommodations during the hiring process. It is recommended that this notice be built into the language of the job ad. In the online context, the AODA also requires that information be provided in a way that is accessible. This includes standards that speak to the design of a job ad and how the digital information is navigated.  

Human Rights

In all Canadian jurisdictions human rights standards will also apply. In Ontario, under the Human Rights Code, this means that employers cannot ask job applicants questions that would touch on a prohibited ground of discrimination. The prohibited grounds with respect to employment are:

  • Age
  • Ancestry, colour, race
  • Citizenship
  • Ethnic origin
  • Place of origin
  • Creed
  • Disability
  • Family status
  • Marital status (including single status)
  • Gender identity, gender expression
  • Record of offences
  • Sex (including pregnancy and breastfeeding)
  • Sexual orientation

Therefore, even in the online context – craigslist I’m looking at you – a job ad cannot require an applicant to disclose information about any of the above areas . Where an employer requests information about one of these grounds in order to make a hiring decision, they potentially open themselves to a discrimination claim. Where an applicant can demonstrate that they were not hired at least in part because of one of the prohibited grounds, an employer could be subject to damages.

Age

In some jurisdictions there is an exception with respect to age – age in the Ontario Human Rights Code is defined at 18 year of age and older, it is therefore permissible to ask if an applicant is 18+ and, if not at least 18 years old, to ask how old they are. It is also permitted to require applicants to be of a certain age if required by the duties of the job.  For example, where the job involves the service of alcohol an applicant will legally required to be 19+.

Privacy

While Canadian privacy laws are spotty with respect to protecting the personal information of applicants, the following are good general principles to keep in mind:

  • Individuals should be informed about why their information is being collected and how it will be used, stored and shared
  • Information should be securely stored
  • Information should not be kept for longer than is necessary
  • The information of applicants should be kept confidential from each other – for example if there is an interview sign in sheet a new sheet should be used for each applicant so that they do not see the names of those who are also interviewing

British Columbia and Alberta have the most robust privacy laws, but businesses across Canada should consult a privacy lawyer in their jurisdiction to ensure they are complying with standards around data governance.

While it may be tempting to view the web as a wild west free-for-all, it is important to remember that the law still very much applies.

Misrepresentation During the Hiring Process

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Photo Credit – Jesus Kiteque on Unsplash

Employer misrepresentations, such as overstating the benefits program, in an attempt to induce a candidate to take a job can have negative legal consequences.

Negligent Misrepresentations by the Employer

Occasionally, employers might make representations about a job or benefits at the hiring stage that later turn out not to be true. Usually these will not be outright lies, but reflect assumptions, or a lack of accurate information, on the part of the hiring team.

Conversely, the candidate might ask questions that the hiring team is not fully qualified to answer. This was the situation in the British Columbia case, Feldstein v. 364 Northern Development Corporation.

In the Feldstein case, the company made a representations about their disability benefits plan to a sought after candidate. The candidate in question had cystic fibrosis, and anticipated the need for long term disability benefits at some point in the future. He inquired in detail about the company’s plan because this was a very important aspect of his employment compensation, given his condition.

The employer misrepresented the plan, and the employee was later unable to get the LTD benefits he had been assured existed. The company was found liable for the tort of negligent misrepresentation.

Negligent misrepresentation will be made out where:

1. A duty of care is established between the parties:

Employers do owe a duty of care to employees so this is easily established.

2. The representation or statement in question was untrue, inaccurate, or misleading:

The statement with respect to the benefits was inaccurate.

3. The employer acted negligently in making the representation:

The employer should not have answered a detailed question about benefits, but deferred to the benefits provider for clarity.

4. The employee reasonably relied on the negligent misrepresentation:

The candidate in this case took the job only after assurances were provided with respect to the benefits plan. The court concluded that the reliance on the information provided was reasonable.

5. The reliance resulted in damages to the employee:

The employee was unable to get the LTD benefits that he anticipated. The court concluded that he would not have accepted the job but for the inaccurate information provided.

The trial judge awarded Feldstein C$83,336.80 as compensation for lost LTD benefits and $10,000 for aggravated damages.

The British Columbia Court of Appeal upheld the damages award for loss of benefits, but overturned the $10,000 aggravated damages award.

Tips for the Hiring Process

The takeaway from this case is to be careful what you say to candidates during the hiring process. When in doubt, information should be verified before is it shared, and in some cases the hiring team may need to outsource specific questions to ensure that the information provided is accurate.

Drug Policies

Photo Credit - Get Budding on Unsplash

Photo Credit – Get Budding on Unsplash

I blogged about pot in the workplace early this past August – see my post here. The legalization of marijuana made the news again, as Ontario announced its plans with respect to how the legal sale of marijuana will be practically rolled out. Basically, the LCBO will run 150 retail outlets selling marijuana, and it will also be available to purchase online. The mom and pop marijuana dispensaries, which have always been illegal, will continue to be illegal.

Based on my own observations it seems like there are a lot more than 150 of these illegal dispensaries, and it is hard to imagine that 150 government run stores will be able to meet the clear market demand. Concerns have been raised that the black market will continue to flourish, even once these new legal stores open.   

Ontario also announced last week that, for now, legal use of recreational cannabis will be confined to private residences.  Similar to alcohol, it will not be allowed in public places or workplaces.

As I discussed in my previous post, workplace policies may need to be updated based on the changes to the law.

While drug laws in this country seem to be softening, a decision from the Supreme Court of Canada this June seems to have given drug policies more teeth. In Stewart v. Elk Valley Coal Corp the court upheld the termination of an employee for a one time breach of the employer drug and alcohol policy. In the past, a one time breach has rarely justified with cause termination.

The policy in question required employees to disclose any addictions prior to the occurrence of a drug or alcohol related incident. The policy specified that those who did disclose would be supported with treatment, and that those who did not disclose, but subsequently tested positive for drugs or alcohol could be terminated.  

In this case the employee, Stewart, who held a safety sensitive coal mining position, did not disclose his addiction, was involved in a workplace accident and subsequently tested positive for cocaine. During the investigation following the accident Stewart disclosed that he thought he was addicted to cocaine. Elk Valley terminated Stewart’s employment, in accordance with the terms of its policy.

Stewart brought a human rights complaint on the grounds that he was terminated for his addiction, constituting discrimination on the basis of disability under the Alberta Human Rights Act, RSA 2000.

The Alberta Human Rights tribunal held that Stewart was terminated for breaching the company policy, and not because of his addiction, and in the alternative, that discrimination was permissible where there was a bona fide occupational requirement.

Stewart argued that part of his addiction was a denial of his addiction, and therefore it was his addiction that prevented him from complying with the policy with respect to disclosing his addiction. On this point the Tribunal stated, and the Supreme Court agreed, that while he may have been in denial about his addiction he knew that he should not take drugs before working and had the ability to decide whether or not to do so, as well as the ability to disclose his drug use to his employer (and comply with the policy). Denial about his addiction was thus deemed irrelevant.

The Tribunal reached the decision that there was no prima facie discrimination and that the mere presence of an addiction does not establish prima facie discrimination.Stewart appealed to the Court of Queen’s Bench and to the Alberta Court of Appeal, both courts dismissed the appeal. The Supreme Court also upheld the Tribunal’s decision in an 8/1 split.

In many cases, where there is an addiction related issue in the facts with respect to a termination, employers may have felt hamstrung. This case indicates that where the policy is clear, and where the employee has the capacity to comply with the terms of the policy (addicted or not), a termination can be justified.   

Parental Obligations in the Workplace

Photo Credit - Daiga Ellaby on Unsplash

Photo Credit – Daiga Ellaby on Unsplash

For many of us who are parents, September feels like the real New Year.  Workplace issues can arise with respect to shifting childcare obligations, as kids transition from summer schedules to school schedules. Employers may be met with requests to accommodate worker childcare obligations or requests for time off and should be prepared with respect to how to handle these issues both practically and legally.

I’ve blogged about family status accommodation in the past – see my posts here and here. As people delay having children until later in life and once they have more established careers, employers are more likely to be met with requests for flexibility, accommodation and time off from key personnel or managers. Our aging population also means that the demands on many of us, to look after both parents and children, are increasing.

How should an employer respond if an employee suddenly asserts that their normal work hours discriminate against them on the basis as their status as a parent? What if an employee suddenly requests previously unscheduled time off, asserting parental obligations? Here are some of the legal requirements.

Requests for Leaves and Time Off

Under the Employment Standards Act employers who have more than 50 employees are required to provide employees with personal emergency leave of up to 10 unpaid days for illness, injury, medical emergency or urgent matter relating to children and other dependant family members. The expected changes to the Employment Standards Act under Bill 148 are expected to make this leave available to all employees, not just those in workplaces of 50 or more. Additionally, the first 2 days of the leave will be paid days. Bill 148 would also extend the length of unpaid family medical leaves, which would be increased from the current eight weeks in a 26-week period, to 27 weeks in 52 week period. For more information on these changes see my post here.

Discriminating Against Parents

Family status is a protected ground under the Ontario Human Rights Code. Family status is defined as “the status of being in a parent and child relationship.” Employees may, for example, assert that their work schedule or location discriminates against them on the basis of family status where they encounter difficulty meeting their family obligations because of the requirements of their job.

As with other protected grounds employers have a duty to accommodate, up to the point of undue hardship. What exactly this means in the context of childcare has been a moving target in Canada and as with other forms of accommodation, accommodation of family status will look different, depending on the context.

The Legal Test

The current legal test is set out in the Misetich v Value Villages Stores case.  In short, the adjudicator required the employee to establish that he or she is a member of a group protected under the human rights code, has experienced adverse treatment, and that the ground of discrimination was a factor in the adverse treatment (paragraph 43).  The onus then shifts to the employer to establish that the employee cannot be accommodated to the point of undue hardship (paragraph 57).

The case confirmed that the family status test is similar to the discrimination tests set out for other protected grounds. For further details, see my past blog post on this case here.

Practical Tips for Accommodating Family Status

  • Once an employer becomes aware of their employees’ need for accommodation they have an obligation to assist the employee in finding a solution;
  • The employee must actively investigate solutions to their problem, beyond simply changing their work schedule, for example. While it may be an employee’s preference that they be able to pick up their children from school, this is not necessarily something that an employer must accommodate. While substantial childcare obligations must be accommodated, personal preference does not need to be;
  • If a change in the employee’s position or work hours will not cause undue hardship to the employer, it may be an appropriate solution. However, consider how other employees may be impacted; and
  • Always document conversations with an employee requesting accommodation. Include accommodations that were considered and if they were not adopted make sure the notes set out the reasons why.

Family status accommodation remains a relatively new area of discrimination under the Human Rights Code, and while employers continue to struggle with where is the legal, practical and morale line to draw, the one certainty is that employer have no choice but to engage in meaningful conversation, to determine whether the accommodation is required. Blanket denials for business needs are no longer an option.

Labour Day

Photo Credit - Aaron Burden on Unsplash

Photo Credit – Aaron Burden on Unsplash

The first Monday of September is Labour Day (Labor Day to our friends in the States). In Canada, this is a provincial statutory holiday, celebrated in all of our Provinces and Territories. Most businesses will be closed, with the exception of business that fall under provincial retail business holiday acts, such as tourist destinations and many restaurants.

Both in the US and Canada, Labour Day is a day inspired by union efforts to improve the rights of workers. For our US readers interested in learning more about the origins of Labour Day in Canada, I recommend this Canada’s History article.

For more information about Overtime and Statutory Holidays see my post on this topic here.

Transgender Rights and Employer Responsibilities

Trans rights have been in the news a lot lately. During his eventful tenure, President Trump has eroded existing protections for transgendered individuals in the United States. This winter he removed protections for transgendered students in public schools that allowed them to use the bathroom of their gender expression, and not their physical sex. At the end of July, he announced, via Twitter, that transgender individuals would not be permitted in the US military in any capacity.

Rights for Transgendered People in Canada

Photo Credit - Cait's Cafe, Goderich ON

Photo Credit – Cait’s Cafe, Goderich ON

While such protections have been reversing south of the border, protections and recognition of trans-rights in Canada continue to increase. In June 2017, the federal government passed Bill C-16, which added “gender identity or expression” to the Canadian Human Rights Act, and to the hate crimes and sentencing provisions of the Criminal Code. Notably, every province and territory already had these protections in their respective Human Rights legislation, so this move by the feds closes the loop. Indeed, the pioneering Northwest Territories has had gender expression protections in place since 2002!  

Comments in opposition to the Bill included concerns over being penalized criminally for misusing gender neutral pronouns – this is not illegal – and that the Bill would allow those with male genitalia access to female only spaces, possibly endangering women.  This concern has never been supported by evidence, and if anything transgender people face the greatest risk of violence and harassment in sex-segregated spaces.

Supporting Transgendered Employees

Canadian employers are expected to making workplaces safe for trans-people. Areas to consider include:

  • Ensuring the availability of a safe and comfortable washroom;
  • Removing barriers with respect to employer forms or IDs that collect information on sex, and have only gender binary options (M or F);
  • Reviewing content of background checks to ensure they do not “out” employees who have undergone a gender transition;
  • Reviewing uniforms or dress codes policies, although by now, employers are hopefully aware that any sex-based difference in dress code must be legitimately linked to the requirements of the job. If this cannot be shown (it’s unlikely it can), then the dress code is discriminatory anyway.

In all circumstances employers need to be sensitive to their employees safety, and take care to not discriminate against employees who identify as non-binary.

Transgendered Policies

The Ontario Public Service set a good example in 2016 when it instituted a new Gender Identity Policy. This policy limited circumstances in which biological “sex” information could be collected, and instead asks employees about their “gender identity” when necessary. Three options are given with respect to gender identity for display on employee IDs M, F and X for those employees who are trans, identify as non-binary or simply prefer not to say.

Employers should take a look at their policies and practices to ensure that they are not unwittingly discriminating against current or potential employees. If you need help understanding your obligations, or overhauling your practices, we would be pleased to assist.  

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