Unlike many other areas of the law, employment and human rights law lets me dig into cultural differences, individual perceptions of reality, and some of the universal truths that unite us all. I love that just a couple of kilometres/miles south of Toronto, and in fact, just across Lake Ontario, there are often such different expectations in the workplace.
In the Canadian employment law bootcamps I’ve done for US employers, it is perhaps the assumption that Canadians and Americans share a relatively common culture that gives rise to the interesting reactions when differences do arise. I’ve blogged about this before (see my FAQs for US Employers in 2011), but want to share some of my more recent observations.
- No At-Will: The fact that most States in the US are “at-will” jurisdictions is perhaps no surprise to most employers who deal with employees on either side of the border. What is a differential, however, are the underlying employee expectations in Canada and the extent to which this impacts termination package negotiations. Canadian employees expect big termination packages and will more regularly push back on termination settlement offers, in part because of a friend of a friend’s fourth cousin (yes, it is usually only 3 degrees of separation in Canada) who apparently got a huge package.
- Expectation of Privacy in the Workplace: Canadian privacy law is closer to the European model, whereby an employee always retains a residual expectation of privacy in the workplace, even on employer-issued equipment. Workplace policies can diminish but cannot entirely eliminate employee expectations of privacy on their work issued computers and devices. Unlike many US States where an employer’s computer and email systems are clearly property that the employer can regularly monitor without notice to an employee, in Canada, there will always be the extra layer of employee privacy rights that will require an employer to slow down and be mindful of privacy issues.
- Non-Competition & Non-Solicitation Agreements: Post-employment obligations are a huge topic on its own, but suffice it to say here that there are several differences not just between the US and Canada, but between various locations within our respective countries. In Canada, the courts generally try to balance the interests of an individual’s ability to earn a living with an employer’s proprietary rights – neither party trumps automatically. While it is typically more difficult to enforce a restrictive covenant in Canada than in many States in the US, on the other hand, there is no blanket rejection of such provisions as there is in California. And then there’s Quebec, where such provisions are addressed in the Civil Code and on the face, valid, subject to various factors regarding the extent of the restriction, except in “without cause” terminations, where such provisions are generally not enforceable. In other words, this is an area where it will be difficult to find commonality among workplaces in various jurisdictions.
- Parental Leaves: Yes, most employees are entitled to a year of unpaid parental leave in Canada, along with a government issued benefit insurance program. And yes, so can men! And yes, this can be a real pain in the neck to some businesses, but until we can procreate and breastfeed our babies virtually, I’m not sure what is the alternative.
There still remains more commonalities than differences, but the nuances are what makes the cultural discussions so engaging.