Essential elements of an effective HR policy manual

Transcription

1 Whitepaper October 2014 Essential elements of an effective HR policy manual Yosie Saint-Cyr, LLB

2 First Reference Compliance & Best Practices Whitepapers 2014 First Reference Inc. First Reference grants permission to individuals and organizations to make copies of any whitepaper as a complete document (including the copyright notice) for their own internal and non-commercial use. No copies may be published, distributed or made available to third parties whether by paper, electronic or other means without First Reference s prior written permission. Please contact yosie@firstreference.com for more information. This whitepaper offers general comments on developments of interest to businesses and is written for informational purposes only. It is provided with the understanding that neither the author nor the publisher nor the legal editors are engaged in providing legal advice. Every effort has been made to ensure the accuracy and timeliness of this information. The authors, publishers and all others directly or indirectly involved with the publication do not assume any responsibility or liability, direct or indirect, to any party for any loss or damage by errors or omissions regardless of the cause, as a result of using this publication. Author: Yosie Saint-Cyr, LL.B., Managing Editor Editor: Adam Gorley First Reference Human Resources and Compliance Group First edition: October 2014 Library and Archives Canada Cataloguing in Publication Saint-Cyr, Yosie, 1962 Essential elements of an effective HR policy manual by Yosie Saint-Cyr. ISSN First Reference Inc Viceroy Road, Concord, Ontario L4K 3A

3 Introduction By neglecting written policies, many businesses are violating employment and labour law without even knowing it. Although not all policies are required by law or need to be in writing, they may help a business know if they are complying with the law or not, and they will certainly help create a clear, fair and consistent framework for workplace relations. For example, some companies manage overtime without complying with certain provisions of the Employment/Labour Standards Act of their jurisdiction (i.e., overtime thresholds, exemptions and special rules for managers). Companies aren t legally required to prepare written overtime policies, but by taking the time and effort to do so, they can verify the legality of their practices and their compliance. Also, did you know that employment standards officers in all Canadian jurisdictions have the power, while investigating complaints or performing random inspections, to conduct a comprehensive audit of your methods, written and unwritten practices, policies and procedures? There may be serious repercussions if they find your policies and procedures lacking. Well written policies can both serve as an effective communication device and help you stay out of court, or at least give you a better chance of preventing unnecessary miscommunications or incidents. This whitepaper aims to help employers, human resources professionals, managers, supervisors and payroll specialists do their due diligence by understanding the importance of having written policies and procedures, identifying the policies required by law, and learning what they need to know to establish an effective human resources policy manual. The case for written HR policies A comprehensive and clear set of written human resources policies offers many benefits. Essential elements of an effective HR policy manual Page 1

4 Consider the amount of time your employees spend asking questions about their rights and your practices, policies and procedures, and how much time their supervisors/ managers spend finding answers and solutions to those queries. Written human resources policies help you communicate to employees your business culture, mission, philosophy and objectives. This allows employees to become aware of their rights and obligations and reduces misunderstandings due to poorly defined working conditions. If a supervisor/manager is constantly telling employees the rules, or how to behave in the workplace, it may be because the HR policies and procedures don t exist, haven t been communicated, or haven t been communicated in ways that suit employees different learning and communication styles. Remember, everyone has to see and understand the policies, not just hear about them second- or third-hand. Furthermore, defining your HR policies ensures uniformity in the management of your human capital and creates clear standards. This has the advantage of placing you in a better position in the event of a dispute. Well written HR policies and procedures allow employees to understand the rules of working for your organization. Some call it a guide or a framework to govern employee relations. These policies and procedures help managers and employees understand what s expected and prevent misunderstandings about how to behave and how things are done within the organization. HR policies and procedures are a good starting point to show your commitment to being fair, reasonable and non-discriminatory to all employees. They will also provide a good foundation for training new employees. Why the need for compliance-based HR policies? HR compliance is a necessity for any business in today s competitive and legal environment. Between employment standards, health and safety, human rights, pay equity, accessibility standards and other laws, a business that is unaware of its obligations and responsibilities is headed for trouble. Page 2 Essential elements of an effective HR policy manual

5 When a business blends its corporate culture with legally mandated HR policies, practices and procedures, it sets the framework for the design and content of a good policy manual. Effective HR compliance needs to be integrated into your business strategies and given more than just lip service. When done correctly, HR compliance is a process a method of defining proper individual and group behaviours, and ensuring that workplace parties understand and follow laws and policies. This means you must know the laws and develop appropriate policies in relation to these laws. Compliance also means you and your supervisors and managers need to communicate to employees, along with your expectations for adherence and the consequences of nonadherence. The latter requires specific investigative and disciplinary procedures. What are the different types of workplace HR policies? There are three kinds of HR policies: Policies required by legislation Policies triggered by a hazard or a common law requirement Policies based on best practices Written policies required by legislation Some employment-related laws include a requirement that a policy be in place and that the policy fulfil certain specifications. Failure to have these policies in place will constitute a violation and an offence under the legislation. The legally required written policies may vary by jurisdiction and by the size of the company. They may also vary because of the industry sector or the needs of the business after a hazard/risk assessment. But in general, the policies expressly required by law consist of: A general health and safety policy showing the employer s commitment to take all reasonable steps to protect the health and safety of its employees, as well as a program to implement Essential elements of an effective HR policy manual Page 3

6 that policy. This policy must be reviewed at least once a year and signed by the highest executive in the organization. Workplace violence and workplace harassment prevention policies and programs to assess the risk of violence and harassment, educate staff and describe how employees can report incidents and how the employer will respond. These policies must also be reviewed at least once a year. A privacy policy (especially in federally-regulated workplaces, Alberta, British Columbia, Quebec, and soon Manitoba) to explain how and for what purpose an employer can collect, use and disclose employee personal information, including measures to safeguard that information. Accessibility standards policies to protect the rights of persons with disabilities with respect to employment, the provision of goods and services and so on. This applies especially in Ontario under the Accessibility for Ontarians with Disabilities Act (AODA), but is forthcoming in Manitoba by law, and is expected to be legislated soon in Saskatchewan, Nova Scotia, Newfoundland and Labrador and British Columbia. An emergency response policy and plan, under occupational health and safety legislation, the AODA and others, to outline the responsibilities and processes associated with ensuring that all employees are able to evacuate a hazardous environment, identifying employees who require assistance in the event of an emergency, and maintaining the environment, equipment and tools used during an emergency response in good working condition. Page 4 Essential elements of an effective HR policy manual

7 Policies that are triggered by a hazard or common law requirement Triggered by a hazard Hazard-specific policies may be express or implied under Occupational Health and Safety legislation or regulations. This means the law or regulations require employers to assess their workplace for potential or existing hazards and develop policies, practices, procedures and instructions to: 1. Communicate the existence of the hazards to employees to prevent injuries or fatalities; 2. Implement control measures such as protective equipment; and 3. Communicate those control measures through policies, programs, instructions and education. These policies will also guide employees on how to stay safe while at work and what to do should an incident occur. Triggered by another requirement There are other policies that may not be mandated by statute but are must-haves because of court decisions (common law). For example, An anti-discrimination/harassment policy is necessary to demonstrate to employees the employer s commitment to building a workplace free of harassment and discrimination, including complaint, reporting and investigating processes. Courts and tribunals have indicated that employers may protect themselves against liability for sexual harassment by preparing clearly articulated written policies that include effective procedures for initiating and responding to complaints. Courts and tribunals also recommend that organizations implement written accommodation policies as an effective and fair way to prevent human rights infringements and respond to human rights issues. Essential elements of an effective HR policy manual Page 5

8 Progressive discipline is another area where case law suggests employers will benefit from implementing a policy. Courts have advised employers in non-union workplaces that progressive discipline policies should include provisions to ensure employees are aware that such policies exist, what is expected and when they will be used before applying the policy. Employees must know that violating a rule or policy could lead to discipline. In addition, a number of court decisions have determined a suspension to be a constructive dismissal where the employer s policy did not provide for the right to suspend, whether explicitly in an employment agreement or a written progressive discipline policy, or implied through past practice. Employers are encouraged to ensure they include progressive discipline language in their employment agreements or policy manuals in order to maintain the flexibility of being able to suspend an employee under the appropriate circumstances. In another example stemming from case law, a court will evaluate if an employer provided an employee with the work rules or policies prior to a violation. It is management s responsibility to prove that the employee knew the rule or policy. The best way to ensure that is to communicate such rules through a written policy. Employment standards legislation also establishes limits on human resources policies and practices. Any HR policies you develop based on employment standards must not provide less than what is offered in the legislation or regulations. The employment standards legislation offers minimum standards; employers are free to develop policies or practices that enhance (provide better standards) what is allowed for in the law. Policies that are best practices These are policies that are not required by statute or common law and are not triggered by a hazard, but that the employer would like to implement and enforce. For example, we are talking about such policies as dress codes, social media, computer and Internet use, recruitment and selection processes, codes of conduct, flexible working arrangements and your payroll processes, among a myriad of others. Page 6 Essential elements of an effective HR policy manual

9 These policies should document and implement best practices appropriate to your organization and communicate values and expectations for how you do things. These policies also help management make decisions that are consistent, uniform and predictable so that they can be enforced if violated. Due diligence No matter the type of policy, to demonstrate that you have met a legal obligation or responsibility and have done your due diligence, it is important to have written policies and procedures, as well as processes. For example, to demonstrate that you have fulfilled your duty to accommodate an employee, your organization must document the process you followed in considering and acting on the employee s request for accommodation. Accommodation policies and procedures are intended for departments and managers to use as a decision-making model, while acknowledging that accommodation must always be decided on a case-bycase basis. As stated by the Ontario Human Rights Commission: The best defence against human rights claims is to be fully informed and aware of the responsibilities and protections included in the Code. Organizations can achieve this by developing disability accommodation policy and procedures as well as by conducting accessibility review. Letting people know the rules and defining unacceptable forms of behaviour makes it possible to avoid costly and upsetting hours in the courts or before specialized tribunals. In that way, strong policies and programs that prevent human rights complaints and help an organization effectively meet its duty to accommodate make good business sense. Best practices in developing HR policies Consistent application and enforcement of workplace policies is the responsibility of human resources, department supervisors and managers. Applying workplace policies inconsistently can lead to consequences that jeopardize business success, for instance, costly litigation, including human rights claims. Essential elements of an effective HR policy manual Page 7

10 Companies that pick and choose which policies to enforce are setting themselves up for failure, not to mention exposing themselves to liability for employee complaints about unfair treatment. Employers that selectively apply workplace policies also risk losing employees due to low morale and overall dissatisfaction. Paying close attention to the following basic HR policy principles should help you turn your policy manual into a powerful tool for workplace management. Education. Due to constant change in the world of HR law, employers must work to stay current, maintain compliant policies and communicate changes to employees. Good and reliable advice. To ensure your HR compliance process is effective, HR staff must have the necessary experience and skills. Organizations that can t hire someone full-time could work with an HR consultant. An employment lawyer is also an excellent source of advice. A written and regularly updated HR policy manual. Prepare your policy manual to meet your present needs and review it on a regular basis to ensure it continues to meet your organization s needs. It is recommended to have your policy manual reviewed by a lawyer before it is implemented. Training for managers and supervisors. Ensure all management and supervisory staff understand why each policy exists, how and when to apply them, and that they are expected to uphold the standards in the policies and act as role models for employees. Training for employees. Ensure employees understand the policies and expected behaviour, and obtain their acknowledgement that they will abide by them. Include policy training in new employees orientation. Provide periodic retraining on policy updates and important issues. Page 8 Essential elements of an effective HR policy manual

11 Listen, monitor and supervise. Employees, managers, supervisors and internal and external experts are all invaluable sources of information on compliance risk in your company. Their advice will help you understand and manage the risks present in your workplace, and ensure your policies are appropriate and being consistently applied and followed. Feedback. Be sure to let staff know whether or not they re meeting policy expectations. Reinforce the importance of following policies to employees and the company s success, and provide opportunities to correct failings and improve weaknesses. Emphasize accountability and the consequences of noncompliance, including discipline. Documenting policies and decisions. Documentation is essential. Neglecting documentation can leave an organization vulnerable to substantial claims of non-compliance. Record and safeguard all policies and procedures, key decisions, employee evaluations, critical communications and personnel details. Essential elements of an effective HR policy manual Page 9

12 How we can help At First Reference, we understand the challenges organizations face when it comes to complying with payroll and employment law and managing staff. We are here to provide that critical assistance. We make compliance easy! That s why we created Human Resources PolicyPro. PolicyPro gives practical information to organizations on how to develop HR policies and procedures regardless of the size or complexity of the business. PolicyPro is useful to those who are just beginning to develop policies, those who are reviewing and updating existing policies, and those looking to expand their policy manuals. PolicyPro offers tools like ready-to-use policy templates and overviews to help you understand the requirements for each policy. If you would like further information on HR policies and compliance, please give Human Resources PolicyPro a try by taking a 30-day free trial, or by calling About the author Yosie Saint-Cyr, LLB, was called to the Quebec bar in 1988 and is still a member in good standing. She practised business, employment and labour law until For over 15 years, Yosie has been the Managing Editor of the Human Resources and Compliance Collection from First Reference and is also the Managing Editor of Accessibility Standards PolicyPro. She contributes regularly to Slaw, Canada s online legal magazine, and CanLII Connects, and manages the Human Resources Professional Association s monthly member e-newsletter, ELAW. Yosie is one of Canada s best known and most respected HR authors, with an extensive background in employment and labour law across the country. Page 10 Essential elements of an effective HR policy manual

13 Products and services from First Reference Human Resources PolicyPro includes a legally compliant policy and procedure and expert commentary on dress codes and dozens of other topics, plus handy forms and checklists, all updated four times a year. The policies are reviewed by the labour and employment team at Harris & Co. LLP and ready to use. The PolicyPro software lets you easily customize policies and procedures, incorporate existing policies, and print, distribute and archive your policy manual. Take a FREE 30-day trial of any of our products! Human Resources PolicyPro The all-in-one policy building resource, where all the researching, writing, and formatting are done for you. QC Edition (EN & FR) Atlantic Edition AB Edition BC Edition MB & SK Edition ON Edition starting at $635* QC $720 Finance & Accounting PolicyPro With over 140 sample policies,procedures, and authoritative commentaries onfinance, corporate governance, operations and marketing, this product will save you $795* time and effort when drafting and updating policies. Accessibility Standards PolicyPro The only product of its kind offering all the resources you need to deal with Ontario s new AODA standards. $675* The Human Resources Advisor Your A-Z manual for complying with employment law in your province. Let the Advisor answer your HR questions. Atlantic Edition Ontario Edition $595* Western Edition Information Technology PolicyPro This product provides a practical and effective way of designing, implementing and reviewing $735* controls over your IT. For more information and to take a trial, visit: