A recent New York Times article about the workplace culture at Amazon has spurred increased debate about the value of so-called “purposeful Darwinism”, in which competitive pressures (both internal and external to the workplace) and grand ambitions foster a cut-throat and gruelling workplace environment that leaves employees struggling to keep up or out in the cold.
Being at the top of any field, some would argue, demands this type of attitude and requires employees and managers who settle for nothing less than the best. When a company operates in a fast-paced, high-stakes industry that rewards continual improvement, hyper-efficiency, precision, and immediate satisfaction, there may be very little room for either error or rest. In exchange for a few years of catering to extraordinary expectations, employees receive above-marker compensation, responsibility, and experience that they might not gain in a less exacting workplace. This assumes, of course, that employees have the option of moving up or moving on, which is often more true for white-collar employees than blue-collar ones.
On the other hand, some companies appear to have achieved remarkable growth while maintaining a positive space for employee engagement and encouraging a more even work/life balance – on the whole, even if not day-to-day. For these companies, corporate sustainability extends beyond ensuring a healthy profit margin and minimal carbon footprint. Rather, it also involves ensuring that key talent can be attracted, encouraged, and maintained and that the diversity of the workforce is harnessed and propelled into innovative ideas and approaches. This attitude towards employee relations may require sacrificing short-term gains for potentially long-term viability – a cost that some employers, particularly those with demanding shareholders, may be unwilling or unable to pay.
Employers’ Legal Obligations: Just One Factor in the Equation
In the end, the “correct” strategy for any particular company is likely to be influenced by a number of factors: legal requirements, employee demands, the opportunity and transaction costs of high turnover, industry practice, market forces, shareholder pressure, consumer or client expectations, and the “naming and shaming” that comes with negative publicity, to name a few. But as employers struggle to find their proverbial “sweet spot”, there are a few important points to keep in mind from a legal perspective.
First, Canadian employers are subject to provincial or federal labour and employment laws, which set out minimum standards for virtually all employment relationships. Unless a specific employee is exempt from the applicable legislation in his or her province, companies will be expected to abide by certain rules regarding wages, hours of work, overtime, vacation leave and public holidays, and leaves of absence, among other topics. The laws vary slightly across the country and some are more generous than others – in Quebec, for instance, an employee is entitled to a paid one-day leave of absence on his or her wedding day, if it falls on a regular working day.
Where an employer violates these rules, it can face penalties, as well as being required to provide the affected employee with any outstanding entitlements, such as unpaid wages, vacation pay or overtime pay. If the employer is a corporation, its officers and directors may also be held personally liable for any violation of the laws, which can lead to fines and/or imprisonment for serious or repeated offences.
Second, each Canadian province has human rights legislation that protects employees from discrimination in all aspects of the employment relationship, including hiring, promotions, and termination. While employees are not protected from general unfairness, where an employee believes that a negative decision was made, in whole or in part, on the basis of a “prohibited ground of discrimination” (characteristics such as race, sex, sexual orientation, religious beliefs, family status, criminal record, and social position), he or she may file a complaint. If the employer is found to have discriminated against the employee, potential remedies may include reinstatement, financial penalties, and other actions intended to root out and combat systemic problems.
It is worth noting that Canada’s human rights laws impose positive obligations on employers, as well as negative ones. As one might expect, companies must refrain from engaging in direct or indirect discrimination – indirect discrimination being workplace rules, policies or requirements that disproportionately and unfairly affect groups of people who share a certain protected characteristic. However, employers have an additional duty to accommodate employees to the point of undue hardship. Where an employee has a disability, for instance, employers must take steps to assist the individual’s work efforts. In some cases, accommodation may require minor changes to the employee’s workspace, work arrangements, or job duties. In other cases, employers may be asked to consider temporary or permanent reassignments. In all cases, the employer would be prohibited from using the employee’s disability as a reason for discipline, demotion or termination unless the necessary accommodation would meet the high threshold for “undue hardship”.
Third, occupational health and safety laws in particular provinces have recently been revised to address workplace violence and harassment, which includes not only physical injury but also bullying and intimidation. Under these laws, employers are required to take all reasonable steps to minimize the risk of harm that may arise in the workplace. In addition to traditional workplace hazards, employers now have an obligation to protect employees from workplace violence and harassment and to address such issues whenever they arise.
Fourth, privacy laws in certain provinces restrict employers’ collection, use, and disclosure of employees’ personal information. Such restrictions would protect against, for example, the unauthorized disclosure of information during a workplace-wide feedback or evaluation session. In other provinces, the tort of “intrusion upon seclusion”, which protects against reckless and offensive invasions into one’s private affairs, should give employers and co-workers pause before attempting to “dig up dirt” on employees for use in or out of the workplace.
Finally, there are a number of common law torts that employees may rely upon where an employer’s or co-worker’s conduct is particularly egregious but does not relate to labour standards or human rights laws. For instance, the tort of “intentional infliction of mental distress” may apply where an employer has, intentionally or recklessly, carried out an outrageous act that caused the plaintiff severe emotional distress. Additionally, courts have recognized a duty of good faith in the manner of termination and have awarded damages against employers who engage in bad faith conduct or callous treatment when dismissing employees. Of course, where a manager or co-worker’s conduct moves beyond bullying and takes on a physical element, civil lawsuits and/or criminal charges may also be brought.
Floor or Ceiling?
The statutory protections offered to Canadian employees are wide-ranging and relatively comprehensive, and are bolstered by common-law torts on which employees can also rely. Still, the fact that governments have established minimum standards does not prevent employers from providing greater rights or benefits. Therefore, the question that remains for each employer is whether these legal protections should represent the floor or the ceiling in their workplace relationships. The answer, as noted above, will depend on the weight that employers give to each of the competing factors in the equation. To be fair, the process of balancing those factors and implementing any necessary changes may be a daunting challenge. However, recent debates offer proof that companies cannot shy away from the struggle.