Province’s sexual harassment NDA ban ‘tricky to figure out’ for HR: lawyer

'Sometimes there's a trickle-over effect, and it's going to impact these other processes'

Province’s sexual harassment NDA ban ‘tricky to figure out’ for HR: lawyer

As part of its ongoing Working for Workers initiative, the Ontario government has announced that it is considering a ban on non-disclosure agreements (NDAs) in the cases of workplace sexual harassment, violence or misconduct.

Minister of Labour, Immigration, Training and Skills Development David Piccini also announced a provincial pay transparency bill and an AI hiring disclosure bill.

“Unfortunately, seven out of 10 workers experience a form of harassment or violence in the workplace, rates that increase for women and gender diverse workers,” Piccini said.

“Our government will be looking at legislative options to restrict the use of NDAs while protecting the rights of victims and survivors. A victim should never be prevented from telling their story because of an aggressive NDA practice of an employer, and perpetrators should never be able to buy their safety.”

Broadly worded legislation can lead to complications for HR

Employment lawyer Amanda Hunter of Hunter-Liberatore Law in Toronto said that while the proposed legislation would have obvious positive intentions, if the language of the law is too general, as some Acts tend to be, it could cause headaches for HR.

“In my mind, this legislation is intended to deal with something that's on the extreme end, an outlier event,” Hunter said. “Here you've got something that's addressing something quite serious. But sometimes there's a trickle-over effect, and it's going to impact these other processes.”

There are many circumstances where employers ask employees or other actors to not disclose details about a harassment claim, ranging from sexual harassment to a worker who is unhappy with a performance review, she said.

But if the language of Piccini’s proposed legislation is too vague, the NDA ban could potentially apply to these other processes, opening up opportunities for “creative” litigation against employers, said Hunter.

Ontario harassment procedures already require non-disclosure

Ontario employers are required to have sexual harassment policies in place. Under Ontario’s Occupational Health and Safety Act (OHSA), Bill 132 (2016) dictated that in the case of sexual harassment claims employers are required to conduct either internal or third-party investigations that include reporting back to the original claimant what the outcomes of the investigation was.

This process includes protecting privacy of parties while the investigation is taking place.

“There are other circumstances where there might be a non-disclosure obligation,” said Hunter.

“There's a lot that goes on in the workplace, managing harassment already, and so I think that's what HR managers are going to be wondering – in these extreme cases where it's obvious, I get it, that that victim should not be required to stay silent in order to get the compensation that she's entitled to, or he's entitled to. But what about all of the other non-extreme cases? How is this legislation going to impact those cases? It's going to be tricky to figure it out.”

Employers should create ‘robust’ harassment policies

NDAs also come into play when an accused party doesn’t agree with the findings of their case, or is fired and wants to dispute it. In such a case, a lack of an NDA could lead to public court cases.

The government will be seeing input and consultation from stakeholders in the coming weeks, Piccini stated, and Hunter strongly recommended employers review the proposed legislation, when released, and look at their own policies and how they interplay. Then, they should participate in the process by offering feedback.

For HR professionals and employers wanting to avoid stepping into sexual harassment cases in the first place, preventative action is the best, she said.

“A good employer will build a robust system where people feel comfortable coming forward and reporting that they've experienced harassment, and then they will have a really good process in place to investigate and determine whether or not that harassment has taken place,” said Hunter.

“The other side of their obligation is that where people are accused of harassment, they should have a process – a fair process – for them to know the allegations against them and defend themselves. And then, once they've made a determination, the employer has to make a decision about what to do with that employee.”

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