Respect in the Workplace Policies: An Employer’s Starting Point for DEIB Initiatives

Employers often state that promoting DEIB initiatives is a top priority, and they ask us how best to improve on the start they’ve made (or how to get on board in a meaningful way for the first time). For those less versed in this space, DEIB stands for Diversity, Equity, Inclusion and Belonging. The ‘belonging’ component is a more recent addition to the acronym. According to Gallup, in a ‘culture of belonging’ employees are appreciated for what they bring to the group, there is a genuine desire for meaningful relationships, and there is an appreciation for the differences between people. In addition to leading to a happier workplace, it’s no surprise that fostering a culture of belonging makes good business sense. Gallup found that if more employees believed that their opinions counted, “organizations could reduce turnover by as much as 27%, safety incidents by 40%, and increase productivity by 12%.”

DEIB Workplace Policy

A growing community of recruitment and HR professionals and consultants are promoting and advancing  DEIB initiatives by sharing innovative tools and resources – e.g. AI communication coaching providing private, judgment-free feedback on our unconscious biases (we have them!); quizzes or surveys to assess whether we understand and how we perceive the concept of belonging at work; DEIB courses on having a more productive dialogue about diversity; roadmaps for highly engaged employee resource groups (ERGs), and so on. While there is a loooong way to go, the growth in this space is impressive. 

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Employers Can Create Win-Win Scenarios by Facilitating Re-employment for Ex-Employees

Common Law Notice 

Upon termination of employment, if an employee’s contractual entitlements are not nailed down in an up-to-date and enforceable employment contract, the employee is likely entitled to common law reasonable notice (or pay in lieu of notice) of termination. Even if an employee’s entitlements are set out in an employment contract, it is common these days for employees, on the advice of employment law counsel, to claim that some of the contract’s termination-related provisions are not Waksdale-proof, and are therefore unenforceable. (We discuss how employers can make their contracts Waksdale-proof in this blog, and best practices for rolling out updated contracts in this blog). Under both scenarios, any path to resolution will start with an assessment of the common law notice period.  

Employers Facilitating an Ex-Employee’s Re-Employment Create a Win-Win Scenario

Courts consider several factors in determining an employee’s common law notice period (i.e. the number of weeks or months of pay to bridge the employee until their next role). The primary factors are known as the Bardal factors: 

  1. the employee’s age; 
  2. their length of service; 
  3. the character of their employment (i.e. the seniority/level of responsibility of their role); and 
  4. the likelihood of finding comparable employment (i.e. an assessment of the job market). 

A simple way to understand the common law notice period is to conduct a thoughtful and informed analysis of how long it will take the employee to re-employ in a comparable role. 

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The Power of An “If You Get Another Job Clause”

termination clawback clauseIn recent months, we have seen a spike in group terminations. For HR professionals this often means a packed schedule of the worst-of-the-worst meetings. In our recent blog post, we discussed terminations with softer landings (and less chance of disputes and litigation), and bigger-picture best practices for those difficult exits. In this blog, we zero in on an aspect of severance package drafting.

In the process of structuring severance packages for (too many) employees, we’ve noted that some employers have forgotten about a handy clause that can lead to a win-win post-termination scenario for both employers and employees. However, the clause gets a bad rap because it is colloquially known as a “clawback clause” and can be misinterpreted as a sinister employer strategy.

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Softer Landings Save Time, Effort and Legal Fees for Employers and Employees

termination process and employee entitlementsMany HR professionals say the toughest part of their job is employee terminations. No surprise there, and it’s usually no day at the beach for the exiting employee either. Mapping out the termination process and employee entitlements in advance will reduce the sting of terminations for both sides. 

It Pays to be Nitpicky!

Another reason to have all ducks in a row: courts have awarded additional damages for aspects of the manner of dismissal that may seem a little nitpicky. A few examples: an employer’s failure to provide a written termination letter, late statutory payments, miscalculations in statutory amounts, and inaccurate ROEs. Courts have also called employers out for failing to explain an employee’s rights in a termination letter. All the more reason for employers to tighten up their termination process and termination letter template.

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Waksdale Reviews Spark Joy

employment contracts Waksdale reviewA new year often means some level of house-cleaning by employers, including the updating of core workplace documents. SpringLaw has seen a spike in this work because many employers understand, now more than ever, the need to have their employment contracts reviewed, with a particular focus on termination provisions. This review should include any ancillary policies, Codes of Conduct, or plan documents referencing when and under what circumstances an immediate termination for cause can occur. We refer to this as a ‘Waksdale review’ because it is driven by the court’s reasoning in Waksdale v. Swegon North America. For legal nerds, our prior blog details why a Waksdale review is necessary.  

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Employers: There’s no need to record employee termination meetings

recording employee termination meetingsAn employer recently asked whether it would be helpful for them to record a sensitive employee termination meeting and, more broadly, whether this is a recommended practice for routine terminations. In this particular case, the logistics of having a second person attend as a witness were tricky, and the employer was also looking to be more efficient by having only one person conduct the meeting.

In remote work environments, it’s easy to secretly record meetings.  In most cases, however, there is more to lose than gain by recording a meeting without the other person’s consent. Obtaining consent is of course always an option, but that usually changes the tone and content of any meeting, making the recording a less useful exercise.  

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