Canadian HR Reporter

CANADIAN HR REPORTER CANADIAN HR REPORTER April 21, 2014 April 21, 2014 2 NEWS NEWS ACROSS CANADA Kenney investigates fast-food restaurant for labour violations McDonald's launching its own investigation B.C. report makes 15 recommendations to attract natural gas workforce Industry could create as many as 100,000 jobs: Premier 2 more magazines axe internship programs Ontario government crackdown has employers thinking twice about unpaid interns Computer spots fake expressions of pain better than people: Study Could detect deceptive actions in realms of security, job screening AROUND THE WORLD Scores of workers mysteriously fall ill at Cambodian factories Cause under investigation as 118 employees faint, fall sick German cabinet signs off on minimum wage for 2015 New wage will not cover minors, trainees or some interns Competing human rights claims in the workplace Cherie Robertson, a senior policy analyst at the Ontario Human Rights Commission, explains to Canadian HR Reporter TV how creating a human rights policy can prevent confl icts from escalating Recent stories posted on www.hrreporter.com. Check the website daily for quick news hits from across Canada and around the world. WEB O N T H E hrreporter.com FEATURED VIDEO !DVANCING THE,EADERSHIP 3KILLSOF9OUR #URRENTAND &UTURE,EADERS 0QFO&OSPMNFOU1SPHSBNT *O)PVTF$MJFOU1SPHSBNT &YFDVUJWF$PBDIJOH "QQMJFE3FTFBSDI "EWJTPSZ4FSWJDFT .IAGARA)NSTITUTECOM 8FmWF(PU:PVS-FBEFSTIJQ/FFET$PWFSFE $IFDLPVUIPX5IF/JBHBSB*OTUJUVUFDBO JNQBDUZPVSPSHBOJ[BUJPOmTGVUVSFUPEBZ 1IPOF &NBJMJOGP!OJBHBSBJOTUJUVUFDPN service awards peer recognition sales awards performance on-the-spot E m p l o yee R ec og n i ti on S o l u t i o n s www.terryberry.com 800.253.0882 Get Started! recipient falls into one of those ar- eas is not always clear and there are several exemptions where consent is not required at all, he said. "It's going to be necessary for organizations to essentially do a review of their mailing lists and all of their external contacts in order to understand where they have express consent, where they have implied consent and where no consent is required, so systems have to be developed within the organization in order to provide that fi lter." Once CASL comes into force, of course, a person or company can't send a commercial electron- ic message requesting consent, so a lot of employers are scram- bling to obtain consent before the deadline. However, there's a three-year transitional period starting July 1 during which consent to send messages is implied in pre-exist- ing business and non-business relationships. Similarly, consent is implied for the same period for the instal- lation of updates or upgrades to computer programs. "( e transitional period) al- lows you convert your implied consent into expressed consent if that's the consent strategy you wish to pursue. Because express is as good as gold — it doesn't expire until the customer with- draws it and it does away with the tracking that would be required for one-time product purchases," said Kingsmill. Penalties, liabilities Administrative monetary pen- alties for non-compliance, per violation, can range from up to $1 million for individuals and up to $10 million for corporations. Criminal charges can also be laid against organizations that make false or misleading representa- tions regarding the sender or subject of an electronic message, according to Kingsmill. Apparently the government wanted to make the penalties more than the simple cost of do- ing business, said Kuhl, "because certain organizations will take the risk of non-compliance if they feel that the penalty is not very strong and the likelihood of enforcement is very weak." Civil charges would allow businesses or individuals to seek damages of $200 per violation, to a maximum of $1 million per day, said Kingsmill. ere's even the potential for class-action lawsuits down the line. ere is also the potential for personal liability for company offi cers and directors who know- ingly infringe the law. And a cor- poration can be held liable for the acts of its third-party agents and employees, said Nicholson. "If it can be shown that a direc- tor, offi cer or agent of an organiza- tion knew about or acquiesced in a breach of the act, then they can be made personally liable for the penalties… it's akin to OHS leg- islation in that respect. So clearly due diligence is going to be key." Reasonable steps For an employer, it's about tak- ing reasonable steps with a com- prehensive, end-to-end CASL- compliance framework, said Kingsmill. "You would need to have ac- countability and responsibility — someone needs to clearly own the CASL program or the CASL- compliance initiative, and there has to be some kind of governance around it and engaging the right stakeholders or bringing the right people to the table would include your marketing folks, your event planning, your IT, your legal people and your privacy shop to be able to identify the enterprise- wide processes that need to be revised." A CASL policy should also set out the rules of engagement at a very high level. en it's about procedures or guidelines to opera- tionalize the rules, said Kingsmill, which means user-friendly busi- ness language and teaching peo- ple to think before they send. " e greatest impact... is going to be on all of your outbound elec- tronic communications because many of the internal communica- tions will be exempt… so the focus is on prospecting and your captive sales force and your digital mar- keting strategies which may need to be tweaked and revisited." e most critical success fac- tors are training and awareness, so telling employees what CASL means, what the impact is and how to be compliant, she said. "To make it stick, it should be really simple because the legis- lation is so dense and technical in nature." All employees should be trained, even if their roles do not involve sending out commercial electronic messages, said Kuhl. And if there's a breach, it's similar to a breach of personal informa- tion protection legislation. "If an employee is not comply- ing with anti-spam provisions — so sending messages on behalf of the organization in violation of the company's internal anti-spam compliance program — I think that could be cause for not neces- sarily dismissal but certainly for a warning or some ramifi cations in the employee's position as an employee." Employers are also required to keep track of consents and with- drawn consents, said Nicholson. " ere can't be any rogue CEMs — everybody in the organization has to be aware of the CASL com- pliance and you have to make sure that people aren't off on their own, doing their own thing." Recruitment concerns ere's also the question of re- cruitment and to what extent the CASL restrictions aff ect HR's ability to reach out to and com- municate with prospective new employees, either on their own or through a third-party headhunter service, he said. " ere may well be some poten- tial risk in that area… make sure that any third-party headhunter service you retain is CASL-com- pliant," said Nicholson. "Because of the doctrine of vi- carious liability, an organization can't shield itself from liability by interposing a third party in be- tween itself and the recipient of its electronic messaging." But, in the end, the law is not designed to punish — it's intended to go after true spammers, said Kingsmill. "I believe (the government is) going to look at all the facts of the case and they're going to look at your due diligence defence and you would assume that they would ap- ply the reasonable person test." Transitional period around consent Transitional period around consent ANTI-SPAM LAW < pg. 1 "If an employee is not complying with anti-spam provisions, that could be cause for not necessarily dismissal but certainly a warning or some ramifi cations."

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