Canadian Employment Law Today

6 | | June 25, 2014 June 25, 2014 Canadian HR Reporter, a Thomson Reuters business 2014 Cases and Trends Cases and Trends July, organizations sending CEMs from or to Canada will need to have secured the consent of those recipients if they wish to continue sending them messages. Consent needs to be sought immediately because, af- ter July 1, even messages requesting consent will be considered spam. ere are several exemptions to the law. An organization may still send emails to existing or potential customers with whom there is an ongoing business relationship, or who may have requested information or lodged complaints about goods or services. Also exempted are messages sent to en- force a legal right such as a contractual ob- ligation or to collect a debt or, in the case of a third-party referral, where that individual has an existing personal or professional re- lationship with both the sender and recipi- ent, subject to certain conditions. Off enders risk high fi nancial penalties Many CEOs will presume that the Canadian Radio-Television and Telecommunications Commission (CRTC) — which is charged with enforcing the act — will focus its atten- tion on egregious off enders. at remains to be seen, but monetary penalties are unusu- ally high, topping out at $10 million per vio- lation for corporations and $1 million per violation for individuals, including offi cers and directors of companies personally. e legislation also permits criminal charges to be laid in cases where organiza- tions are alleged to have made false or mis- leading representations regarding CEMs. In addition, as of July 1, 2017, CASL will allow private rights of action, meaning any person aff ected by a violation of CASL can sue for actual and statutory damages. At fi rst glance, CASL seems like an IT challenge — namely, when considering the requirement to track recipient consent ei- ther manually or through a customer rela- tionship-management (CRM) platform. In reality, however, the legislation will signifi - cantly impact human resources because in many cases, companies lack clear, formal- ized policies governing how their employ- ees market or sell to current or prospective customers. In other words, CASL will create a signifi cant ongoing compliance challenge for many Canadian companies — particu- larly those with sales employees who man- age customer accounts or who conduct regular business-development, networking or promotional activities. Protective steps for employers As with any HR law challenge, this one needs to be put into perspective. CASL doesn't have to derail carefully-crafted sales and marketing initiatives — it could, in fact, improve them. What it will require is a set of sustainable measures that control the transmission of every CEM originating from the organization. ese measures will also help the organization establish the nec- essary due diligence defence to successfully defend against any possible CASL violation, investigation or complaint. Organizations should: Obtain express recipient consent imme- diately. ere simply isn't time to waste in obtaining the gold standard of express per- mission from CEM recipients because any request sent after July 1 requesting consent will be considered spam. Not sure where to start? It can be as simple as sending an email to a contact — such as an e-newsletter re- cipient, for example — requesting express permission to continue receiving messages. Whether that process is managed using simple direct emails or a customer relation- ship management platform, all email con- fi rmation must be archived in the event the organization is audited by the CRTC or is challenged in court by another corporation or individual. Identify compliance gaps. Virtually ev- ery organization that sends CEMs will face compliance gaps as they attempt to meet CASL requirements. at's to be expected. e fi rst step is identifying those gaps by mapping out the organization's various IT, sales and marketing processes (assuming they're formalized) and working with indi- vidual employees to assess their daily busi- ness practices. It's only by taking these criti- cal steps that an organization can begin to address the compliance challenges posed by CASL. Update policies. One of the benefi ts of CASL is the opportunity it provides to better understand and formalize sales and market- ing processes across the organization. at includes developing new policies to regu- late CEM transmission. Bear in mind these new policies could raise the ire of employees used to simply fi ring off emails at will. It's the reason they need to make sense in the con- text of day-to-day operations and in driving the continued success and growth of the or- ganization. ey also need to be communi- cated in an employee-friendly way to ensure they're widely embraced, implemented and maintained. at means the policies should be simple and have clear consequences for breaches. If not, many employees will sim- ply revert to old CEM tactics. Also, be sure to have all employees sign in writing their understanding and agreement to comply. Train all employees and managers. As with any major workplace shift, extensive training in both new policies and procedures (including the use of customer-relationship management software) is a requirement to ensure full and sustainable CASL compli- ance across the workplace. at includes employers, who need to understand the leg- islation, its implications and be ready to spot signs of non-compliance. Monitor compliance on an ongoing basis. Human nature will prompt virtually anyone to fi nd the path of least resistance, which in this case means reverting back to historical CEM habits. It's the organization's respon- sibility to ensure that doesn't happen by developing clear metrics for assessing com- pliance and then enforcing all CEM policies and procedures. How? Regular internal au- dits are an eff ective way to assess compli- ance, while enforcement responsibilities should be assigned to a specifi c individual who can then be held accountable for the organization's compliance. Shannon Anthony is a lawyer with Williams HR Law where she practices employment, labour and human resources law. She can be reached at (905) 205-0496 or santhony@ williamshrlaw.com. SHANNON ANTHONY Failure to comply could mean big fi nes « from ANTI-SPAM on page 1 WEBINARS WEBINARS Interested in learning more about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as family status accommodation, independent contractors, occupational health and safety, the new labour market opinion regime, and a Canada Labour Code primer. To view the webinar catalogue, visit cpdcentre.ca/hrreporter.

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