B.C. Greens calling for NDA ban in harassment and discrimination cases

Working with the Can’t Buy My Silence campaign, the leader of the B.C. Green Party is calling on the government to reform the use of Non-Disclosure Agreements (NDAs) in the province.

On March 9, Sonia Furstenau tabled the Non-Disclosure Agreements Act in the Legislature — looking to ban NDAs in matters involving workplace harassment and discrimination.

Yesterday @SoniaFurstenau introduced the Non-Disclosure Agreements Act.

It would restrict the use and content of NDAs relating to acts and allegations of discrimination and harassment.

NDAs have become a tool to silence victims.

This practice must end. 1/ #bcpoli @cbmsilence pic.twitter.com/MoXggUIEsV

— BC Green Caucus (@bcgreencaucus) March 10, 2023

“Too many British Columbians are faced with gag orders that allow instances of harm to be swept under the rug. It’s time for this practice to end,” Furstenau said in a news release.

“NDAs were designed to prohibit the sharing of trade secrets, but they’ve become tools to silence victims of workplace discrimination and harassment – including sexual harassment, racism, ableism, or other forms.”

According to news outlets, including CBC News, the bill introduced by the B.C. Greens follows a similar law enacted in Prince Edward Island in 2022 — as well as proposed legislation in Nova Scotia and Manitoba.

Lawyers in favour of phasing out NDAs

Prior to Furstenau tabling the Non-Disclosure Agreements Act, lawyers across Canada voted in favour of a resolution to restrict the use of NDAs.

The resolution, voted on during the Canadian Bar Association’s annual general meeting in February, passed by a margin of 94 per cent.

In a post on its website, the Association said it will discourage the use of NDAs to “silence victims and whistleblowers who report experiences of abuse, discrimination and harassment in Canada.”

SEE ALSO
• Hockey Canada reopening investigation into alleged 2018 sexual assault
• Ontario to ban sexual misconduct NDAs for post-secondary staff
• Employment lawyer on Sexual Harassment and Non-Disclosure Agreements

Employers must react to workplace harassment and discrimination

In B.C., non-unionized employees have a right to work in an environment free of harassment and discrimination.

It’s illegal for workers to be discriminated against based on protected aspects under federal or provincial human rights legislation.

Examples of protected aspects include:

• Age
• Race
• Gender
• Religion
• Family status
• Disability

Employers in the province are responsible for implementing a harassment and discrimination policy.

All staff, including management, must be trained on how to respond to instances of workplace harassment, discrimination, or inappropriate conduct.

SEE ALSO 
• Disability in the workplace
• Duty to accommodate: Employee rights
• Employment Law Show: Duty to accommodate in Canada

What should I do if I experience harassment or discrimination at work?

Non-unionized employees in B.C. don’t have to tolerate harassment or discrimination in the workplace.

If you experience harassment or discrimination from a co-worker or supervisor, you should report the incident to the appropriate individual at the company — as per the employer’s policy (i.e. human resources).

Your company has a duty to investigate and respond appropriately to allegations of harassment and discrimination.

WATCH: Employment lawyer Lior Samfiru discussed everything you need to know about workplace harassment on an episode of the Employment Law Show.

What should I do if my boss is harassing or discriminating against me?

If your employer is creating, or allows for the creation of, a hostile or toxic work environment, there is a very good chance that you can treat it as a constructive dismissal.

In this situation, the law allows non-unionized employees to quit their job and pursue full severance, which can be as much as 24 months’ pay.

If you believe that you have been constructively dismissed, don’t resign until you speak with an experienced B.C. employment lawyer at Samfiru Tumarkin LLP.

We can review your situation, assess your legal options, and help you secure the compensation that you are owed.

LEARN MORE
• How is severance pay calculated?
• Vancouver Park Board accused of racism and toxic workplace culture

Filing a human rights complaint

In addition to a constructive dismissal claim, non-unionized employees who experience discrimination in the workplace can file a complaint with the B.C. Human Rights Tribunal.

The tribunal is responsible for dealing with human rights complaints pertaining to the province’s Human Rights Code.

Successful complaints can result in compensation for the individual who experienced discrimination.

SEE ALSO
• Former Vancouver Canucks staffer alleges discrimination, wrongful dismissal
• Recruiter awarded $50K, lost wages after sexual harassment by HR manager
• Alberta admin assistant awarded nearly $40K in discrimination case

Can my boss punish me for reporting harassment or discrimination at work?

Employers in B.C. can’t punish or threaten to punish non-unionized workers for asserting their workplace rights.

• Example: Your manager constantly insults you because of your religion. You inform your employer that you are being harassed by a member of the management team. The company can’t make major changes to your job as punishment, including cutting your pay or increasing your workload. These types of modifications are illegal in the province.

If your boss disciplines you or threatens to discipline you for asserting your rights, that is a reprisal and you should contact Samfiru Tumarkin LLP immediately.

SEE ALSO
• Employment Law Show: How to handle a bad boss
• Employment Law Show: What to know about changes to your job

Can my boss pressure me to quit after reporting harassment or discrimination at work?

No matter how upset your employer is that you reported harassment or discrimination in the workplace, the company can’t pressure or force you to resign.

If your boss is influencing you to step down, document their attempts. Keep any letters, emails, or text messages that show how the company is pressuring you to quit your job.

Unfortunately, pressure from management can be so intense in some cases that non-unionized workers don’t feel they have any other option than to resign.

If you were forced to quit your job for any reason, speak with an experienced B.C. employment lawyer at Samfiru Tumarkin LLP.

In addition to a severance package, you could be owed compensation for any damages associated with the end of your employment.

LEARN MORE
• Employment Law Show: Facts about forced resignations
• Employment Law Show: What your employer legally can’t do

Can my boss fire me for reporting harassment or discrimination at work?

The short answer is no. If a non-unionized employee in B.C. is fired after reporting harassment or discrimination at work, this would be seen as retaliation and potentially “prohibited action” under the province’s Workers Compensation Act.

However, employers can dismiss staff for any reason, as long as they are provided full severance pay and the reasons for their dismissal aren’t discriminatory. This is known as a termination without cause.

Boss fired you “for cause”?

Companies in the province can’t terminate non-unionized employees for cause if they report harassment and discrimination at work.

Considered the “capital punishment” of employment law, this type of dismissal is reserved for the worst kinds of workplace offences, such as serious insubordination, theft, or assault.

Not only can your employer let you go without a severance package, but you won’t be able to access Employment Insurance (EI) benefits.

In order to justify firing staff for cause, companies have to prove progressive disciplinary measures were applied and that a lesser penalty wouldn’t be suitable, which is very hard to do.

LEARN MORE
• Wrongful dismissal in B.C.: Your rights
• Severance pay in a recession
• Employment Law Show: Facts about the termination process

Lost your job? Speak with an employment lawyer

If you are fired or let go for any reason, or believe that your human rights have been violated, contact the experienced employment law team at Samfiru Tumarkin LLP.

Our lawyers in B.C., Alberta, and Ontario have helped tens of thousands of non-unionized individuals resolve their workplace issues.

We can review your situation, enforce your rights, and ensure that you receive the compensation you are legally entitled to.