3 Key 2025 Labour & Employment Law Learnings
Published:
December 10, 2025
Author(s):
As 2025 draws to a close, the time is right to look in the rearview mirror and reflect on the key labour and employment law learnings that will leave an impression on your business into 2026.
1. DEI Rollbacks Have a Limit in Canada
2025 saw news of employer rollbacks of Diversity, Equity and Inclusion (DEI) programs across the United States following President Trump’s now infamous January 20, 2025 Executive Order, “Ending Radical And Wasteful Government DEI Programs And Preferencing.” The U.S. approach left many wondering: what’s the impact in Canada?
Canada has a strong legal foundation for protecting the rights of diverse groups. And, based on a May 2025 survey by Abacus Data, 51% of Canadians think DEI has a positive impact on society overall. Canadian employers don’t seem to consider DEI efforts as being “illegal” (and they aren’t in Canada). But we are seeing some employers moving around DEI – whether backward or forward – more quietly and carefully than they may have in the past. And indeed, those Canadian employers that do business in and with the U.S. are under greater pressure to respond to and comply with new U.S. directives on workplace DEI.
But it’s important for Canadian employers to remember that there is a bottom line in Canada: human rights legislation, including the duty to accommodate to the point of undue hardship, sets a minimum standard with which they must comply. Every Canadian province and the federal jurisdiction has human rights legislation that prohibits discrimination in employment based on enumerated personal characteristics that vary marginally depending upon the applicable legislation. Broadly defined, discrimination is a distinction, intentional or unintentional, based upon a protected personal characteristic that has the effect of imposing burdens, obligations, or disadvantages on an individual or group not imposed upon others or that withholds or limits access to opportunities, benefits, and advantages available to others who lack the protected personal characteristic. This prohibition against discrimination in employment includes the duty to accommodate an employee with the protected characteristic to the point of undue hardship: generally speaking, the duty to accommodate is a legal duty on an employer to take steps to offset the discriminatory impact of a workplace rule, policy, requirement or practice by adjusting, revising, or eliminating it, to the point of undue hardship. And the prohibition against discrimination in employment applies to the entire life of the employment relationship: from application to termination.
So, while Canadian employers have the freedom, should they choose, to roll “DEI programs” back, they must still comply with the applicable human rights legislation or face the consequences. Those non-compliance consequences are broad and human rights commissions and tribunals generally have the power to fashion a remedy that will make the victim of the discriminatory conduct whole. Such remedies can include, for example, an order to cease the discriminatory conduct, to undergo anti-discrimination training and to financially compensate an employee for the effects of the discriminatory conduct.
The learning? While DEI programs aren’t illegal in Canada, Canadian employers can choose to “roll them back” – but there is a limit: employers must continue to comply with applicable human rights legislation, including the duty to accommodate to the point of undue hardship.
2. Employees Secretly Recording Employee-Employer Conversations is a Real Risk
In today’s workplace, every employee likely has access to equipment that could be used to secretly record their workplace conversations – including those with their employer. The ease of doing so, either by using their personal smartphone or even their employer’s equipment, can create a temptation too great for some employees to resist, particularly with the prevalence of remote work. And employers need to be prepared for this risk:
It's likely legal. It is likely legal for employees to secretly record workplace conversations between they and their employer in Canada.
Doing so might be – but not necessarily is - cause for termination of an employee’s employment. The answer depends on the specific circumstances, though there’s a reasonable chance it does.
Off-duty posting by an employee of their secret recordings of their employer conversations might be - but again, not necessarily is - cause for discipline or for termination of their employment. It depends on the effect of the post. Employees are subject to discipline for off-duty conduct, including social media activity, where their conduct has a detrimental impact on the employer’s business in any one of these ways:
- It harms the employer’s reputation or product.
- It renders the employee unable to perform their duties satisfactorily.
- It leads to refusal, reluctance or inability of the other employees to work with them.
- The employee has been guilty of a serious breach of the Criminal Code, rendering their conduct injurious to the general reputation of the employer and its employees.
- It places difficulty in the way of the employer’s ability to properly carry out its function of efficiently managing its works and efficiently directing its working forces.
Employees might be able to use secret recordings of conversations with their employers as evidence in a legal proceeding against their employer. Practically, the admissibility often hinges on the purpose and circumstances under which the recording was made.
There are ways to mitigate (though not eliminate) the risk of employees secretly recording (and even posting on social media) their conversations with you:
- Put it in a policy: no recordings of conversations.
- Control the location of the conversation.
- Assume you’re being recorded and conduct yourself honestly and in good faith.
- Stick to a script (that includes a reiteration of the fact that recording the meeting is not permitted).
- Have a witness to your conversations.
The learning? In today’s workplace, there is a real risk that an employee will secretly record your conversation(s) with them, so be proactive and be prepared to mitigate this risk.
3. Seriously Assess Employee Refusal to Travel to the U.S.
In late 2025, the Government of Canada added an advisory to its U.S. travel advice page for 2SLGBTQ+ Canadian passport holders. Even before this addition, Canadians – especially members of the 2SLGBTQ+ community – were expressing concern about travel to the U.S. The question follows: can employees refuse to travel to the U.S.? The answer: maybe.
There are two main legal routes under which an employee might refuse to travel to the U.S.:
Occupational Health & Safety Legislation. Occupational health and safety legislation could give the employee the right to refuse to travel on the basis they have reasonable grounds for believing that doing so is likely to endanger their health or safety.
Human Rights Legislation. Requiring an employee to travel to the U.S. regardless of valid concerns that they will suffer discrimination on the basis of a protected personal characteristic – such as gender identification, sexual orientation, or race - could trigger the duty to accommodate the employee to the point of undue hardship and lead to a human rights complaint against the employer.
So, what do you do if an employee refuses to travel to the U.S.?
- Take the refusal seriously.
- Thoroughly assess the refusal fairly and objectively and on a case-by-case basis.
- Document your process.
The learning? If an employee refuses to travel to the U.S., don’t dismiss – or accept – the refusal at face value: take it seriously and assess it thoroughly.
Please contact your McInnes Cooper lawyer or any member of our Labour & Employment Law Team @ McInnes Cooper to discuss actioning 3 key 2025 labour and employment law learnings.
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