Is Mandatory Retirement Legal?

| August 15th, 2014 | No Comments »

Every employee is entitled to be protected and accommodated according to the law, based on certain grounds.  Two grounds for discrimination leave employees wondering what their legal rights are; age discrimination and sick leave based on disability.

Readers ask, is mandatory retirement legal? Daniel Lublin, Toronto Employment lawyer explains in his recent Globe and Mail article that mandatory retirement is in fact illegal. Employees are protected from age discrimination and cannot be forced to retire at 65 or any other number. The exception to this rule is where age plays a role in an employee’s ability to perform.

Another scenario is where employers will sometimes contract the services of third-party disability management firms to assist their employee’s in adjudicating their claims for benefits. The questions that arise from this situation are: are third-party firms entitled to information regarding my health condition? And what are my rights in relation to confidentiality and privacy?  Mr. Lublin explains that if you don’t provide the required health information, you can be denied benefits. These firms normally do not share your health information with employers.

Daniel Lublin’s full article Does mandatory retirement apply to contractors? can  be read in his Globe and Mail column.

Ex-employee soliciting former employer clients: is it legal?

| August 13th, 2014 | No Comments »

In his recent Globe and Mail column, Toronto Employment Lawyer Daniel Lublin, answers some of the most common questions that employers and employees alike have regarding termination of employment.

Ex-employees often want to understand whether soliciting their former employer’s clients is legal, especially when they have not signed a non-compete or non-solicitation clause. What Mr. Lublin explains is that unless you signed an agreement that unequivocally prohibits you from competing or from contacting clients for a reasonably defined period of time, you are generally allowed to do so. There are a few narrow exceptions to this rule, such as misuse of confidential information that you retained from your former employer (for instance, a client contact list) or in cases where you held such an important role at your former employer that they are particularly vulnerable to your actions after departure.

Employees often become confused between different terms when it comes to severance, and they want to understand the difference between severance pay and statutory severance pay . Mr. Lublin describes the difference between the two types of “severance.” Statutory severance pay is simply a minimum, like a minimum wage. This payment is legally required in most cases and is not dependent on the employer’s payroll size. Employees can be (and most often are) entitled to more than the statutory severance pay, just like they are often entitled to more than minimum wage.

When it comes to employment law, it is always good idea to contact an expert who will be able to provide more detailed advice and information about your legal rights. Daniel Lublin’s full article Can I contact clients from my former employer? can be read in his Globe and Mail column.

Employment law rights regarding your health benefits and origin of proceeding

| August 6th, 2014 | No Comments »

Employment lawyer, Daniel Lublin has answered some essential questions in the Globe and Mail regarding employment law rights. Read his responses to several readers’ questions below:


Is an employer legally permitted to reduce or eliminate an employee’s health benefits?


Employers can make only minor changes to your compensation without your consent. There is case law that states that anything more than a 15-per-cent change in compensation is a breach of contract that entitles you to leave your position and sue for damages while you look for another job. This is referred to as a constructive dismissal, but the 15-per-cent figure is just a guideline. Even a 5-per-cent change to your compensation may in some cases amount to a constructive dismissal.


Is it practical for employees who reside out of Ontario, but are working for an Ontario registered company, to sue in Ontario or in their local province?


It is an issue of choice. In Canada, a person or company who starts a lawsuit makes the decision on where to sue, but a defendant can challenge that choice if there was no real connection between the jurisdiction that was selected by the plaintiff and the case. Your strategic choice would weigh on whether or not you wish to travel to and from Ontario or the legal costs associated with enforcing a judgment in Ontario.

To read more of Daniel Lublin’s articles and find more information about your rights refer to “Employment rights regarding your health benefits and origin of proceeding”.

Can my employer change my regular work schedule?

| August 5th, 2014 | No Comments »

All work environments have different expectations for an employee’s work schedule.  A long term employee could be well adjusted to his/her schedule when they are told by their employer that it is about to change. Is an employer legally allowed to change the work schedule and what are the implications?


 Can an employer change an employee’s work schedule?  In my case, I was working 7:00am to 4:00 pm, Monday to Friday for the last 7 years and now my company has told me to work some evenings and some weekends.  Can I refuse?


An employer is permitted to set hours of work and to make certain limited changes to your hours of work.  Work environments are not static and employers can require employees to work outside of their regular working hours.  However, if the employer makes a significant change to your work schedule without your agreement, such as requiring you to regularly work evenings and weekends, this may trigger a constructive dismissal.  You can refuse to accept the change in hours, in which case the employer may terminate your employment.  In these circumstances, you are entitled to demand a severance package.  Even if the employer does not formally terminate your employment, you can resign from your job and demand a severance package as though your employment had been terminated.    Ultimately, the employee bears the onus of establishing that s/he has been constructively dismissed from their job.  There is no specific formula in terms of what type of change in working hours triggers a constructive dismissal.   Each case is decided on its own facts and in particular, decisions are based on whether the employee has other obligations or circumstances that may make the change in work hours particularly onerous.

Is favouritism a legal element for promotion?

| July 30th, 2014 | No Comments »

The workplace is an environment where favouritism can build.  The real question is, is it legal to promote someone based on favouritism? The Employment Lawyers at Whitten and Lublin explain this topic in a deeper context based on Human Rights Laws.


My question is about favouritism.  If I’m passed over for a promotion and I believe the process was unfair and biased, what legal options or remedies do I have?


Favouritism is not illegal.  A company can pick favourites and decide who to promote based on bias and not merit.  But there is one exception.  Its decision can be challenged if it was made based on illegal discrimination, such as age, race, religion, gender and disability.  If you were not promoted because your boss does not like you, there is nothing you can do.  But if that decision was made because your boss wanted a male in the role, for example, you could challenge it under human rights laws.  The key is proving the decision was linked to an illegal form of discrimination.  Although that is not always easy, if you have some evidence suggesting there was a personal bias due to a prohibited ground of discrimination, the legal onus shifts to an employer to demonstrate that its decision was not illegal.

What are my Vacation Rights?

| July 29th, 2014 | No Comments »

With long weekends coming around some employers might decide to substitute a working day for a vacation or an unpaid day and close the office.  Can you be forced to take a vacation day and what are your rights in that case? Whitten and Lublin, Employment Lawyers answer those questions explaining your vacation entitlements under the Ontario Employment Standards Legislation.


My employer closed our office on June 30th in order to give all employees a 4 day long weekend for Canada Day.  We were given two options: take a vacation day and be paid or take a day unpaid.  Is it legal for my employer to close the office and only offer these two options?  I live in Ontario.  If this is against the legislation, how can I make an anonymous complaint?


You cannot be forced to take a single vacation day.  Ontario’s employment standards legislation allows you to insist on taking your vacation in one or two week blocks.  The rule is similar in most other Provinces.  If you did not want to use June 30th as a vacation day and you earn a fixed salary (that is not based on the number of hours that you work in a week) you are still entitled to pay for that day, even though the office closed.  You can file an anonymous or named complaint with the Ministry of Labour, who will investigate the alleged breach and can take steps to remedy any wrongdoing including an award of compensation or an order to comply with the legislation in the future.

Your legal rights when dealing with a recruitment agency

| July 28th, 2014 | No Comments »

Most often young graduates will list their names with a recruitment agency in hopes of finding employment opportunities faster than searching on their own. However, time goes by and after a period of unemployment, you decide to search on your own. You find that some employers refuse to hire you because the agency submitted your name first, without your permission. Since the employer is expected to pay a fee of your wages, this does not sit well with them and those opportunities are lost. What steps do you take to prevent this from happening in the future?

Daniel Lublin gave his opinion in the Globe and Mail article on this subject. What he explains is crucial to continuing your search efforts. Firstly, you need to terminate dealings with the agency immediately. Whether or not there is a signed contract, they do not have the legal right to continue to act on your behalf without your authorization or consent. Secondly, send a letter to the agency’s director confirming that your dealings with them are over and that they are not permitted to continue to use your name for future searches. If they are still reluctant to do so, advise them of your intent to consider your legal options. Their unethical practice may be halting your employment opportunities. If at any point you believe that an employer may be conflicted with this issue, clarify to them that you are not associated to any agency.

To find out more on the topic read the full article published in the Globe and Mail, “A recruiter is sabotaging my son’s job search”.

Mental Stress and WSIB Benefits

| July 22nd, 2014 | No Comments »

WSIB coverage may be getting even more expensive, as the Tribunal overseeing Ontario’s workers’ compensation system is now accepting legitimate claims for mental stress in the course of employment.  In a controversial decision, the Workplace Safety and Insurance Appeals Tribunal held the statutory exclusion of benefits for non-traumatic workplace stress to be unconstitutional, stating that it violated the guarantee of equality under the Canadian Charter of Rights and Freedoms.  The Tribunal held the distinction between physical and mental disabilities was arbitrary and unnecessary.

Practically, this decision will likely result in an influx in claims for workplace stress and even some claims that were previously rejected being reconsidered by the WSIB.  Correspondingly, companies ought to refocus their attention on improving worker morale and discouraging burnout, in order to reduce the likelihood of such claims and – as a positive side-effect – keep workers productive and happy.


Solutions for your employment issues

| July 10th, 2014 | No Comments »

Daniel Lublin, Employment Lawyer has recently written a couple of articles in his Globe and Mail column, where he answered a couple of readers’ questions regarding their employment issues. Here is what Daniel Lublin explains:

What can be done in case a client is threatening an employee and does the employer have an obligation to protect that employee?

  • An employer has an obligation to provide a safe workplace and to protect employees from workplace violence and harassment which includes threats from members of public. If employee’s safety is in jeopardy at work, he/she can leave the workplace and may even be entitled to damages.

What are the options in case unpaid vacation wages are not provided and employer decided to close down?

  • The employer cannot refuse to pay even if facing grim financial circumstances. Complain can be made to provincial Ministry of Labour or one can pursue in court, depending on the amount owed.

In case of a medical leave how long can my employer hold my job, and when I return can they refuse me?

  • The reinstatement after a long-term illness or disability is protected by human rights legislation; however there are two exceptions in which case the best is to consult with an expert.

What options would long term employee have in case employer decided to restructure and change employee’s responsibilities? Would he need to accept these changes?

  • The best option would be to meet with an expert to determine whether or not there are reasonable or unreasonable circumstances which would constitute constructive dismissal.

What can the Ministry of Labour do in a situation where the employer is creating a hostile work environment?

  • The ministry will only get involved to determine whether the employer has a workplace harassment policy in place in accordance with the Occupational Health and Safety Act. Employees may have recourse under the Ontario Human Rights Code if the harassment relates to a prohibited ground of discrimination or the civil courts if the conduct makes employment intolerable.

To read more of Daniel Lublin’s articles and find more information about your rights refer to the following articles: My employer isn’t protecting me, Will I get my job back after a long illness, and Our boss harasses us. What can we do?

Publicly criticizing your employer – Is it considered misconduct?

| June 6th, 2014 | No Comments »

Nothing is more public than expressing your work frustrations and criticizing your employer on social media sites and the internet.  This is not the smartest idea considering the workplace consequences and the potential damage to your career.

As Daniel Lublin, Toronto Employer Lawyer explains in his latest Globe and Mail article, “An employee’s public comments about his employer can be considered misconduct where those statements are harmful to the employer’s interests or damaging to its business. One reason is that employers can be exposed to liability because of statements made by their employees”.

Employees can speak their mind privately or publicly as long as their comments don’t negatively affect their employer’s business.  It is always wise to consider how the employer will feel about the statement, the consequences and whether voicing your opinion is worth the trouble it may cause you.

To find out more on the topic from a legal perspective, read Daniel Lublin’s article in the Globe and Mail, Speaking your mind can hurt your career.