Bias in the Workplace

| June 24th, 2016 | No Comments »

Bias in the workplaceBias in the workplace is often problematic but it is not on its own illegal.

For example, it is not against the law for your boss to promote someone else or even fire you for the reason that she simply likes him better.  However, if the reason she prefers your co-worker over you relates to a protected human rights ground there is a good chance her actions are illegal.

Under human rights legislation employers cannot discriminate based on any of the following factors:

  • citizenship
  • race
  • place of origin
  • ethnic origin
  • colour
  • ancestry
  • disability
  • age
  • creed
  • sex / pregnancy
  • gender identity
  • gender expression
  • family status
  • marital status
  • sexual orientation
  • receipt of public assistance
  • record of offence

So, in the above scenario, if your boss liked your co-worker better and fired you because she feels he has “more energy and fresher ideas” and hasn’t missed as much time visiting the doctor that sort of bias is illegal as that preference is tied to your age and disability.

Importantly, discrimination does not need to involve a termination for it to be considered illegal.  For example, the following would also be illegal:

  • Preventing employees with accents from having client facing roles;
  • Punishing single parents that call in late because their child was unexpectedly ill;
  • Awarding Canadian citizens more lucrative business opportunities;
  • A practice of not hiring women that are likely to start a family;
  • Denying a transgendered person travel opportunities to areas the employer views as “less tolerant”;
  • Treating normal differences of opinion as insubordinate or confrontational when racialized persons are involved; and
  • Inviting only males to a company sponsored charity basketball tournament.

Employers are wise to have policies and procedures in place that help them avoid bias rooted in discrimination.  These policies should also encourage employees to report the discrimination to the employer and allow for a confidential investigation to take place.

If bias is occurring in your workplace and a protected ground is linked to that differential treatment consider consulting the Whitten and Lublin team for an expert assessment of your situation and a potential damages award.


Author: Paul Macchione, Whitten & Lublin

Your Legal Rights in Disability Insurance Disputes

| June 9th, 2016 | No Comments »

disabilityAn employee who becomes disabled, or otherwise becomes incapable of performing the essential functions of their job, and may be entitled to income replacement through the employer’s short-term and long-term disability insurance policies.  The process is not always straightforward, making it important for both employees and employers to understand their rights:

For Employees

Employees have a basic right to dignity and fair treatment in having their disability insurance claims assessed.  While medical evidence will be required to substantiate a claim for disability insurance coverage, the employee will not be subject to the whim of the insurer’s medical team.

Similarly, the employee has the right to have their claim fairly treated, and on the presumption that their claim is legitimate.  An employer or provider that treats an employee with suspicion about the validity of the claim may find itself in hot water if the claim is rejected.

It is common to see an employee’s disability insurance coverage terminated before they are fit to return to work.  An employee may also find their initial application rejected, despite not being able to perform their duties.  Employees are entitled to challenge unfair or unsupported determinations about their coverage, which means that the employee should promptly retain legal counsel if this situation arises.

The result of this right is that the employee is entitled to retain their employment with the employer while receiving disability insurance benefits.  This right, however, is not absolute.

For Employers

In very limited circumstances, the employer may have the right to dismiss a disabled employee, where it appears that the employee will be unlikely to perform the essential functions of their job for the foreseeable future.  An employer should never dismiss a disabled employee without first obtaining sound legal advice.  Disability is a protected ground under both federal and provincial human rights legislation, which means that dismissing a disabled employee may constitute discrimination.

Employers also have the right to be appraised of the status of the employee’s insurance claim.  If disability insurance coverage is rejected or discontinued, the employer may be at liberty to require the employee to return to work, or to dismiss that employee.  These steps should not be taken without legal advice, as termination of disability insurance coverage does not circumvent an employer’s obligations under human rights legislation.


Author: Marc Kitay, Whitten & Lublin

Things a Leave of Absence Policy Must Include

| May 16th, 2016 | No Comments »

Leave Of AbsenceLeave of absence policies are meant to provide employees with work-life balance and in certain circumstances, to give employees needed time away from work in urgent or compelling circumstances.  Some employers may also grants leaves for educational or career development.

Certain types of leaves may be at the discretion of the employer, and managers may balance operational needs against an individual’s leave request.   Other types of leaves, however, are non-discretionary, and an employee has a legal right to take the time off of work.  It is fundamental to any leave of absence policy to distinguish between those types of leaves that are discretionary and those that are not.

Job-Protected Leaves

Certain leaves of absence are compulsory under applicable employment standards legislation.   In Ontario, the Employment Standards Act, 2000 (“ESA”) sets out various categories of job-protected leaves, which include the following:

  • Pregnancy leave
  • Parental leave
  • Personal emergency leave
  • Family caregiver leave
  • Family medical leave
  • Critically ill child care
  • Organ donor leave
  • Reservist leave
  • Crime-related child death or disappearance leave in circumstances where a child has died or gone missing as a result of crime

Additionally, under the Ontario Juries Act, an employee who is summoned to attend court as a juror, is entitled to an unpaid leave.

The purposes of the leaves, their length and their eligibility criteria vary. However, all of these leaves are non-discretionary, meaning that if the employee in question is entitled to take the leave, the employer must grant it.

Some employers may choose to pay an employee for all or part of a mandatory leave or provide top-up benefits to supplement employment insurance income, but this is not mandatory.

Under the ESA, employers are required to continue making contributions to the employee’s group benefit plans. This includes ongoing contributions to pension, life and extended health insurance, accidental death and dental plans, if applicable.  Furthermore, employees must allow the employee to continue accrue service and seniority during the leave period.

Most importantly, employees are entitled to be reinstated to their employment following a compulsory leave.  If the employee’s job has been eliminated, the employer is required to reinstate the employee to a comparable position.


Provincial employment standards legislation also sets out minimum requirements governing vacation leaves.  In Ontario, employers are require to provide employee with at least two weeks of vacation leave and vacation pay in the amount of 4% of gross wages.

Employers must provide the vacation time, even if an employee does not ask to take it.  Vacation time may be waived only if an employee provides their written agreement to forego vacation and the agreement is approved by the Ministry of Labour.  The employer is still required to process the employee’s vacation pay, regardless of whether the vacation time has been properly waived.

If the employee’s earnings fluctuate over the course of the year, for example, the employee may earn commissions, incentive pay, overtime, in addition to base salary, employers must ensure that when calculating vacation pay owed, that the employee receives a minimum of 4% vacation pay on total gross wages, including variable compensation.

Leaves Related to Disability and Family Caregiving

Separate from the above, employers have a general duty under human rights legislation to accommodate an unpaid leave of absence in the case of an employee who is unable to work because of a disability.  Similarly, employers have an obligation to accommodate time off for an employee is unable to work on account of family caregiving responsibilities. There is no specific time limit to these types of leaves.  The length of the leave depends on the nature of the individual’s needs.   It is important that any leave policy allow the employer flexibility in granting additional time off where needed in these situations.


Generally, a leave policy should be applied fairly and consistently across the workforce.  A protocol should be in place for managers to assess leave requests and identify when a leave is compulsory and when it is within their discretion to approve the time off.

Author: Jonquille Pak, Whitten & Lublin

Your Legal Rights After Maternity Leave is Over

| May 4th, 2016 | No Comments »

rights after maternity leaveEmployers are usually obligated to reinstate an employee following a maternity leave.  The employee has the legal right to be returned to the position she held prior to the maternity leave, and if that position no longer exists after the leave, to a “comparable” position.

The “comparable” position must be comparable in all respects – location, hours of work, quality of work, degree of responsibility, job security, prestige, and so forth.

If the employer can prove that the person on maternity leave would have been terminated regardless of the leave, the employer might be able to avoid the consequences of breaching this obligation.  However, the company has the onus of proving its case.

If a company does breach its obligation after maternity leave, the employee can claim lost wages, associated expenses, emotional pain and suffering, and even damages for the “loss of reasonable expectation of continued employment” – this could amount to an extra month’s pay per year of service.

Moreover, if the failure to return to work is found to be a punishment or “reprisal” for taking the maternity leave, then there could be additional damages against the company.

This topic is without a doubt, one of the most misunderstood and contentious issues in employment law. To learn more about your options, contact an employment lawyer who can explain and advise on which steps should be taken to your benefit.


Author: Daniel Chodos, Whitten & Lublin

Key Things That Should Be Included In Your Employment Contracts

| April 5th, 2016 | No Comments »

signing empoyment contractsWritten employment contracts are the backbone of most employment relationships in Ontario.  A good employment contract confirms all of an employee’s entitlements pursuant to the ESA, and, ideally, confirms that the employee will receive more.  We know that an employer and employee can agree to negotiate for better benefits than exist in the ESA and that an employee cannot contract for less.  The written employment contract is proof of the parties’ agreement with respect to the terms of employment.

So what do we want to see? First and foremost, we want to see an enhanced termination provision promising the employee more notice, severance and benefits than those available in the ESA in the event of a without cause termination.  After that, the employment contract should include each and every perk and benefit offered during the recruitment process: bonuses, benefits, remote access, flex hours, equity, options, you name it: if you talked about it during the interview process, be sure it makes its way into the final employment contract.

Don’t be afraid to negotiate – most of the time salary, title, and overall compensations are up for discussion.  The employer liked you enough to offer you the job, now’s the time to make sure you’re getting the best deal possible.  You can ask for enhanced severance, extra vacation, to waive a probationary period, to get benefits faster.

Especially if you are leaving secure employment to accept another position, go see a lawyer to have the employment contract reviewed.  There are certain protections we can talk about if you’re being induced away from an existing position based on promises with a new employer. Best practice will be to have all new employment contracts reviewed with counsel to ensure you’re getting everything you are expecting.

Author: Ellen Low, Partner at Whitten & Lublin

Parental Leave For Fathers

| March 31st, 2016 | No Comments »

parental leaveWhat are your options when it comes to parental leave for fathers? In the past, many families assumed that dad should work and mom should stay home with the kids. But parents today often choose to divide responsibilities differently, more same-sex couples are having kids, and numerous other changes have taken hold. As a result, it is now much more common for fathers to take parental leave. So what are they entitled to?

The answer is that they are entitled to everything that a mother is entitled to (except those mothers who took another form of leave, known as pregnancy leave, immediately beforehand).

In particular, at any time in the first year after a child is born or comes into a father’s custody (for example, through adoption), the father can take a parental leave. The leave is unpaid and can last for up to 37 weeks.

To be eligible for parental leave, a father must:

  • Have worked for his employer for at least 13 weeks; and
  • Give at least two weeks notice of the leave to his employer before the child’s arrival, or, if the child arrives earlier than expected and the father stops work, within 2 weeks of stopping work.

Also, circumstances can change during a parental leave, and fathers have the right to take the full parental leave, return to work earlier (but not later), or resign. Whatever their choice, the father on parental leave must give their employer at least four weeks of notice.

 If you have questions about parental leave, we can help.

Author: Stephen Wolpert, Whitten & Lublin

Recognizing Signs of Discrimination in the Workplace

| March 8th, 2016 | No Comments »

discrimination in the workplaceThe most common form of discrimination in the workplace is not immediately obvious and you may not even realize that it’s happening to you. Identifying subtle forms of discrimination requires examining all of the circumstances to determine if you have been treated differently from your colleagues on the basis of such identifying factors as your age, gender, race, or disability.

Some indicators that there might be an issue in your workplace include: a lack of diversity; repeatedly being passed over for a promotion even though you have strong performance reviews; exclusion from training or career development opportunities; favouritism in assigning high profile or lucrative projects; receiving differential treatment (in comparison to your co-workers) with respect to discipline; suddenly receiving negative performance reviews after a long history of positive reviews; being asked to perform tasks with unreasonable deadlines (i.e. you are being set up for failure); exclusion from opportunities for social interaction; being held to a higher performance standard; and unwarranted criticism of soft skills such as your “communication style”.

If you suspect that you are being discriminated against, you should begin keeping a detailed diary of the above types of events and make note of any specific incidents, including dates, times and names of any potential witnesses. You should also consider consulting with a lawyer to discuss your particular situation and to obtain assistance in making a formal complaint where it is warranted.

Author: Priya Sarin, Partner at Whitten & Lublin

What You Need To Know About Medical Marijuana in the Workplace

| March 3rd, 2016 | No Comments »

What You Need To Know About Medical Marijuana in the WorkplaceMany people are prescribed marijuana to cope with health conditions, such as chronic pain, cancer, and sleeping disorders.  As the number of prescribed users increases, more employees may be requesting to use it at work.  Below is a list of things employers and employees need to know when navigating the issue of medical marijuana in the workplace.

What employers need to know:

  • Employers must make efforts to accommodate employees using prescription marijuana.  Ontario’s Human Rights Code (“Code”) requires employers to accommodate their employees’ disabilities up to the point of undue hardship.  Since the medical condition underlying an employee’s use of marijuana will likely fall within the definition of “disability” under the Code, an employer’s obligation to accommodate extends to the use of licensed marijuana in the workplace.  Accommodation must be explored before the employer seeks to fire the employee – even if the employee is not able to perform the job in the same way as before.
  • Employers must consider how the use of medicinal marijuana will impact the safety of the workplace.  Ontario’s Occupational Health and Safety Act requires employers to take every precaution reasonable in the circumstances to protect their workers.  Employers should therefore making inquiries of the employee to ensure that he or she can safely perform the job.  If the employee cannot carry out his or her job safely, the employer is not necessarily required to accommodate the use of medical marijuana at work.  This is especially so where the employee’s position involves the use of safety sensitive equipment.  Even in such circumstances, however, employers should explore alternative methods to accommodate the employee – such as providing a leave of absence to undergo medical marijuana treatment, or moving the employee to a position that would not pose safety risks to the workplace.

What employees need to know:

  • Employees have a right to have their disabilities, which may require the use of medical marijuana, accommodated in the workplace.  Accordingly, employees are encouraged to disclose their use of medical marijuana to their employers and ask that it be accommodated.  This will trigger the employer’s accommodation obligations and ensure that the protections of the Code are engaged.
  • Employees do not have a right to endanger the health and safety of the workplace.  So, when seeking accommodation, employees should provide their employers with medical documentation addressing their abilities to perform their jobs safely.  This will address any questions the employer may have about how the use of medical marijuana will impact the health and safety of its workers.
  • Employees are required to cooperate with their employers’ accommodation process.  This means that, if the employer proposes accommodation that is reasonable, the employee is required to accept the proposal.

If you would like to know more about the use of medical marijuana in the workplace, contact one of our lawyers today.

Author: Ozlem Yucel, Whitten & Lublin

Severance Pay in Canada

| February 16th, 2016 | No Comments »


Typically, all non-unionized employees that are dismissed without cause are entitled to notice of their termination or pay in place of notice, known as severance. If you have been dismissed your employer may try to limit your severance pay through a written employment contract or offer letter.

The employer can limit your entitlements to the Employment Standards Act (the “ESA”) minimums if you are a provincially regulated or the Canada Labour Code’s minimums if you are a federally regulated.

Most employment relationships are provincially regulated and the ESA minimums can be as low as one week per year of service up to a maximum of eight (8) weeks. An additional week per year of service is possible up to a maximum of twenty-six (26) weeks if you have been with the organization for at least five (5) years and the employer has a payroll of at least $2.5 million in Ontario.

Despite the above, it is important to know that employers, including the largest and most sophisticated, often do not properly limit their employees’ entitlements to the minimums despite what might seem like appropriate language in the contract. In fact, they often get the language or procedure for limiting severance wrong. As a result, if you are terminated you may be entitled to months of severance pay above the ESA minimums. Factors such as your age, length of service, the job you performed, comparable cases and your total compensation will impact the amount of severance you are entitled to.

Our Severance Calculator can assist you in determining an estimate for your severance, but it does not replace the need to speak with a lawyer directly. A lawyer from the Whitten & Lublin team will assess your contract’s enforceability and apply the factors a judge uses to determine a fair amount of severance.


Author: Paul Macchione, Whitten & Lublin

6 Things to Know About Non-Competition Clause

| January 28th, 2016 | No Comments »

non-compete clauseThe non-competition clause, otherwise known as a ‘Non-Compete’, is typically an agreement between an employee and employer that prevents the employee from participating in a business that competes with the employer.

Not all Non-Competes are enforceable, and often courts will strike them out of employment contracts for constituting a ‘restraint on trade’. Whether you are being pressured to sign a Non-Compete, or have already agreed to one, make sure you know these six things:

  1. Non-Competes cannot be forced: A Non-Compete is an agreement between two parties.  In order for an agreement to be enforceable, each party to the agreement must receive something of value.  If you agreed to the Non-Compete after commencing employment, and did not receive an incentive for doing so, your Non-Compete may be unenforceable.
  2. Non-Competes are generally unenforceable against former employees: There is a public interest in allowing individuals to pursue their livelihood as they see fit. Where there is an imbalance in bargaining power (e.g. the employee had little or no say into the terms of their employment contract), the Non-Compete is less likely to be upheld.
  3. Non-Competes must be limited in scope: A Non-Compete that lasts for two years and applies to all of North America is less likely to be enforced than one that lasts for six months, and applies to a small geographic territory.
  4. NonCompetes will not be upheld where a non-solicitation clause will do: Employers utilize non-competes to protect their business interests. Often that interest takes the form of a client or customer list. Courts will refuse to enforce a Non-Compete where a non-solicitation clause protects the employer’s interest.
  5. The employer must prove actual harm: In order for a Non-Compete to be enforced, the employer is faced with the burden of proving that a specific harm will arise if it is not enforced. The burden cannot be discharged by speculation or prospective thinking.
  6. You have options: Agreeing to a Non-Compete does not mean it is set in stone. Similarly, a prospective employer may be agreeable to removing it from your employment contract. If you are faced with a current or future Non-Compete, it is imperative to speak with a competent employment lawyer to know your rights.

Author: Marc Kitay, Whitten & Lublin