SIGNIFICANT CHANGES TO THE EMPLOYMENT STANDARDS ACT

| November 24th, 2017 | No Comments »

The Ontario government recently announced major changes to the Employment Standards Act, 2000 (the “ESA”), the law which governs most workplaces in the province.  Many of these changes will become effective on January 1, 2018, while some others will not take effect until April 1, 2018 (e.g., the work scheduling rules).

Some of the key changes to the ESA include the following:

Minimum Wage

  •  as of January 1, 2018, the general minimum wage will increase to $14 per hour, and then to $15 per hour on January 1, 2019. Following the increase in 2019, the minimum wage rate will continue to be indexed to the rate of inflation.

Vacation Pay

  •  employees with 5 or more years of service will be entitled to a minimum of 3 weeks of vacation time and 6% vacation pay. All other employees with less than 5 years’ service will be entitled to the previous minimum standard of 2 weeks and 4% vacation pay.

 Public Holiday

  •  public holiday pay will be calculated by simply dividing an employee’s total earnings by the number of days worked in the previous pay period.

 Equal Pay for Equal Work

  •  employers will be required to pay all part-time, casual, seasonal and temporary employees at the same rate as full-time employees for performing the same job. The main exceptions to this requirement would be where the wage difference is based on seniority, merit or the quantity/quality of an employee’s production.

 Leaves of Absence

  •  Parental Leave extended up to 61 weeks for employees who take pregnancy leave, and up to 63 weeks otherwise.
  •  Personal Emergency Leave of up to 10 days, the first 2 of which must be paid. Employers will not be allowed to request a doctor’s sick note for this leave.
  •  Family Medical Leave extended up to 28 weeks in a 52-week period to provide care and support to a critically ill family member.
  •  Critical Illness Leave of up to 17 weeks to care for adult family members.
  •  Domestic and Sexual Violence Leave of up to 10 days and 15 weeks if the employee or a child of the employee experiences or is threatened with domestic or sexual violence. The first 5 days of this leave are to be paid.
  •  Leave for Child Death or Crime-Related Disappearance of up to 104 weeks.

 Penalties for Employee Misclassification

  • employers who improperly characterize employees as “independent contractors” will be subject to penalties, including prosecution, fines and public disclosure of a conviction. In the event of a dispute, the employer will have to prove that the individual is not an employee (reverse onus).

 Overtime Pay

  •  employees who are paid two or more regular rates for work performed for the same employer in a work week, will be entitled to overtime pay at time-and-a-half for every hour above the overtime threshold.

 Work Schedules

  •  employees will have the right to request schedule or location changes after having been employed for 3 months.
  •  employees who regularly work more than 3 hours per day, but upon reporting to work are given less than 3 hours, must be paid for 3 hours of work.
  • employees will be allowed to refuse to accept shifts if their employer asks them to work with less than 96 hours’ notice.
  • if an employer cancels a shift within 48 hours of its scheduled start, employees must be paid for 3 hours of work.
  • employees who are “on-call” and available to work but are not called into work or their work ends earlier, must be paid for a minimum of 3 hours of work.

 Penalties for Violations of the ESA

  • the maximum fine for employers who violate the ESA will be increased to as high as $1,500.  The government will also publish the names of those who are fined.

What is a Wrongful or Forced Resignation

| November 20th, 2017 | No Comments »

There is a major financial difference between getting fired by your employer and choosing to resign.  Simply put, most employees who are fired are entitled to severance packages, while employees who resign are not entitled to anything.  This gives employers a financial incentive to encourage employees to resign and this incentive sometimes results in employers mistreating or placing undue pressure on employees in an effort to have them resign.

This mistreatment can take many forms.  For example, some employers try to blow minor disciplinary issues out of proportion and suggest that they would be justified in firing an employee for cause (another situation where employees are entitled to nothing).  Knowing that employees are fearful of being fired for cause and the impact it would have on their reputation and reemploy, they offer the opportunity to resign (or sometimes retire) as a way for the employee to avoid reputational harm.

As another example, some employers fail to address workplace issues that make your work environment hostile, toxic or intolerable.  Rather than address the issues – many of which can trigger legal obligations for the employer under the Human Rights Code, Occupational Health and Safety Act, and other legal obligations – the employer either “waits you out” or actively encourages you to resign if you don’t like your workplace.

If you feel like you are being pressured to resign, resist the pressure, take your time to consider your options and seek legal advice.  Consider:

  1. Will it be helpful to document relevant conversations with your manager, co-workers and/or human resource departments?
  2. What will happen if you don’t resign? Will the company fire you?  If they will, were you guilty of any misconduct that was so serious that they can justify withholding your severance? (Hint: withholding severance is only appropriate in the very most serious instances of misconduct and depends on all of the surrounding circumstances)
  3. Are you able to negotiate a severance package despite the fact that this will be called a resignation? How about a positive reference letter?
  4. Do you have a back-up plan – another job offer, consulting work or a return to school?
  5. If you resign, will you forfeit an entitlement to collect Employment Insurance payments?

In some cases, courts will accept that an employee’s resignation was coerced and find that they were essentially being fired – this is known as constructive dismissal.  However, it is better to try resolve these issues before resigning.  In short, don’t let your employer bully or pressure you to resign without first understanding your rights and options, as doing so could cost you your severance.

Social Media Privacy Policy in the Workplace

| November 13th, 2017 | No Comments »

Social media and privacy in employment law is an evolving and developing concept. The pervasiveness of the internet and the worldwide access to online content greatly diminish an individual’s expectation of privacy when posting online content in the eyes of the law. This is because anyone can access online content with little effort.

How does this relate to the workplace?

In general, once an employee posts content on social media, they should reasonably expect that others may see the content, including their employer. This applies whether a social media account has privacy setting enabled or not. Thus, a worker cannot claim that an employer has violated their privacy if faced with repercussions for their online conduct. In other words, any online content posted by an employee that violates workplace policy can be subject to disciplinary action. To aid employees’ understanding of what is acceptable and unacceptable with regards to content they post, employers should develop clear social media policies and distribute it to their employees.

When implementing social media policy, it is necessary to take a wholesome approach. Social media policy must be consistent with existing laws and policy in the workplace. Employers must consider how published social media content that is viewable to the public relates to each existing policy in the workplace. This may take on many fronts, such as breaches of harassment policy, confidentiality, violence (ie. bullying), and even behavioural requirements for workers occupying specific roles.

For instance, suppose a worker posts confidential information, such as names of clients, on a social media account with privacy enabled. Workplace policy regarding confidentiality and social media should make it clear that anything in violation of confidentiality policies on social media will be subject to the disciplinary procedures in place.

Overall, once information that is posted online becomes publicly accessible, its ramifications as it relates to one’s workplace and duties of employment are subject to existing workplace policy and law.

What Factors will Courts Consider in Determining Inducement?

| November 7th, 2017 | No Comments »

Employers may have their recruiters aggressively pursue highly skilled employees, as this can greatly aid in the success of an organization. This includes making promises in order to entice allure the candidate to accept the job offer. The issue of inducement, however, arises when an employee has been terminated. The courts may award the former employee an increased severance package in the form of notice pay (pay equivalent to the amount of time needed for the employee to find a comparable job) if it is found the employee accepted the job offer due to being induced.

In general, there are a few factors the courts will look at when determining whether an employee was induced. They include:

  1. Whether the former employee was a former business owner before being pursued;
  2. The level of security of the employee’s previous job;
  3. Whether the employee turned down better job offers;
  4. Whether the employee was required to relocate (unless the employee had a history of frequently relocating);
  5. Whether the employee applied for the job or was actively pursued.

Although inducement is not illegal, employers must ensure that the promises made are able to be kept. If a promise that is made was necessary to have the employee accept the offer, it is important that such promises are represented accurately and fulfilled.

The goal of enhanced notice pay is to mitigate the damages suffered by employees while they search for comparable employment. If you are an employee and believe you have been induced, only to have your employment terminated, seek the assistance of an employment lawyer in order to receive fair compensation.

I Am Paid a Salary: Am I entitled to Overtime Pay?

| November 6th, 2017 | No Comments »

It is a misconception that salaried employees are not entitled to overtime. There are no provisions in employment standards law that exempts salaried employees from overtime entitlements. In fact, employers that claim salaried employees are not entitled to overtime, either in writing or through an implied contract, would be contracting out of employment standards law. This is prohibited. Overall, method of payment (hourly or set-intervals) is irrelevant in determining overtime entitlements.

What if my job title is ‘manager’?:

Managerial employees are not entitled to overtime pay, and thus overtime regulations do not apply. However, just because an employee’s job title has the word ‘manager’ within it, does not necessarily mean he/she is exempt from overtime regulations. To be exempt, employment duties have to be managerial in nature. If your job title is ‘manager’ but you have no one reporting to you, do not have the authority to discipline, set schedules, promote, etc, then you are likely not exempt from overtime provisions under employment standards law.

Overtime laws vary from province to province, so it is important to have an awareness of the overtime regulations that apply to you. In Ontario, for instance, employees are entitled to overtime pay for hours worked in excess of 44 per week. Certain provinces, such as BC, also have daily overtime pay for hours worked in excess of 8 and 12. Be sure to check your provincial regulations to know for which hours you are entitled to overtime pay.

Frustration of Contract and Long Term Disability Benefits

| November 2nd, 2017 | No Comments »

Employers should be familiar with the concept of frustrated contracts in employment law. Frustration considers what the parties (employer and employee) could reasonably contemplate at the time the employment agreement was made. Put simply, when an event occurs that prevents a worker from performing the essentials of their job, then the contract may become frustrated since this was unforeseen at the time the employment contract was agreed upon.  If so, the employment relation can end with no severance owed to the employee.

When an employer offers long term disability benefits (LTD), this may create a situation where the employer should have seen the possibility of a disability preventing an employee from working at some point in the future. This is because the employer could have reasonably contemplated this as a possibility when employment offers or subsequent entitlement contain LTD benefits. Essentially, LTD benefits offered by an employer will create a situation where an employer will find it more difficult to argue an employment contract has ben frustrated, which was the case in Antonacci v. Great Atlantic & Pacific Co. of Canada.

 In this case, the court stated that the provision of LTD benefits shows that the employer was able to contemplate the possibility of a lengthy leave of absence during the course of employment. In particular, the employee here was a long term worker that eventually had to take an extended leave. The fact that the employee had been with the employer for a long period of time and the provision of LTD benefits made the employer’s argument of frustration harder to prove.

When faced with an employee on an extended leave it is necessary to take a holistic analysis of each fact. Proving frustration is a high burden, and having an employee on a long term leave lasting 2 or more years does not necessarily frustrate the employment contract. It is advisable to seek the advice of an employment lawyer when faced with such a situation.

Frustration of Contract vs. Just Cause: What is the difference?

| November 1st, 2017 | No Comments »

There are various ways an employer may end an employment relation. An employer may end a contact by offering an employee advanced notice or equivalent payment of wage and benefits required under legislation or common law. Another way is dismissing an employee for just cause or by establishing the contract has been ‘frustrated’. In each of these scenarios, there is no payment or notice required. There is an onus on the employer to prove there is just cause to dismiss or that the contract has been frustrated, which makes it important to understand the difference of each principle.

The principle of ‘just cause’ requires an employer to show that an employee has done wrongdoing to the point that continued employment is unfeasible. For single instances of wrongdoing, the wrongful act must result in violating an essential characteristic of the employment relation. For instance, if a mortgage broker was found to commit mortgage fraud, this would undeniably violate an essential element of trust required between a mortgage broker and the brokerage firm (employer). Another scenario of just cause is where an employee has repeatedly failed to correct an undesirable behaviour after several corrective measures have been taken by the employer. This must include a series of progressive discipline consisting of, for instance, a verbal warning, then written warning, paid suspension and then termination, with each stage specifying the wrongful behaviour and next possible steps of discipline.

Conversely, frustration of contract results when an employee no longer is able to perform as intended when the parties each entered into the employment agreement. The changes in performance must be significant in order for dismissal to be lawful. Such a scenario may take place when an employee has fell ill to the point where he/she cannot perform the essential duties of the job. To establish frustration of the contract, analysis of the job duties and nature of the frustration must be carefully considered. For instance, if the employee occupied a distinct position with no other employees occupying a similar function, a long term absence will cause more frustration than if there were many employees able to cover the tasks of the employee during the absence. Whatever the case may be, careful examination and consideration must be given. Always seek services from an employment lawyer as errors in legal obligations may result in significant costs and harm to each party.

Are you required to pay your employer a penalty if you resign?

| October 25th, 2017 | No Comments »

Question:  I am a registered nurse.  My employer has created a contract stating I must repay $50,000 if I leave before 5 years and each year of employment the amount to repay will decrease by 10k. (Year 1 I owe 50k, yr 2 i owe 40k…yr 5 I owe 10k).   their reasoning was that they have lost 2 nurses before me both staying only 2 years and they will have to spend their time (at least 1 yr) to train me hands on and this time is valuable as are the training seminars that they will send me to.   Is this enforceable if I leave before 5 yrs?

Answer: If you are a unionized employee, your first step should be to go to your union representative to discuss why your employer would ever think to attempt to include such a severe stipulation in your agreement.

If you are not unionized, let your employer know that the clause is unenforceable as it would act in restraint of trade. Restraints of trade are viewed with justifiable suspicion by the law. The clause in practice would in effect bind the employee to the employer because the shorter the employee worked, the less likely they would be to leave the employment of their own free will knowing that they would have to pay back a significant amount of money to the employer.

In addition, in the eyes of the law, the clause is viewed as a “penalty” and would be considered unconscionable, which simply means that the bargain is too unfairly one side and is therefore unreasonably excessive. Courts have consistently invalidated employment contract provisions that are unconscionable. In this scenario the fact that the employee is required to pay their employer if they leave before five years certainly is unreasonably excessive and unenforceable given that there is no rational connection between the five year repayment requirement and the cost or time to train the new employee.

When I retire, can I keep health care benefits?

| October 18th, 2017 | No Comments »

Question:  I have been employed by the same company for 22yrs and am 63 yrs old. Health care benefits are provided by the company and reduced benefits were available if you are over 60 when you retire. It was announced recently that no benefits will be provided for people that retire after Dec 31/17. I was planning to work for a few more years. I do not have a formal contact.  Is this legal?

Answer: This is most likely illegal. Retiree health care benefits, if offered by an employer, are extremely important to retirees and their families. They could be considered a fundamental part of your compensation package and a form of deferred compensation for contributions that you have made to the company over the course of your career (i.e. like a long-term incentive plan). Since the retiree benefits were available to you until now, when you are on the cusp of retirement, you reasonably expected that these benefits would be available on retirement and arguably planned your affairs taking these benefits into account.

As such, unless you signed an employment contract or the employer had a written policy that you knew about, which specifically and clearly provided that the company had a right to amend or cancel the retiree benefits at any time, the company cannot simply take away this benefit, without providing proper notice to you.
In this case, you did not have a written employment contract (and I assume there is no policy), so the employer could not have reserved the right to eliminate the retiree benefit plan at any time. This means that the only way the employer could take away the retiree benefits from you while you are still working is by giving you “reasonable notice” of the change. Here, the employer proposes to put the changes into effect within mere months – this is not proper notice. The employer should have given you 18-24 months of notice if it wanted to make a significant change to your contract. You, therefore, have grounds to challenge the elimination of the benefits in December 2017 and a potential claim for constructive dismissal.

Can an employer impose a longer probationary period than 3 months?

| October 17th, 2017 | No Comments »

It is common knowledge for employment probationary periods to last for three months from the commencement of the employment relation. Under minimal standards employment law (for example, the Employment Standards Act in Ontario), employers do not owe any notice or pay in lieu before 90 days. This is often believed to constitute the probationary period. Minimal standards legislation, however, does not contain any provisions on probationary periods, and as such, they may extend past 3 months.

Employers that implement probationary periods past 3 months must consider additional factors. If the probationary period extends past three months, employers will at the least owe an employee a week of notice or pay in lieu for termination of the employment contract. In the event that no termination clause is agreed upon or the clause violates minimum standards law, ‘reasonable’ notice established through common law will apply, which may entitle the employee to considerable more notice or pay in lieu. Employers that wish to limit the termination pay to the legal minimum of 1 week between 3 -12 months of employment would require a termination clause that complies with minimal employment legislation.

It is also advisable to include the probationary period within the employment contract. This way it can be shown that both parties contemplated an extended probation period and that it was mutually agreed upon. Otherwise, an extended probationary period may constitute a breach of contract by the employer.

Always seek services from an employment lawyer when seeking to implement the aforementioned clauses and limitations.