Changes to the Human Rights Code and its impact

| March 18th, 2015 | No Comments »

In light of the 2008 changes to the Human Rights Code (Code), it is possible for an employee to file a wrongful dismissal lawsuit and receive Human Rights damages without first appealing to the Ontario Human Rights Tribunal. In Lee Partridge v. Botany Dental Corporation, the employee sued her former employer for wrongful dismissal and also requested compensation for family status discrimination under the Human Rights Code.

Ms. Partridge was an employee of Botany Dental Corporation for over 7 years. Her initial job title as a Dental Hygienist meant that her work hours were from 9:00 a.m. – 5:00 p.m. Once promoted to office manager she received the benefit of having flexible work hours. Soon after, Ms. Partridge went on maternity leave. Before her return, she was told that her position as office manager was not available to her and neither were the flexible work hours. The employer placed Ms. Partridge back into her initial title with extended hours and reduced pay. Ms. Partridge’s concern was her inability to set up child care arrangements where her work hours did not make it feasible. The Court agreed that she had been discriminated against on the basis of family status and was awarded human rights damages of $20,000.

Since the changes to the Code came into effect, Lee Partridge v. Botany Dental Corporation is of a select few of cases where the Courts have awarded damages of this kind.  The Courts have made an example of the employer’s obligation to accommodate legitimate child care needs not child care preferences. On the other hand, employees must prove that they have met their obligation of seeking reasonable child care arrangements but have found no feasible solution available.

Employment contracts and their validity

| March 6th, 2015 | No Comments »

There is the possibility that an employment contract may or may not hold up in Court.  This is why it is recommended that a legal professional review documents of this nature.

Daniel Lublin, Toronto employment lawyer discusses the importance of employment contracts as they relate to their validity and legal standing in Court, non-solicit/non-compete clauses, and the legal protection of contractors and disclosing of their income. Mr. Lublin has this to say:

  • When an employee signs a non-compete/ non-solicit clause, the Court will rely on the contractual language and will determine its validity. However, there are special circumstances where an employee has a key role and is considered as a “fiduciary”.
  •  As it relates to contractors, an employer must make it absolutely clear that an employee’s compensation is kept strictly confidential.
  • A signed contract is an important document that a Judge will rely on. When an employer attempts to retract the offer, even though it is signed, consult with a legal expert.

To thoroughly understand these topics, read Daniel Lublin’s Globe and Mail column and full article Can my employer stop me from working for a competitor?

 

Addictions in the workplace- can I fire my alcoholic employee?

| February 18th, 2015 | No Comments »

The workplace environment brings a number of people together under one roof which may include employees with addictions. There are no clear cut ways of identifying someone as an alcoholic. However, there may be signs during the course of employment that allows the employer or colleague to see that something is off. Perhaps, behavior changes, absence from work or mistakes etc. Though, how does one classify an individual as an addict or a mere social drinker? Can an employer fire an alcoholic? These questions cannot be taken lightly and require legal expertise.

Employers should take the appropriate steps to safeguard their workplace. They must also abide by the legislation that protects the affected employee. One simple error can be costly. In the past, an employer was legally allowed to fire an alcohol addicted employee. However, today, the Ontario Human Rights Code protects employees who suffer from alcoholism and classifies alcoholism as a disability. The following rules outline some basic procedures to follow:

1.         Employee’s with alcohol addictions are protected under the human rights law;

2.         Individual assessment is needed, the Zero tolerance policy is rarely accepted; and

3.         Document the harms done by the employee and use written warnings.

It is important to consider that these will vary accordingly as all situations are different. To protect your best interests and follow the law accordingly, consult with one of our lawyers who can provide expert advice.

Should I tell prospective employers about my disability?

| February 9th, 2015 | No Comments »

Disability is a factor that can affect your job search efforts.  For instance, there are disabilities classified as “invisible” disabilities that are not physically noticeable, such as Asperger syndrome. People who have this do not display any symptoms. However, it is considered a high functioning form of autism which can affect a person’s ability to read body language among other factors. This can potentially affect their social abilities and further, their employment.

Readers for the Globe and Mail have taken an interest on this topic and are curious to know; do prospective employers need to know that the applicant employee has a disability? What does the legislation say? Toronto Employment lawyer, Daniel Lublin advises that during the interview process, an applicant employee does not have an obligation to disclose this information if it does not affect one’s work performance. However, there are other factors to consider.

To understand more on this topic, read Daniel Lublin’s Globe and Mail column and full article I have Asperger syndrome. Should I tell interviewers?

Legal implications from 2014 workplace employment cases

| January 28th, 2015 | No Comments »

Big employment cases from 2014 drew a good amount of attention to workplace law. Specifically, it demonstrated the legal implications to employees and employers.  To date, we continue to see the consequences of these fallouts. Whether through poor judgment, ignorance of the law or quite simply wrongful conduct, Canadians and Americans have been at the forefront of workplace legal disputes. Some cases that have drawn media attention include the Jian Ghomeshi scandal regarding allegations of sexual harassment, Donald Sterling and his discriminatory comments, the two Liberal MP’s accused of harassment. The list goes on.

Toronto Employment Lawyer, Daniel Lublin discusses in his most recent Globe and Mail article five (5) key points to look out for regarding employment issues that arose in 2014, and will continue to have an impact in 2015. These include:

  1. The freedom of speech fallout;
  2. Behavior unbecoming;
  3. Probing Allegations;
  4. Boomers Beware; and
  5. Honesty is the best Policy.

To understand these key points in great detail, read Daniel Lublin’s Globe and Mail column and full article Fallout still spreading from big workplace cases

 

Affected by mass layoffs?

| January 22nd, 2015 | No Comments »

Recent events have caused mass layoffs of various employees, including Target, Suncor and SNC-Lavalin.  Employees affected are in the hundreds. Not knowing where to turn, most people resort to google searches. However, an internet search may be incorrect, misguiding, or may rely on a few factors. There are several factors that should be considered when determining an employee’s legal rights. These are usually based on a case-by-case basis.

Toronto Employment lawyer, Daniel Lublin knows all too well how a mass layoff can affect an employee. Below are the most common questions raised by dismissed employees:

1.         What is the difference between a layoff and a termination?

2.         Is it illegal for employees with less seniority than myself to receive more severance?

3.         Can I classify for employment insurance during a mass layoff?

4.         Following termination, should my benefits continue?

To read more questions and receive the full answer to these questions, read Daniel Lublin’s Globe and Mail Column and full article I’m part of a mass layoff. What rights do I have?

Age and severance packages

| January 14th, 2015 | No Comments »

Age has been noted as an important factor in determining severance.  When potential job candidates seek employment, chances are the younger candidate will have better chances of obtaining employment versus the older candidate. Readers of the Globe and Mail column asked, should an employee’s age be taken into consideration when an employer offers them a severance package? And how does this severance affect their Employment Insurance (EI) entitlement?

Daniel Lublin, Toronto Employment lawyer has answered these questions.  He explains that older employee’s should receive better severance packages. Realistically, this is not always the case. However, the Courts have been known to agree to this principal.  When it comes to EI entitlements, these benefits are paid to employee’s who are terminated without cause and are able to seek employment, but have been unable to find another job. Mr. Lublin explains that the benefit paid takes into account the severance payment offered.

Read Daniel Lublin’s Globe and Mail column and full article Should older workers get better severance packages?

Are Unpaid Internships Legal?

| December 18th, 2014 | No Comments »

Unpaid internships can be deemed as sketchy, even illegal in some cases.  That’s why Bank of Canada Governor, Stephen Poloz’s recent statement needs clarification. As youth unemployment rates have nearly doubled, he suggested that young workers should “get some real life experience…even if it’s for free.”  This may or may not work. To make such a recommendation, the youth must be forewarned about their legal rights and the precautions to take and be alert to avoid being exploited.

 In Ontario, employers do not have to pay students working under a high school co-op placement or an approved post- secondary school program. Unpaid internships are permissible under the following six (6) step criteria:

  1. The training is similar to that which is given in a vocational school;
  2. The training is for the benefit of the intern;
  3. The company derives little, if any, benefit from the activity of the intern;
  4. The training doesn’t take someone else’s job;
  5. The company is not promising a job at the end of training; and
  6. The intern was told that s/he will not be paid for his/her time.

Employers should review their unpaid internships program to ensure that they are in compliance with the criteria set out in the applicable employment standards legislation.

If an internship program does not fall within this scope and does not meet the above six (6) exceptions, the intern is required to be paid at least the Ontario minimum wage, among other things.  Failure to comply can result in penalties to the employers which can range from compliance orders, an order to pay back wages and fines.

Harassment complaints against MP’s

| December 12th, 2014 | No Comments »

Recently, the House Board of Internal Economy implemented a new process to deal with harassment complaints from Members of Parliament (MP’s) staff.  A separate committee continues to work on developing a process for complaints between MP’s themselves.  The House of Commons Policy on Preventing and Addressing Harassment has some valid points, but some areas still need some work.

David Whitten, Toronto employment lawyer explains that there are some good parts, like the Appeal and Alternative Dispute Resolution Procedure.  Other areas are in need of a spruce up.  The Chief Human Resources Officer should deal with all complaints as a non-partisan party.  We have already seen what happens when complaints go through the ‘Whips’ and it is even more problematic to have MP’s untrained in Human Resources dealing with complaints.  In addition, the required information in a formal complaint should include “desired resolution” as this is invaluable for determining the scope of an investigation.  Lastly, it contemplates an external investigator for every complaint.  There should be some flexibility to conduct an internal investigation when appropriate.

For employment law advice, based on your individual needs, consult with an expert who can guide you step-by-step and provide thorough legal advice.

 

How strict are non-compete clauses?

| December 4th, 2014 | No Comments »

Employee’s sometimes believe that non-compete clauses are valid subject to the size of their employer company. Many would be surprised to hear that this is not the case. If an employee works for company A and decides to move to company B, the employee should be vigilant about whether or not a non-compete clause exists and if it prevents them from working with company B.

Toronto Employment lawyer, Daniel Lublin clarifies in his Globe and Mail column that the belief that employers cannot prevent you from working within your industry is incorrect. In fact, judges will enforce clauses that are properly drafted. Experts in the field of employment law are people qualified to review these clauses and can advise you on whether or not they are enforceable. Leaving the strength of these clauses on pure chance is a very bad idea.

Read Daniel Lublin’s Globe and Mail column and full article Am I allowed to record conversations at work?