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

The Rise of Age Discrimination Lawsuits and Their Effect on Employers & Employees

| January 21st, 2016 | No Comments »

Age discrimination lawsuitsAge discrimination is where an employee is treated differently, or unequally, in the workplace on the basis of his or her age. Human rights legislation protects workers from age discrimination at every stage of their employment. This includes during hiring, while they are working, and when their work ends. Violating these laws may give rise to a lawsuit, which could result in a substantial monetary award.

Recently, age discrimination lawsuits are on the rise.  This is in part because age has become an important issue in the workplace.  The workforce is aging and without a mandatory retirement age in Ontario (with few exceptions), many older workers are choosing to stay in the workforce.  This has exposed employees to discriminatory practices and employers to age discrimination lawsuits.

The rise of age discrimination lawsuits is an important development for employers and employees alike.  On the one hand, employees understand that they are protected from age discrimination in the workplace and that they can seek recourse if treated differently on the basis of their age.  On the other hand, employers are better able to understand their legal exposure and how they can protect themselves from such claims.

If you are an employee who thinks you have been discriminated in the workplace because of your age – or if you are an employer who would like to learn more about your legal exposure to a claim of age discrimination – consult with an employment lawyer today.

Author: Ozlem Yucel, Whitten & Lublin

Your Rights When You Face Termination Without Cause

| January 5th, 2016 | No Comments »

A terminated employee is typically entitled to fair severance, unless he or she did something so serious to warrant losing it (called “termination for cause”).

An employee’s actual entitlement is determined by first looking at whatever deal they might have made with their company.  Such a deal – called a “termination clause” – is usually found in an “employment agreement” or in a similar but less formal document signed by both sides.  Very commonly, these arrangements are set by the company itself and are most beneficial to it.  Therefore, it’s important to try to negotiate early on before signing anything, with the assistance of a trained lawyer.

Courts will only allow arrangements that provide for at least the minimum amount(s) required by the government.  Because these arrangements are usually company-friendly, it is necessary to speak to an employment lawyer to determine if there is a legal basis to get a better severance deal than what it appears to say in the agreement.  Our firm regularly finds ways to get much better deals for terminated employees in circumstances that allow for it.  One example is where an employee is hired to do one job, is promoted several times, and then is terminated years later.  The termination section in the employment agreement that was initially signed likely won’t be accepted by the courts in that situation, since the employee is serving a totally different role by that point.

That decision could be the difference between a severance of several thousand dollars… or tens of thousands of dollars.

From an employer’s standpoint, because fair severance can become very costly, the safest thing to do is have an employment lawyer draft an agreement with a legally enforceable termination clause.  Too often, we see companies pulling agreements off the Internet, or using non-specialized lawyers to put them together.  This is a problem, because very often the law has changed, or a non-expert misses something of significance.  The agreements can go a step further to address other issues of importance to the business, such as post-employment obligations, confidentiality, and so forth.

Author: Daniel Chodos, Whitten & Lublin

Constructive Dismissal in Ontario: What Qualifies and Do You Have A Case?

| December 16th, 2015 | No Comments »

Constructive dismissalVery simply, a constructive dismissal is when an employer makes fundamental changes to an employee’s job that are unfavourable to the employee. The employee may resign and demand a severance package as though the employer terminated the employment relationship.   Examples of constructive dismissal may include:

  • a demotion
  • pay cut
  • change in work location
  • change in schedule
  • change in job duties
  • intolerable conditions in the workplace, such as harassment, discrimination or toxic work environment

A constructive dismissal may not necessarily be a single fundamental change, but a series of incremental changes that on the whole, represent a substantial change to the employment relationship.

Workplaces are not static. Change is inevitable and it is not uncommon for employees to dislike certain changes to their job. However, not all changes will amount to a constructive dismissal. For example, a change in job location that may entail an extra half hour of commuting time, while inconvenient, probably would not amount to a constructive dismissal. Conversely, a change in location that may add several hours of additional commuting time is more likely to amount to a constructive dismissal.

In order to have a valid claim for a severance package from your employer, the change has to be a substantial departure from the existing employment relationship, and it would be unreasonable in the circumstances to continue working. It is important that you obtain legal advice about whether you have a claim for a severance package before you consider leaving your job.

Author: Jonquille Pak, Whitten & Lublin