Two Years of Severance Awarded to Dedicated Employee

| September 26th, 2016 | No Comments »

severanceDaniel Lublin was once again successful in obtaining one of the lengthiest severance awards for an employee in Ozorio v. Canadian Hearing Society.

The Court awarded our client 24 months payment of salary and benefits following her termination and entirely accepted our position that even with our client’s competence and experience she would have a difficult time obtaining a similar job.  The Court accepted our position that 30 years of service and a dismissal at age 60 ought to result in a significant severance payment and mentioned that our client was justified in declining a 1 year severance package which the employer ought to have known was insufficient.

With respect to our client’s dedicated service the Court concurred that her lengthy period of employment was likely to be a serious impediment in finding another job.  Specifically, having virtually no work experience outside of that obtained through her former employer placed our client at a competitive disadvantage in obtaining new employment.

Further, this was yet another Whitten & Lublin decision where the Court agreed with our view that an employee 60 years of age or older must be entitled to greater severance.  The Court cited our past cases of Hussain v. Suzuki Canada Ltd. and Leeming v. IBM Canada Ltd. to confirm that “age is an impediment” for older worker’s seeking new employment.  Simply, the job market is difficult for older workers competing with younger, more recently trained and likely less expensive talent.

If you have been dismissed consider consulting the experts at Whitten and Lublin for an informed assessment of your severance.

Author: Paul Macchione, Whitten & Lublin

The Danger of Social Media in the Workplace

| September 16th, 2016 | No Comments »

social mediaSocial media has become the driving force of most workplaces.  Just a short time ago, it was barely on a company’s radar as a means of driving production or sales; it was commonly viewed as a nuisance to be avoided in the workplace, dismissed as a means for depraved millennials to get the company into trouble.

Today, social media is seen in a much different, far more positive light by most forward-thinking organizations.  Now companies use LinkedIn to track new recruits; salespeople pump their Facebook contacts to find leads; Twitter has become an effective (and free!) advertising tool.  Even formerly fringy operations like Instagram and Snapchat have found in a legitimate home in offices around Canada.

Despite the power of social media to disseminate and promote, it can still expose companies to potential workplace transgressions – often in the blink of an eye.  Employees have an easy means of speaking without authority on behalf of their employer, posting unfortunate work-related photos of themselves, using social media to of publicly vent about their boss, and so on.

For these reasons, it’s become imperative for workplaces to have a well-drafted social media policy emphasizing the Do’s and Don’ts for employees and contractors who work with their company.  By doing so, companies can ensure employees understand how to communicate effectively using social media – both within and outside the workplace – and what the consequences could be if they don’t use it properly.

 

Author: Daniel Chodos, Whitten & Lublin

Important Internship Laws for Employers and Interns

| September 8th, 2016 | No Comments »

internshipsIn 2014, Ontario’s Ministry of Labour conducted an inspection blitz in connection with unpaid internships.  Of the 56 companies investigated, the Ministry issued 36 orders regarding non-compliance with the Employment Standards Act, 2000.  The inspection underscored the unlawful manner in which unpaid interns are being used across the province.

The default law in Ontario that applies to interns is that a person who conducts work is entitled to be compensated accordingly.  This principle encompasses laws regarding minimum wage, vacation, hours of work, public holidays, notice of termination, and so on.  As a general rule, this means that unpaid internships are illegal.

The Ministry of Labour has stated six rules that apply to unpaid internships, all of which must be satisfied in order to avoid reprimand:

  1. The intern must receive training that is similar to that which would be provided in a vocational school;
  2. The training is for the benefit of the intern, i.e. through acquiring knowledge and skill;
  3. The employer derives little benefit, if any, from the activity of the intern;
  4. The intern’s training does not take away someone else’s job;
  5. The employer does not promise the intern a job at the end of the internship; and
  6. The employer has told the intern that they will not be paid for their time.

Points 2 and 3 are particularly important.  The focus is not simply on what the intern is doing, but also on what they are receiving from the internship.  Similarly, point 6 requires the employer to confirm in advance of the internship that there will be no compensation, rather than remain silent on the point, or confirm at a later stage.

Employers who do not strictly abide by these rules may find themselves liable for an intern’s salary, overtime, vacation pay, public holiday pay, notice of termination, and other employment standards entitlements.

An exception to this rule applies to students enrolled in a program approved by a university or college of applied arts and technology.  When in doubt, the employer should compensate the intern as if they were an employee.

 

Author: Marc Kitay, Whitten & Lublin

Accommodating Mental Illness in the Workplace

| August 23rd, 2016 | No Comments »

Accommodating mental illnessAccommodating mental illness is an extremely complex area for employers to navigate.  Unlike physical disabilities, the need for a mental health accommodation is often difficult to detect, and the employee’s medical prognosis can often be less predictable than a physical disability.   An employee may also be reluctant to ask for accommodation due to fear of stigma associated with mental illness.  However, employees are legally protected against discrimination or harassment on account of a disability, including a mental health disability.  In fact, employers have a legal duty to accommodate mental illness in the workplace.

When does Mental Illness Trigger a Duty to Accommodate?

Some mental health problems do not rise to the level of a recognized disability under human rights legislation.  For instance, a generalized complaint of ‘stress’ in the workplace, does not on its own amount to a disability.  There must be at least a diagnosis of some recognized mental disability, or clinically-significant symptoms, as identified from a health professional.  Examples of recognized mental health disabilities include generalized anxiety disorder, depression, alcohol addiction, or drug addiction. This is by no means an exhaustive list.

A diagnosis of a mental illness does not automatically trigger a duty to accommodate.  Many mental illnesses may be successfully managed or treated without the need for a workplace accommodation.  The duty to accommodate a mental illness is only triggered if there are work-related needs arising from the disability.

How is an Employer Required to Accommodate Mental Illness?

Accommodating mental illness can take a variety of different forms, such as a reduced work schedule, a leave of absence, or modified work duties.  Accommodations are meant to enable the employee to meaningfully participate and integrate into the workplace.  There is no single solution for accommodating mental illness.  Each case requires an individual assessment of the worker’s job requirements, their medical restrictions and needs.

Who gets to decide on the Accommodation?

The employer is not required to implement the employee’s preferred or ideal accommodation.  The obligation is only to implement a reasonable accommodation, considering the employer’s business operations and the employee’s medical restrictions as described by objective medical documentation. Even though the employee’s preferences are not decisive, accommodation is a two way street and should generally involve a dialogue with the employee, and the employer should take the employee’s input into consideration.

What if it is Not Feasible to Accommodate the Employee’s Disability?

The employer has a legal duty to accommodate to the point of “undue hardship”.  Accommodation often entails some inconvenience, cost or disruption to an employer, and these concerns are not necessarily an adequate justification against accommodation.   Speculative or anecdotal concerns about cost, health and safety or employee morale are not adequate excuses for refusing to accommodate mental illness. Concrete and objective evidence of undue hardship must be provided.   According to the Ontario Human Rights Commission, the cost standard should be a high one and in order to prove undue hardship, an employer should prove that costs are “so substantial that they would alter the essential nature of the enterprise or affect its viability.”

What are the Employee’s Responsibilities?

An employee seeking a mental health accommodation has a duty to cooperate in the accommodation process. This means that the employee should notify their employer of the disability and their accommodation needs, to the extent possible.   This includes sharing necessary medical information for the purposes of implementing an accommodation.

In many cases, the mental health disability itself my impact the employee’s decision-making, their ability to disclose, seek treatment or cooperate in the accommodation process.  When an employee is unable or refuses to disclose their accommodation needs, this makes implementing an accommodation particularly challenging for an employer.  In some instances, if the employee is able to reasonably communicate their accommodation needs but refuses to, the employer may not be required to accommodate the employee.

However, if an employer reasonably suspects that an employee may be suffering from mental illness and may need accommodation, the employer has a legal duty to inquire and assess the need for a possible workplace accommodation.   It is not a sufficient defence that the employer was unaware of the employee’s accommodation needs, when the employer ought reasonably to have known that the employee has a disability.

Can an Employer Ask for Objective Medical Information?

There is a fine balance between protecting an employee’s right to privacy of their medical information and the employer’s right to know the employee’s medical needs.  An employer is entitled to ask for objective medical documentation confirming the worker’s medical restrictions and the expected duration of the medical restrictions.  A one-liner handwritten note from a physician may not be sufficient to provide a reliable diagnosis of a mental illness, and the employer may be entitled to more specific information pertaining to the employee’s health condition.  However, the worker is not required to disclose detailed diagnosis or treatment information if that information is not necessary for the purposes of implementing an accommodation.

The employer is required to keep medical information confidential, and keep it on a needs to know basis for the purposes of handling an accommodation.  For instance, information pertaining to medical restrictions may need to be shared among certain human resources personnel and the employee’s supervisor(s), who may be required to implement the workplace accommodation.

 

Author: Jonquille Pak, Whitten & Lublin

The Laws Regarding Employee Monitoring Software

| July 28th, 2016 | No Comments »

facebook at workEmployee monitoring software serves one primary purpose: to make sure employees are doing what they are supposed to.  It can be installed on computers and other devices and can track an incredible amount of information.

For example, while some software simply tracks when employees log on / off their devices or what websites they visit, other software can go much farther.  For example, some can track every keystroke made by an employee.  That can include keystrokes in personal, web-based emails that employees thought would remain private.  Other software includes the ability to replay each word typed and every move of a cursor.

However, just because the software makes these things possible, does not mean that employers should be using them.  In many cases, they should not.  For example, its use may breach an employee’s reasonable expectation of privacy.  This will depend on whether the company specifically prohibits the use of company devices for personal matters, how invasive the software, whether the software is used secretly or with the employee’s knowledge and consent, and many other factors.

Even if it doesn’t breach an employee’s expectations, using monitoring software may breach privacy legislation.  PIPEDA – the Personal Information Protection and Electronic Documents Act – and various provincial acts limit how many private organizations in Canada may collect, use and disclose personal information.  In most cases, organizations would need an individual’s consent before even collecting that information, much less using it.  As a result, keystroke monitoring that happens to catch an employee typing an email about a personal matter – such as a personal medical issue or their financial circumstances – may result in an inadvertent breach of the legislation.

In other words, employers should think carefully about whether they need to use monitoring software and, if so, how to ensure that they only use it with the proper controls, policies and consents in place.

For their part, however, employees also need to beware – many people work in environments where there is no reasonable expectation of privacy or where the information being collected is not ‘personal’ and could, if discovered, put their job at risk.

 

Author: Stephen Wolpert, Whitten & Lublin

Pokémon GO vs. Work FLOW

| July 26th, 2016 | No Comments »

 

no pokemon at work

In case you have been living under a rock for the past month the Pokémon GO game craze has hit Canada.   Players catch, trade and battle Pokémon that pop into existence alongside real-world physical objects when viewed through a smartphone.  A large element of the game requires players to travel to various locations to engage Pokémon.

In less than one month Pokémon GO is reported as being on more than 6 percent of Android devices in Canada, it is the most downloaded app in the history of the App Store and in the past weeks it has had more active users than twitter with more engagement than Facebook.

The game’s level of engagement means a number of people are playing it during their working hours and productivity is likely impacted.  After all, employees have been reported to have left the workplace on unscheduled, unapproved and extended breaks to catch or train Pokémon.  The result at this time seems to be a number of amusing signs posted in workplace but the concern should be greater and knowledge around the topic of time wasting should be understood and properly monitored.

Generally, an employee found playing games on company time does not justify a termination for cause.   Stated differently, catching Pokémon during working hours is unlikely to justify a dismissal without proper notice or payment in lieu of notice.  A termination with cause is regarded as the capital punishment of employment law and time wasting of this sort is not enough to justify it.

Despite the above, various factors could influence a judge to uphold a just cause dismissal.  For example, a disciplinary record tied to time wasting / time theft; game playing while driving or using company equipment (putting the safety of others at risk), an employee’s senior level, game play on a company issued devices, frequent game play, attempts to conceal or deny the misconduct and/or an intentional violation of a company cell phone, hours of work, internet or distracted driving policies may justify a with cause termination.

pokemon go work

Employees should be mindful that even though it is unlikely that their employer can justify a termination for cause on account of Pokémon GO game play they are certainly not free from serious consequences.  Most of Canada’s non-union employers can still impose other discipline and certainly terminate without cause.  Stated differently, employees can be fired for playing the game so long as an employer provides notice of that termination or makes payment in lieu of notice.  If a valid termination clause is in the employment contract the employer might only need needs to provide a few weeks’ notice before the employee becomes a full-time Pokémon GO hunter and Employment Insurance collector.

It will not be long before Pokémon GO results in reported dismissals but don’t let the excitement cloud your reality.  If you have any questions on this topic or other areas of employment law consider contacting our team to assess you situation.  If you are looking for well thought out options our team is well equipped to “catch ‘em all”.

 

 

Author: Paul Macchione, Whitten & Lublin

Know Your Religious Rights in the Workplace

| July 6th, 2016 | No Comments »

religious rights in the workEmployees have a right to be free from discrimination in the workplace that is based on their religious rights.

Discrimination occurs when an employer makes a distinction that has the effect of excluding the employee, denying benefits, or imposing burdens on the employee on the grounds of his or her religion. “Religion” includes practices and beliefs that are part of the employee’s faith or creed.  It does not include personal moral, ethical or political views.

Some forms of religious discrimination are obvious and direct.  For example, an employer’s policy not to hire people from a particular religious group is clearly discriminatory.

There are also less obvious forms of discrimination.  For example, an employer’s policy to have employees work a particular day of the week may have a discriminatory effect on religious groups who require that day off as their holy day.

Many people think that, as long as discrimination is not intended, it does not exist in the workplace.  This is a misconception.  Discrimination may be found regardless of one’s intention to discriminate.  What is important is whether the conduct does, in fact, have a discriminatory effect on the employee.

Where discrimination exists, employers are required to make modifications in the workplace to accommodate the employee’s religious practices.  The exception to this rule is if accommodation would cause the employer undue hardship because of cost, or health and safety reasons.  Employers would be able to avoid accommodation if they can prove that their business cannot sustain the costs of accommodating an employee’s religious practices.  However, the employer must have made significant attempts to accommodate before such a claim can succeed.  There have been very few cases where employers have been able to meet this onerous burden.

If you believe you have been discriminated in the workplace because of your religion, or would like to learn more about your religious rights, contact one of our lawyers today.

Author: Ozlem Yucel, Whitten & Lublin

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.

Vacation

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.

Consistency

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