U.S. employer refuses to pay Canadian employee’s wage

| September 29th, 2014 | No Comments »

When a U.S. employer refuses to pay a Canadian employee’s wage and claims they are not within the jurisdiction to file a claim, the employee has options.  The foundation of an employer/employee relationship is that in exchange for an employee’s hard work, the employer pays a salary.  Simply because the employee works from home in Ontario for an employer in the U.S., does not mean that the employer/employee relationship functions any differently.

Daniel Lublin, Toronto employment lawyer provides reader’s with his response to the question, can a Canadian employee file a claim against a U.S. employer for wages owed?  His answer is yes.  You can commence proceedings against the employer in either Ontario or the U.S. state where the business is located. Although choosing where to pursue the claim is a matter of strategy.

Initiating the claim in Canada can be more costly for a number of reasons. Mr. Lublin explains that the best option is to hire a lawyer in the U.S. state where the business operates and explains in more detail the reasoning for this.

Read more about this topic in Daniel Lublin’s Globe and Mail column and full article My U.S. employer owes me $36,000 and refuses to pay

An employee’s legal rights to disability payments

| September 25th, 2014 | No Comments »

An injury or health complication can cause an employee to seek disability payments and/or modified work. Where disability plays a role, the insurance company is responsible to make payments to the employee.  Suddenly payments stop and the insurance company declares that you are capable of working in a different work environment. Can the insurance company do this?

In his most recent Globe and Mail article, Daniel Lublin, Toronto Employment lawyer discusses the term “disability” and how the definition evolves, usually after two years.  It is at this point that the disability insurance policy clause comes to have a different meaning which changes your legal rights to disability payments. In order to continue to receive benefits, an employee has to show that they are unable to perform any job, not just your own. Just as the employee has an obligation to prove that they are unable to work, an insurance company bears the same responsibility to prove the contrary.

Read Daniel Lublin’s Globe and Mail column and full article Can my employer cut off my disability payments?

The workplace computer and your legal rights

| September 23rd, 2014 | No Comments »

workplace computerA termination of employment can give rise to a number of factors that can cause frustration. Whether you are a long term or short term employee, you may or may not decide to save your personal files on your workplace computer.  If you save them on your workplace computer, what are your legal rights to them upon termination?

Daniel Lublin, Toronto Employment lawyer gives his response in his most recent Globe and Mail article where he says that the distinction between a picture hanging on your workplace wall and a picture stored on your workplace computer is very little. The factors used to establish if the contents in a workplace computer belong to the employer are: whether or not an employer authorizes the use of a workplace computer for personal use and/or a contract that states the photographs or documents belong to the employer.

To find out more, read Daniel Lublin’s Globe and Mail column and full article, My company fired me and won’t give me my pictures.

Your employment rights regarding mental illness therapy

| September 3rd, 2014 | No Comments »

An employer-employee relationship can be impacted as a result of mental illnesses.  Depending on the diagnosis, these illnesses sometimes require medical treatment or counseling that may or may not be of interest to the employee.  While the employee has legal rights, so does the employer.  Readers want to know, when an employee refuses to accept treatment or counseling, are these grounds for termination and is counseling mandatory?

Employment LawyerDaniel Lublin gives his opinion and explains to readers that an employer’s request for mandatory therapy is illegal and discriminatory in nature.  Similarly, terminating an employee for refusing to participate in treatment is also discriminatory.  There is of course an exception to the rule which he explains is difficult to show.  Managing mental illness includes various types of therapy, which make matters for an employer that much more complicated. Misunderstanding these rules and terminating an employee for failing to attend mandatory counseling can lead to a human rights complaint.

It is always best to consult with an employment lawyer who can give you expert advice.  Daniel Lublin’s full article Can someone be fired for refusing therapy? can be read in his Globe and Mail column.

Is Mandatory Retirement Legal?

| August 15th, 2014 | No Comments »

Every employee is entitled to be protected and accommodated according to the law, based on certain grounds.  Two grounds for discrimination leave employees wondering what their legal rights are; age discrimination and sick leave based on disability.

Readers ask, is mandatory retirement legal? Daniel Lublin, Toronto Employment lawyer explains in his recent Globe and Mail article that mandatory retirement is in fact illegal. Employees are protected from age discrimination and cannot be forced to retire at 65 or any other number. The exception to this rule is where age plays a role in an employee’s ability to perform.

Another scenario is where employers will sometimes contract the services of third-party disability management firms to assist their employee’s in adjudicating their claims for benefits. The questions that arise from this situation are: are third-party firms entitled to information regarding my health condition? And what are my rights in relation to confidentiality and privacy?  Mr. Lublin explains that if you don’t provide the required health information, you can be denied benefits. These firms normally do not share your health information with employers.

Daniel Lublin’s full article Does mandatory retirement apply to contractors? can  be read in his Globe and Mail column.

Your legal rights when dealing with a recruitment agency

| July 28th, 2014 | No Comments »

Most often young graduates will list their names with a recruitment agency in hopes of finding employment opportunities faster than searching on their own. However, time goes by and after a period of unemployment, you decide to search on your own. You find that some employers refuse to hire you because the agency submitted your name first, without your permission. Since the employer is expected to pay a fee of your wages, this does not sit well with them and those opportunities are lost. What steps do you take to prevent this from happening in the future?

Daniel Lublin gave his opinion in the Globe and Mail article on this subject. What he explains is crucial to continuing your search efforts. Firstly, you need to terminate dealings with the agency immediately. Whether or not there is a signed contract, they do not have the legal right to continue to act on your behalf without your authorization or consent. Secondly, send a letter to the agency’s director confirming that your dealings with them are over and that they are not permitted to continue to use your name for future searches. If they are still reluctant to do so, advise them of your intent to consider your legal options. Their unethical practice may be halting your employment opportunities. If at any point you believe that an employer may be conflicted with this issue, clarify to them that you are not associated to any agency.

To find out more on the topic read the full article published in the Globe and Mail, “A recruiter is sabotaging my son’s job search”.

Publicly criticizing your employer – Is it considered misconduct?

| June 6th, 2014 | No Comments »

Nothing is more public than expressing your work frustrations and criticizing your employer on social media sites and the internet.  This is not the smartest idea considering the workplace consequences and the potential damage to your career.

As Daniel Lublin, Toronto Employer Lawyer explains in his latest Globe and Mail article, “An employee’s public comments about his employer can be considered misconduct where those statements are harmful to the employer’s interests or damaging to its business. One reason is that employers can be exposed to liability because of statements made by their employees”.

Employees can speak their mind privately or publicly as long as their comments don’t negatively affect their employer’s business.  It is always wise to consider how the employer will feel about the statement, the consequences and whether voicing your opinion is worth the trouble it may cause you.

To find out more on the topic from a legal perspective, read Daniel Lublin’s article in the Globe and Mail, Speaking your mind can hurt your career.

Failure to investigate alleged misconduct can be costly

| April 2nd, 2014 | 1 Comment »

It is not uncommon for employers to fire first and ask questions later, especially in instances of alleged employee misconduct. Stelcrete Industries Ltd., a rebar assembly plant in Welland, Ontario learned that impulsive actions can be costly.

Stelcrete Industries Ltd. chose to stay open on Family Day and told Ludchen, the plant supervisor, to post a written announcement of their substitute day off. An undercover investigator posing as a Stelcrete employee informed management that although she did not witness the occurrence she was told that the supervisor “freaked out,” threw a garbage can and then made a discriminatory remark about the ethnicity of the company’s owners when he was told to post the announcement. Satisfied that Ludchen was guilty of misconduct the company immediately fired him.

At a recent trial to determine whether the supervisor was wrongfully dismissed, Ontario Superior Court Justice Joseph Henderson ruled in favour of the former supervisor because Stelcrete was unable to connect the man’s alleged comments back to him. The undercover investigator’s testimony about what others told her was hearsay, and none of the other employees who testified corroborated the alleged remarks.

What Daniel Lublin, employment and labour lawyer at Whitten Lublin PC advises is that, “When dealing with alleged employee misconduct, the onus is squarely on the employer to prove that the punishment fits the crime.”

Without first investigating the situation, or at least confronting the employee with its accusations, Stelcrete was unable to provide the evidence required to convince the judge that the company acted correctly. As a result, the former supervisor was awarded his legal costs, 12 months’ pay and damages in lieu of his benefits and a bonus he ordinarily received.

In his Globe and Mail article, Don’t fire first and ask questions later Lublin summarizes Ludchen v. Stelcrete Industries Ltd., 2013, and offers employers advice on how to proceed with investigating allegations of misconduct before dismissing an employee.

Dealing with unpleasant issues in the workplace

| February 27th, 2014 | No Comments »

In almost every workplace you will find employees with different backgrounds, habits and styles that can be distracting or annoying, especially when it comes to poor personal hygiene, including body odour, bad breath, etc.  Knowing how to address those issues without crossing any legal lines can be challenging.

In his recent Globe and Mail article, What can we do if a colleague emits a strong odour?, Daniel Lublin answers some commonly asked questions from readers, such as dealing with an employee’s poor hygiene and individual severance entitlements.

Daniel Lublin’s quote on this topic is summed up below: “Some of the causes of the odour could be protected under human rights laws (age, race, religion, disability), which means discipline or dismissal is prohibited unless you can show she cannot perform the job you hired her for because of the smell. If the smell is because of poor hygiene, then you have more options and can treat this as any other form of non-compliance with the company’s expectations.”

For this reason, it is always wise to consult with an employment lawyer who will explain what your rights are and give you a legal opinion and strategy regarding workplace issues. To learn more, Mr. Lublin’s article can be found here.


Your employment law questions answered

| January 21st, 2014 | No Comments »

Do you have any questions regarding severance, termination packages, or any other legal questions regarding employment law? Today, at noon Daniel Lublin will be online in the Globe and Mail answering your workplace law questions. Make sure to join!