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Ontario Employer Advisor

Keeping Employers Advised on Developments in Labour and Employment Law

Ministry of Labour Goes After Unpaid Internships

Posted in Employment Standards, Interns, Wage and Hours
Daniel Pugen

Lately, unpaid interns have been on the Ministry of Labour’s radar.  In June 2013 a policy statement was published which reminded employers that most unpaid internships run afoul of the Employment Standards Act, 2000 (“ESA”).  I wrote about this policy statement in a previous post.

In April 2014, arising out of a few high profile incidents involving the Walrus and Toronto Life magazine, the Ministry announced an enforcement “blitz” meant to determine whether unpaid interns in certain sectors of the economy were truly “interns” and therefore exempt from the ESA.  The results of that “blitz” have now been published.  Some of the notable findings:

  • The following sectors of the economy were targeted: advertising, public relations, computer systems design, consulting services and information services.
  • The Ministry issued 37 orders to employers in those sectors.
  • The Ministry recovered $48,543 from employers on behalf of individuals found to be employees (not interns) under the ESA.
  • The amounts recovered were for minimum wage, vacation pay and public holiday pay.

Employer Takeaways Continue Reading

Ministry of Labour “Rings Up” $240,000 from Retail Inspection Blitz

Posted in Employment Standards, Investigations, Policies, Wage and Hours
Daniel Pugen

A Ministry of Labour (“Ministry”) inspection is never a pleasant experience for employers. Ministry inspectors have very broad powers to enter the workplace and inspect company documents to ensure compliance with the Employment Standards Act, 2000 (“ESA”) or the Occupational Health and Safety Act (“OHSA”). Sometimes these inspections are random.  Sometimes they are initiated by an employee/union complaint. Most of the time, an employer is not aware or ready for an inspection.

Even though the Ministry has these powers, sometimes even a management lawyer has to give them credit. I say this because recently the Ministry of Labour has been quite transparent about its compliance/enforcement activities and the types of issues and sectors of the economy to be targeted for inspection. The Ministry calls these targeted inspections “blitzes” and publishes inspection activities on its website.

From October 2013 to December 2013 the Ministry targeted the retail sector. That “blitz” was discussed in this post in which I pointed out 5 common ESA violations (usually unknowingly) committed by retailers. The results of the Ministry retail ”blitz” have recently been published here. Retailers, and indeed all employers, should take note of the findings:

  1. 118 inspections were completed by the Ministry.
  2. Only 24 employers were fully compliant.
  3. 256 Ministry orders were made.
  4. The Ministry “recovered” $240,000 from retail employers on behalf of employees.
  5. Public holiday pay was the most common monetary violation (note: I am sorry to say that this validates my previous post listing holiday pay as a difficult compliance issue for retailers).
  6. Record keeping and failing to have certain agreements with employees (e.g. vacation pay on each cheque and excess hours of work) was the most common non-monetary violation.

Employer/Retail Takeaways

The results of the “blitz” are important. Approximately 80% of retailers were found to have violated the ESA and almost a quarter million was recovered.

The Government and the Ministry have been focused recently on younger workers and part-time labour (and many young and part-time workers are employed in the retail sector). The Ministry has been transparent with its activities by, essentially, warning industry that it will be targeted and even disclosing what employment standards will be audited. Accordingly, the Ministry may have less sympathy for employers who are not fully compliant.

Accordingly, ESA compliance needs to be something that is top of mind for retail employers.

As many retailers have head operations in the U.S. – with HR and senior management also in the U.S. – there is the potential for ESA issues to be overlooked. Someone from human resources or senior management should have specific responsibility for ESA compliance and consistent policies should be applied at all stores.  Retailers should also consider a human resources audit to determine risk. These issues should not be left to individual store managers. It is important to be proactive.

Taking these steps will ensure that when the Ministry comes knocking, it won’t find anything!

 

From the Desk of the HR Manager, August 2014

Five Advantages of Contracting Out Disability Claims Management

Posted in Policies
Melissa Kennedy

Melissa Kennedy is a labour relations, employment and human resources specialist who assists clients with proactively managing compliance, risk and ensuring best practices are in place.

Illness related absences can significantly impact an organization’s productivity and be quite costly as a result. In 2011, Canadians took an average of 9.3 sick days, costing the economy approximately $16.6 billion[i]. Accordingly, it is important that short and long term disability claims be managed effectively, with the express goal of safely returning the employee to work, in a timely manner.

There are a number of advantages for an organization to contract out the disability claims management process to a third party, including:

1.    Time

Managing the disability and return to work process can be a full-time job. Utilizing a third party to manage the disability claims process will allow the organization’s human resources department to focus their time on proactive and strategic HR processes, which add value to the organization.

2.    Expertise

Third party claims managers have internal subject matter experts who are knowledgeable about both physical and psychological diagnoses. These individuals are trained in appropriate treatments, time required for rehabilitation and can manage the entire process through to return to work.

Additionally, third party claims managers have access to benchmark data from other organizations and industries, allowing them to make relevant determinations.

3.    Consistency 

It is important that employees be treated fairly and consistently. Third party claims managers are able to ensure equitable treatment. Furthermore, both claimants and the organization have one point of contact, in order to ensure that the process remains on track.

4.    Impartiality

It is important that claims managers remain neutral and impartial. Having a third party manage the claims process will ensure that decisions are made objectively.

5.    Cost Control

Third party claims managers are able to offer flexible, short/long-term plan designs, customized to the needs of the organization. This will ensure that costs are contained and allocated appropriately.


[i] CBC News. (2013). Labour | Sick days cost Canadian economy $16.6B. Retrieved from http://www.cbc.ca/news/business/sick-days-cost-canadian-economy-16-6b-1.1864833

New Rule of Thumb: 6 Months’ Pay Per Year of Service?

Posted in Termination, Wrongful Dismissal
Benjamin Aberant

So much for the rule of thumb that an employee should receive one month of notice for every year of service. The Toronto Star has reported on a recent wrongful dismissal decision that Ontario employers should consider, especially when hiring senior managers or executives. Except for the 12 month notice period that was awarded, the facts of the case seem unremarkable. The company terminated, without cause, the employment of a 52 year old executive, who had 19 months of service.

The interesting part of the decision is that the executive, who had still not found work after 14 months, was then awarded a 12 month notice period. This is probably much higher than the company expected when it was considering the termination. If it had obtained a legal opinion prior to the firing, the advice was probably that the executive would be awarded a notice period somewhere around 6 months. Continue Reading

From the Desk of the HR Manager, July 2014

Organizational Dress Codes

Posted in Policies
Melissa Kennedy

Melissa Kennedy is a labour relations, employment and human resources specialist who assists clients with proactively managing compliance, risk and ensuring best practices are in place.

Employees act as the face of an organization and representatives of its overall brand and image. Appropriate and professional work attire is necessary in building and maintaining this distinct impression with customers and clients alike.

The type of industry and work environment that an organization operates in can certainly direct the expected level of attire. A more casual level of dress may be encouraged in a creative work environment, whereas more formal business attire may be suitable in a corporate setting.

It is important that an organization implement a comprehensive professional dress and image policy which sets guidelines and expectations, identifying attire which is, and is not, appropriate. Addressing inappropriate behaviour regarding unsuitable attire is important in ensuring that the organization’s brand and image is maintained. It is necessary that Managers and Human Resources enforce the policy in a constructive, respectful and tactful way. Also be mindful that employers may be required to be flexible with dress codes to deal with religious accommodation under human rights law. Moreover, in the unionized context, arbitrators will require that dress code policy be reasonable.

Examples of appropriate business-casual attire may include: Examples of inappropriate attire may include:
  • Blazers
  • Blouses
  • Casual collared shirts, knit tops, sweaters & turtlenecks
  • Golf shirts
  • Jackets
  • Shirt & tie
  • Sports Blazers
  • Vests
  • Casual dresses & skirts
  • Tailored walking shorts as part of a suit
  • Capri pants as part of a suit
  • Dress pants
  • Casual pants (dockers, cotton twill, corduroy, khaki type pants)
  • Tailored slacks
  • Dress sandals, loafers/flat shoes
  • Anything that is overly revealing
  • Sports jerseys
  • Sweatshirts
  • Tops with bare shoulders, backs or midriffs, tank tops, halter tops
  • T-shirts
  • Miniskirts
  • Shorts
  • Spaghetti strap dresses, slip dresses
  • Cargo pants
  • Denim pants
  • Exercise wear
  • Leggings
  • Athletic shoes
  • Flip-flops, beach footwear
  • Boating/deck shoes
  • Winter, hiking boots

Employers Should Take Advantage of Human Rights Summary Hearings

Posted in Discrimination, Human Rights
Daniel Pugen

Summary Hearings at the Human Rights Tribunal – A Short History

A few years back, the human rights system in Ontario was overhauled. The Human Rights Commission was to no longer investigate complaints and refer them to the Human Rights Tribunal (if they had some merit).  All cases were to now go directly to the Tribunal for adjudication. Applicants (who are primarily employees) would have “direct access” to the Tribunal.

While the goal was to speed up the process, many employers soon found themselves forced to attend a hearing to defend frivolous complaints. The Tribunal responded by adopting a summary hearing process, which can be initiated by the Tribunal or at the respondent’s request. Under this process, the applicant must demonstrate that the complaint has a “reasonable prospect of success”. The summary hearing usually occurs by teleconference with limited disclosure of documents. If the application is not dismissed, it moves on to a full hearing. Continue Reading

From the Desk of the HR Manager, June 2014

Posted in Policies
Melissa Kennedy

Melissa Kennedy is a labour relations, employment and human resources specialist who assists clients with proactively managing compliance, risk and ensuring best practices are in place.

Regular attendance is key to maintaining a successful, productive organization.  A full-time job cannot be performed by a part-time employee. An employee should be expected to come to work ready to perform the requirements of their job every day; excessive tardiness and absenteeism cannot be tolerated. Managing employee attendance is critical in maintaining an efficient and effective workforce, and creates a number of challenges for organizations.

Perhaps the most significant challenge presented by poor attendance is the impact to overall productivity. If employees cannot be depended on to come to work when scheduled, operations may be short-handed, which can lead to unnecessary costs. Additionally, other employees may be forced to take-on more work in order to compensate for the missing individual. This can have impacts on overall employee morale and engagement, where there may be a perception that the absent employee is not pulling their weight, or is being given special treatment.

Accordingly, managing attendance effectively should be a key priority for all employees. Here are some tips:

  1. Implement an attendance management policy and program which establishes expectations and identifies specific, progressive consequences for each level of infraction. Make sure it distinguishes between culpable and non-culpable absences.[i] For example, generally speaking, employees cannot be penalized for non-culpable absences (e.g. statutory leaves).
  2. Consistently apply and enforce that policy. Employers must be diligent and consistent in managing absenteeism, but it is important to be fair and flexible.
  3. The Employer has a statutory obligation to accommodate employees who are disabled. There may also be a requirement under a collective agreement. In meeting this obligation, employers should alter or modify work methods or schedules, as well as make facilities accessible wherever possible. Ensure that any accommodation is based on dialogue with the employee and that the employee is providing the necessary information (see next point) so that the accommodation can work.
  4. Wherever possible, it is recommended that medical documentation be provided by a specialist who is treating the employee, rather than simply a note from the individual’s family doctor. Remember that some collective agreements have restrictions on obtaining medical information. Employers should be diligent in ensuring employees justify their absence and in determining the employee’s restrictions and functional abilities, as they may be able to accommodate the individual.
  5. Document, document, document! Keep records which account for all interactions regarding an employee’s record of absenteeism.

 


[i] There are two types of absenteeism: culpable and non-culpable (or innocent). Culpable absenteeism refers to an unexcused absence for which the employee is blameworthy (e.g. sleeping in, no call/no show). Non-culpable (or innocent) absenteeism, refers to a recognized and approved excused absence (e.g. vacation, bereavement, etc.).

 

Ontario Court of Appeal puts the “Reasonable” back into “Reasonable Notice”

Posted in Employment Standards, Termination
Daniel PugenMatthew Demeo

Determining the actual notice period an employee is entitled to upon termination is often a frustrating exercise for employers. This is especially true of the more recent case-law which has tended to place more emphasis on certain factors (age and tenure) at the expense of other factors (nature of position and compensation). There have been widely divergent awards in recent years. This undermines the ability of employers to plan, with some certainty, for large scale restructurings and the required notice/severance to provide staff.

The recent Ontario Court of Appeal decision of Kotecha v. Affinia Canada Ltd, 2014 ONCA 411 (“Affinia”) is both a blessing and curse for employers. First, the good news.  The Court of Appeal has put the brakes on escalating awards for lower skilled and older employees. The employee was a 70 year old machine operator who had worked for the employer for twenty years.  He was originally awarded 24.5 months’ notice on a motion for summary judgment.  On appeal, the Court of Appeal concluded 18 months was appropriate. In making this reduction, the Court of Appeal has supported the general notion that notice periods in excess of 24 months will only be awarded in exceptional circumstances – according to the Court of Appeal, this was not such a case.     Continue Reading

Ontario Human Rights Commission Releases New Policy on Mental Health Disabilities and Addictions

Posted in Discrimination, Human Rights
Benjamin Aberant

On April 16th, we reported on a new policy published by the Ontario Human Rights Commission (the Commission) entitled Policy on Preventing Discrimination Because of Gender Identity and Gender Expression. Last week, the Commission published a new policy entitled the Policy on preventing discrimination based on mental health disabilities and addictions.

This new policy was created out of recognition that persons with mental health and disabilities “have faced considerable and longstanding discrimination, stigmatization and social exclusion in Canada and across the world”.   For Ontario employers, this is an important policy as the Ontario Human Rights Code (the Code), under the protected ground of “disability”, prohibits discrimination in employment on the basis of mental health disabilities and addictions. Continue Reading

Wal-Mart (Still) Pays High Price for Failing to Investigate Employee’s Complaint

Posted in Employment Standards, Investigations
Meaghan McWhinnie

A recent Ontario Court of Appeal decision Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419, is an important reminder to employers that failing to properly investigate allegations of harassment in the workplace can be incredibly costly.

Facts

Ms. Boucher was an Assistant Manager of a Wal-Mart retail location. After she refused to falsify a log book, the location’s Manager (Mr. Pinnock) became abusive towards her. Mr. Pinnock continuously belittled, humiliated and demeaned Ms. Boucher, often in front of co-workers, in the hopes that she would eventually quit.

Ms. Boucher tried to obtain help from Wal-Mart by bringing a compliant about Mr. Pinnock’s behaviour to management through the company’s “Open Door Communication Policy.” The policy permitted and encouraged employees to voice their workplace concerns to senior management in a confidential manner. In breach of the policy, Ms. Boucher’s request for a meeting with senior management was leaked to Mr. Pinnock, who then threatened her with reprisal for reporting him and subjected her to an “increasing torrent of abuse.” Despite substantial evidence of Mr. Pinnock’s abuse, including first-hand accounts from co-workers who described Mr. Pinnock’s actions towards Ms. Boucher as “ferocious” and “horrific,” Wal-Mart concluded that Ms. Boucher’s complaints were unsubstantiated and notified her that she would face discipline for making unsubstantiated complaints. Mr. Pinnock was neither disciplined nor even cautioned for his conduct . Continue Reading