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Keeping Employers Advised on Developments in Labour and Employment Law

Employment and Labour Law Reform Bill Passes Second Reading

Posted in Employment, Labour Relations
Tim LawsonMatthew Demeo

In addition, the Ontario Government will seek public input on occupations currently exempted from the Employment Standards Act, 2000.

Bill 148, the Fair Workplaces, Better Jobs Act, 2017 has passed Second Reading and is now one step closer to becoming law. Bill 148 proposes significant changes to Ontario’s Employment Standards Act, 2000 (“ESA”) and Labour Relations Act, 1995 (“LRA”).  As we recently reported, Bill 148 underwent some changes this past summer at the Committee Stage. Most significant perhaps, was the addition of a standalone Domestic or Sexual Violence Leave under the ESA which would allow employees with a least 13 weeks of service to take up to 17 weeks of unpaid leave per calendar year.

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Ontario’s Employment and Labour Law Reform Bill Continues to Undergo Changes

Posted in Immigration
Tim LawsonMatthew Demeo

Just as the summer winds down, we have an update on Bill 148, the Fair Workplaces, Better Jobs Act, 2017.  Those who tuned-in for the McCarthy Tétrault webinars on Bill 148 will recall that public consultations were to be held across the province in July to elicit feedback on the draft Bill.

Following the public consultations, we understand that Bill 148 will undergo some adjustments before it is introduced at Second Reading in the Ontario legislature, including:

  • addition of a 17 week, unpaid Domestic or Sexual Violence Leave;
  • clarification that the paid emergency leave days will be paid at straight time and not at an overtime or shift premium rate;
  • an exemption for weather-dependent businesses from the mandatory 3 hours of pay when shifts are cancelled on less than 48 hours’ notice; and
  • an exemption for emergencies or threats to public safety from the right to refuse work on less than 96 hours’ notice.

The majority of Bill 148 still seems to be intact, including the minimum wage increases and equal pay for equal work. The actual language of the amended Bill 148 will likely be available once the legislature resumes in September, prior to Second Reading. We will provide further updates on the status and content of the Bill as it progresses.

In the interim, if you have any questions about The Fair Workplace, Better Jobs Act, 2017 and how it will impact your workplace, do not hesitate to contact Tim Lawson, Matthew Demeo or any lawyer in our Ontario Labour and Employment Law group.

Federal Government Restores Former Certification and Decertification Processes for Unionization in Federal Workplaces

Posted in Federally Regulated Employers, Labour Relations, Union Certification, Unions
Tim LawsonJustine LindnerAkiva Stern

Three years ago, the Federal Government passed the Employees’ Voting Rights Act, which reformed the Canada Labour Code’s certification and decertification rules for federally regulated workplaces.

The most significant change was the removal of the 50 year old “card check” system. Card check allowed a union to be automatically certified without a vote when it could demonstrate that the majority of the employees in the proposed bargaining unit has signed membership cards and paid a nominal fee.

The other change was lowering the threshold for support for decertification from 50% +1 to 40%.

In Bill C-4, An Act to amend the Canada Labour Code, the Parliamentary Employment and Staff Relations Act, the Public Service Labour Relations Act and the Income Tax Act, the current Federal Government has reversed those changes.

Bill C-4 Restores the Former Certification and Decertification Requirements

Bill C-4 comes into force on June 22, 2017 and restores the certification and decertification processes to their prior status.  The key amendments to the Canada Labour Code under Bill C-4 are as follows:

Certification

  • Mandatory secret ballot for all certification votes is repealed. A secret ballot vote will now only be required where a union demonstrates evidence of support of 35-50% of the proposed bargaining unit.
  • If a union provides membership evidence of more than 50% of the employees in the proposed bargaining unit, the union may become certified without a secret ballot vote.

Decertification

  • Bill C-4 raises the threshold for decertification of a union from 40% back to 50% +1.

Financial Disclosure Obligations

  • Bill C-4 also repeals the financial disclosure obligations of unions set in motion through Bill C-377 under the Income Tax Act.

Transition Provisions: How Does Bill C-4 Affect Recent Applications for Certification or Decertification?

The amendments to the Canada Labour Code under Bill C-4 will only apply to applications for certification or decertification filed with the Canada Industrial Relations Board after June 22, 2017.  Any applications filed with the Canada Industrial Relations Board prior to June 22, 2017 will be subject to the requirements and thresholds under the previous Bill C-525.

In the Pipeline for 2017: The Right to a Flexible Work Arrangement

The Federal government continues to deliberate over how to provide full-time federal employees with rights to flexible work. We expect to see proposed amendments to the Canada Labour Code in the coming months. We also expect to see changes which limit unpaid internships and introduce an 18 month parental leave.

If you have any questions with respect to these changes or the Canada Labour Code more generally, please contact any member of our National Labour & Employment Group.

Beyond the Final Report: Government of Ontario charts its own course following the Changing Workplaces Review

Posted in Employment Standards, Labour Relations
Tim LawsonSean PorterMatthew Demeo

Last week, we reported on the Government of Ontario’s release of the Changing Workplaces Review Final Report, which comprehensively reviewed Ontario’s Employment Standards Act, 2000 (the “ESA”) and Labour Relations Act, 1995 (the “LRA”). Today, the Government of Ontario announced its intention to introduce The Fair Workplace, Better Jobs Act, 2017 in response to the 173 recommendations provided by the Final Report.

Notably, the Government of Ontario has proposed several changes that were either not among the recommendations put forward in the Final Report or that substantially diverge from the Final Report’s 173 recommendations, including:

  • Increasing the general minimum wage from $11.40 to $14.00 per hour on January 1, 2018 and then to $15.00 per hour on January 1, 2019. According to the announcement, distinct minimum wage rates for categories of specified workers (e.g. students, liquor service, hunting and fishing guides) would be maintained, though these wage rates would also be increased for 2018 and 2019.
  • Providing 10 days of personal emergency leave (PEL) to all employees per year, including two paid PEL days. According to the announcement, the 50 employee threshold for PEL entitlement would be eliminated. Employers would also be prohibited from requesting a sick note from an employee taking PEL.
  • Prohibiting the misclassification of “employees” as “independent contractors”. Employers who misclassify employees in this manner may be subjected to prosecution, including public disclosure of a conviction and monetary penalties. However, the definition of “employee” under the ESA will not be expanded to include a dependent contractor.
  • Establishing card-based union certification for the temporary help agency industry, the building services sector and home care and community services industry.
  • Preventing employers from disciplining or discharging employees without just cause in the period between certification and the conclusion of a first collective agreement, as well as during the period between the date the parties are in a legal strike or lock-out position and the conclusion of a new collective agreement

The Government of Ontario has also opted to include several significant recommendations from the Final Report, including:

  • Enhancing employment standards enforcement by hiring up to 175 more employment standards officers. Once these officers are hired by 2020-2021, their aim will be to resolve all claims filed within 90 days and to inspect 1 in 10 Ontario workplaces.
  • Allowing unions to access employee lists and certain contact information, provided that the union can demonstrate that it has achieved  support of 20% of the employees involved.
  • Allowing the Ontario Labour Relations Board (OLRB) to consolidate newly certified bargaining units with other existing bargaining units under a single employer, where those units are represented by the same bargaining agent.

Should the proposed legislation pass, as it is expected to, most of the revisions to the ESA will become effective January 1, 2018.  All revisions to the LRA will come into effect six months after the Act comes into force.

The Government of Ontario is expected to introduce the final legislation in the coming months and we will continue to report on its development through the legislature. If you have any questions about The Fair Workplace, Better Jobs Act, 2017 and how it will impact your workplace, do not hesitate to contact Tim Lawson, Matt Demeo, Sean Porter, or any lawyer in our Ontario Labour and Employment Law group.

Government of Ontario releases the Changing Workplaces Review Final Report

Posted in Employment Standards, Labour Relations, Policies
Tim LawsonMatthew Demeo

The Government of Ontario has now released the much anticipated Final Report of the Changing Workplaces Review. The product of a two-year comprehensive review of employment and labour laws in Ontario, the Final Report contains 173 recommendations that could significantly alter the landscape for workplaces across the province.  Although currently only recommendations, the Government of Ontario has already announced that it will release its proposed “action plan” within the coming weeks. 

Yesterday, the Government of Ontario finally released the Changing Workplaces Review Final Report which comprehensively reviews Ontario’s Employment Standards Act, 2000 (the “ESA”) and Labour Relations Act, 1995 (the “LRA”).  Readers of this blog will recall that we reported regularly on the progress of the Changing Workplaces Review since it was announced back in February 2015.

The Final Report is over 400 page in length and contains 173 recommendations. This document could significantly alter Ontario’s workplaces and will likely reverberate across Canada.  While the recommendations have not been adopted by the Government of Ontario, the Government has already announced that it intends to respond to these recommendations with its own proposals within the coming weeks.

As a quick reminder, the Changing Workplaces Review was given a specific mandate from the Government: to address the prevalence of vulnerable workers and precarious employment. Many of the 173 recommendations are therefore a reflection of that agenda and could have potential to increase rates of unionization in sectors where unions have traditionally had low representation.

Despite the breadth and depth of the recommendations a number of trade unions immediately commented that the recommendations in the Final Report do not go far enough. Several union press releases have urged the Government of Ontario to go beyond the recommendations and enact further measures such as card check certification, automatic first contract arbitration, and sectoral bargaining.  Unions are also seeking paid sick days and an increase in the minimum wage to $15 per hour, despite neither being included as recommendations in the Final Report.

It remains to be seen how the Government of Ontario will react and respond to the Final Report. All indications are that we will find out soon and we will provide further updates.

In the interim, the Labour and Employment Group at McCarthy Tétrault LLP has reviewed the Final Report and released a paper titled The Changing Workplaces Review & the Potential Effects on Employers.  If you would like a copy of this paper, or have any questions about the Changing Workplaces Review and how it will impact your workplace, do not hesitate to contact Tim Lawson or Matthew Demeo, or any lawyer in our Ontario Labour and Employment Law Group.

 

Occupational Health and Safety Legislation and Manslaughter Charges – An Important Reminder for Employers and Supervisors

Posted in Ministry of Labour, Occupational Health and Safety
Justine LindnerPeter BradyBen Ratelband

On October 31, 2016, the Québec Superior Court issued its decision in R v. Fournier, concluding that a business owner’s breach of occupational health and safety legislation supports his committal to trial on a charge of manslaughter under the Criminal Code.

The circumstances leading to this decision began on April 3, 2012, when a worker replacing a sewer line in a trench died due to the collapse of the trench walls.

Mr. Fournier, the owner of the business employing the worker, was personally charged and committed to trial for (1) criminal negligence causing death under section 220(b) of the Criminal Code and (2) involuntary culpable homicide (also commonly referred to as manslaughter) under section 222(5)(a) of the Criminal Code.

During the preliminary inquiry, the prosecution led evidence to show that the walls of the trench were not supported and that the material excavated to create the trench was deposited too close to the opening of the trench. The judge at the preliminary inquiry found that the evidence demonstrated that the employer’s obligation to take reasonable measures to ensure worker health and safety, and in particular, to secure the walls of an excavation or trench, were not met.

Criminal Negligence Charge

Many employers will have heard of Bill C-45, legislation which first came into effect in 2004 to amend the Criminal Code. Among its amendments to the Criminal Code, Bill C-45 imposed the legal duty on persons directing work to take reasonable steps to prevent bodily harm to the person performing the work, or any other person, arising from the work or task. Bill C-45 also contained provisions allowing for organizations and representatives to be charged with negligence and other offences. Section 220(b) of the Criminal Code, under which Mr. Fournier was charged, provides that “every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable to imprisonment for life”. To date, there have not been many prosecutions of organizations or their representatives relating to workplace health and safety under the criminal negligence provisions in the Criminal Code.

Mr. Fournier did not contest the decision of the judge at the preliminary inquiry to commit him to trial on the charge of criminal negligence causing death.

Manslaughter Charge

Section 222(5)(a) of the Criminal Code, under which the second charge was brought against Mr. Fournier, provides: “a person commits culpable homicide when he causes the death of a human being by means of an unlawful act”.  The penalty for manslaughter is similarly that the person is guilty of an indictable offence and liable to imprisonment for life. The significant issue for employers and supervisors to take away from this decision is that the prosecution relied on Mr. Fournier’s violations of occupational health and safety legislation as the “unlawful act” to trigger the application of this provision of the Criminal Code.

Mr. Fournier challenged the decision of the judge at the preliminary inquiry to commit him to trial under section 222(5)(a), arguing that, contrary to the judge’s decision, the breach of occupational health and safety legislation is not an “unlawful act” that can support the committal to trial on this charge. The concern raised by Mr. Fournier is that the provisions of the occupational health and safety legislation are “strict liability” offences.

When alleged breaches of occupational health and safety legislation are prosecuted outside the criminal law context, the Crown only has to prove beyond a reasonable doubt that the accused was responsible for the actions leading to the breach of the legislation for the accused to be found liable. In the normal course, the accused then has the burden to prove, on the balance of probabilities, that he is not liable because he has satisfied the requirements of the due diligence defence, taking all reasonable steps in the circumstances to avoid or prevent the occurrence of the prohibited act. However, in a criminal matter, the Crown must prove the guilt of the accused beyond a reasonable doubt and the burden of proof would not flip to the accused as it would in a typical prosecution under occupational health and safety legislation.

The Québec Superior Court agreed with the judge at Mr. Fournier’s preliminary inquiry and supported the committal to trial, setting out the burden of the prosecution where the charge of manslaughter is based on an underlying strict liability offence to prove each of the following elements beyond a reasonable doubt:

  1. The accused committed a strict liability offence which was objectively dangerous.
  2. The conduct of the accused constitutes a marked departure from the conduct of a reasonable person in the same circumstances.
  3. Having regard to all the circumstances, a reasonable person would have foreseen the risk of bodily harm.[1]

Applying this test to the evidence presented at the preliminary inquiry, the Québec Superior Court concluded that the evidence was sufficient for a committal to trial, finding:

  1. The contravention of the obligation to firmly brace the walls of an excavation established in section 3.15.3 of the Security Code constitutes a strict liability offence under section 236 of the OHSA. This offence is objectively dangerous.[2]
  2. Failure to comply with this obligation is a marked departure from the conduct of a reasonable person.[3]
  3. A reasonable person should have foreseen the risk posed by the failure to put a solid brace in place.[4]

While the court suggests that the standard of demonstrating a “marked departure from the conduct of a reasonable person” requires the Crown to demonstrate more than just a breach of occupational health and safety legislation (as would be the regular course in a prosecution of that breach in provincial offences court), it is not clear from the decision what evidence presented by the Crown during the preliminary inquiry met that higher burden to support this finding.

What Does This Decision Mean for Employers and Supervisors?

The decision of the Québec Superior Court underscores that the potential criminal liability for employers and supervisors is not only found under the criminal negligence provision brought in by Bill C-45. While the decision does not create new law, it does establish potential criminal liability for workplace accidents through a previously unused avenue – a violation of a provincial health and safety statute as an unlawful act to support a manslaughter charge.

We continue to see increasing public statements and political advocacy by Unions and other organizations supporting workers for the police and prosecutors to more readily embrace and use the Criminal Code in serious workplace accidents and fatalities. Consequently, employers, supervisors and their legal counsel should be mindful of this avenue of risk going forward.

It is unclear how the court will address the due diligence defence at a criminal trial given that the accused bears the burden of proving a due diligence defence on a balance of probabilities in a typical prosecution under occupational health and safety legislation, but that in a criminal trial, the burden of proof must remain with the Crown. This issue will eventually need to be addressed by the courts.

In any event, this decision provides employers and supervisors with yet another reason to ensure compliance with occupational health and safety legislation and to fully document and, where appropriate, increase training and other due diligence efforts.

If you have any questions about this decision or occupational health and safety matters generally, please contact any member of our Labour & Employment Group.

 

[1] R. v. Fournier, 2016 QCCS 5456, para. 80

[2] R. v. Fournier, paras. 83-84.

[3] R. v. Fournier, para. 85.

[4] R. v. Fournier, para. 86.

Hiring Seasonal Workers for the Holidays? 10 Things Employers Need to Know

Posted in Employment, Employment Agreements, Employment Standards, Hours of Work, Occupational Health and Safety, Overtime, Pay, Recruiting, Retail, Seasonal/Temporary Employees, Termination, training, Wage and Hours
Justine Lindner

As retailers and other seasonal employers gear up for the holiday rush, many hire additional temporary staff to ensure they are ready for crowds of shoppers and extended holiday hours.

In preparation for this time of year, we made a list (and checked it twice!) of issues that Ontario seasonal employers should keep in mind in relation to these employees:

Recruitment & Hiring

  • Avoid Human Rights Concerns in Interviews. When hiring employees to work during the holiday season, it may be tempting to ask questions which directly or indirectly result in the disclosure of information relating to the prohibited grounds of discrimination, such as a candidate’s family status or religion. While it is reasonable to confirm the candidate’s availability to work on certain dates, the person conducting the interview should use their judgment and ensure that they do not require the candidate to explain why they have (or lack) certain availability.
  • Employment Contract. Get it in writing! Whether the employment contract is for a fixed term or for an indefinite period, the contract should contain a termination clause limiting the employee’s entitlement to the minimum notice and benefits continuance required under employment standards legislation (or a greater entitlement, if that is your intention). If your company’s standard termination clause has not been recently reviewed, consider contacting your lawyer to confirm its enforceability.
  • Agreement to Work on Sundays & Public Holidays. To ensure that expectations are clear, employers should ensure that employees hired for the holiday season agree in writing to work on Sundays and on public holidays at the time of hiring. Ontario employment standards legislation provides that an employee of a retail business hired after September 4, 2001 does not have the right to refuse work on Sundays if they agreed in writing at the time of hiring to work on Sundays, unless they are refusing to work because of religious belief or observance. Employees who qualify for public holiday pay can agree in writing to work on a public holiday and to be paid public holiday pay and premium pay for all hours worked on the public holiday or to be paid regular wages for hours worked on the public holiday and receive a substitute holiday for which they are paid public holiday pay. Where an employee has agreed in writing to work on Sundays or on a public holiday, the employee can later decline to work on a Sunday due to religious belief or observance or on the public holiday by giving the employer at least 48 hours’ notice before the start of the scheduled shift.

Employee Training

  • Seasonal Employees Must Receive Training. New employees may be more likely to make mistakes or to cause or incur injuries because they are unfamiliar with the workplace and applicable procedures. Employers must provide all the training that is statutorily required for its workers to its seasonal or short-term employees. This training includes those requirements set out under the Occupational Health and Safety Act and the Accessibility for Ontarians with Disabilities Act. Employees are entitled to be paid for the time they spend in training.

Compensation

  • Minimum Wage & Overtime. As of October 1, 2016, the general minimum wage rate in Ontario is $11.40/hour and the student minimum wage rate is $10.70/hour. The student minimum wage rate only applies to students under the age of 18 who work 28 hours a week or less when school is in session or work during a school break. In Ontario, an employee is generally entitled to 1.5 times their regular rate of pay for every worked in excess of 44 hours in a week.
  • Vacation Pay. Seasonal employees are entitled to the accrual of vacation entitlements under employment standards legislation, even if they will not have an opportunity to take vacation before their employment ends. If the employees do not receive their vacation pay on each pay cheque, accrued and unpaid vacation pay must be paid when they take vacation or following their termination from employment.
  • Public Holiday Pay – the “Last and First Rule”. An employee who fails without reasonable cause to work all of their last regularly scheduled day of work before the public holiday or all of their first regularly scheduled day of work after the public holiday will not qualify for public holiday pay. This is commonly referred to as the “Last and First Rule”. An employee also will not qualify for public holiday pay if they fail without reasonable cause to work their entire scheduled shift on a public holiday if they had previously agreed to work that day.

Scheduling Work

  • Hours of Work. Preparing the employee work schedule for the holidays is no easy feat, particularly when the employer needs to account for extended or irregular holiday hours. Employers must ensure that they comply with employment standards legislation in setting the hours of work for their employees during the holiday season. In general, the maximum hours of work permitted under Ontario employment standards legislation is 8 hours a day (more if the regular work day is longer than 8 hours) and 48 hours per week. The legislation also sets out minimum requirements for rest and eating periods.
  • Split Shifts. Unless there is an agreement in writing with the employee, employers must give employees a minimum of 8 hours off work between shifts, unless the total time worked on those shifts is 13 hours or less. If this is going to cause concern for the company’s scheduling during the holidays, the employer should consider obtaining the employee’s agreement in writing at the time of hiring.

Termination from Employment

  • Notice of Termination in Writing. Employers should ensure that seasonal employees are terminated in accordance with the clauses in their employment contracts. The employee must receive notice or confirmation of their termination in writing. As a matter of best practice, the written notice should be provided to the employee in person or by courier to ensure that there is no dispute the employee received it.

If you have any questions about hiring seasonal workers, or about any of the issues raised in this blog post, please contact any of the members of the Labour & Employment Group.  Happy Holiday Hiring!

Federal Accessibility Legislation in the Works

Posted in Accessibility, Accommodation, Accommodation, Disability, Federally Regulated Employers, Human Rights
Patrick PengellyTim Lawson

 

 

The Federal Government has recently commenced a nationwide consultation process with Canadians to inform the development of federal accessibility legislation.  Specifically, the government is seeking input on the following:

  • feedback on the overall goal and approach;
  • to whom would apply;
  • what accessibility issues and barriers it could address;
  • how it could be monitored and enforced; and
  • what else the Government of Canada could do to improve accessibility.

Thus far, there is limited opportunity for public oral consultation.  Brief in-person sessions are taking place in 18 cities across Canada.  These sessions began in September and will continue through to November.  A consultation schedule is available here.  Canadians may also participate by submitting an online survey , or through social media .

Several provinces have already introduced similar accessibility initiatives.  Of these initiatives, Ontario’s Accessibility for Ontarians with Disabilities Act, 2005 (“AODA”) is the only in-force legislative accessibility regime.   The public policy rationales for the AODA parallel the federal government’s initiative, including:

  • the pursuit of equality;
  • the inclusion of persons with disabilities;
  • the reflection of changing public understanding of disability in society; and
  • the elimination of barriers to accessibility for persons with disabilities.

In Ontario, the AODA is very broad in scope, applying to almost every person or organization in the public and private sectors of the Province of Ontario.  Manitoba and Nova Scotia have also taken substantive steps towards enacting accessibility legislation.  British Columbia is not yet at a legislative stage, but the government of British Columbia has held public consultations regarding accessibility issues, resulting in “Accessibility 2024”, a 10-year action plan.

Other than the limited initiatives above, disability law is generally otherwise confined to provincial building codes and human rights legislation, which address disability-related issues as a component part rather than as the primary focus of the statute. The Canadian Charter of Rights and Freedoms further guarantees equal protection and benefit of the law to persons with disabilities with respect to government action.  Also, the Canadian Human Rights Act and the Canadian Charter of Rights and Freedoms operate in the federal sphere as a forum for persons with disabilities to bring complaints of discrimination.

While the federal government is not yet at the legislative stage, it has set accessibility standards for federal buildings, the Internet and workplaces.  These accessibility standards apply to federal government agencies and Crown corporations only.

Until a federal scheme becomes clear, it remains to be seen how the federal government will integrate or ensure consistency with already existing provincial accessibility legislation; the federal government’s constitutional ability to legislate over and above the provinces’ existing standards remains questionable.  Similarly, in provinces where accessibility legislation has not yet been implemented, there exists the jurisdictional issue of whether such a scheme will be confined to the federal sphere, and if not, where the legislative authority for broader compliance measures will be derived from.

The federal government’s public consultation will be open until February 2017.

If you have any questions about this or any other accessibility-related issues, please contact any member of our Labour & Employment team.

Doing Business in Canada 2016: Read the latest updates to our popular guide

Posted in Employee Obligations, Employment, Employment Agreements, Employment Standards

McT_DBiC_Cover_3D_SEPT2016

McCarthy Tétrault’s Doing Business in Canada provides a user-friendly overview of central aspects of the Canadian political and legal systems that are most likely to affect new and established business in Canada. The newest edition reflects legislative changes including:

  • Changes to the Competition Act and Investment Act Canada;
  • and an updated Mergers and Acquisitions chapter including new rules on takeover bids in Canada.

General guidance is included throughout the publication on a broad range of discussions. We also recommend that you seek the advice of one of our lawyers for any specific legal aspects of your proposed investment or activity.

Download the updated guide

Employee Travel: Are Your Employees Accruing Overtime Along With Their Air Miles?

Posted in Immigration
Matthew Demeo

Under the Employment Standards Act, 2000 and Ontario Regulation 285/01, “work” is deemed to be performed when an employee is travelling on business, even if that time is non-productive and outside normal business hours. Here are some ways to minimize that liability.

Unless an employee is exempt from overtime, such as a manager, IT professional or a commissioned salesperson, the ESA and its regulations mandate that any time a person spends travelling on business (other than a normal commute) is time “worked” for the purposes of determining employee overtime entitlement.

That means that an employee who is required to fly to another city on business generally must be compensated for the travel to the airport, the time spent waiting at the airport, the time on the plane and the time getting to the final destination upon arrival.  This can be frustrating for employers as employees may be accruing significant amounts of overtime, while performing little or no productive work for an organization.

As a result, employers would be wise to (re)assess their policies and procedures surrounding business travel to help minimize their overtime liability. While it may be impossible to outright eliminate overtime accrual, employers interested in limiting overtime pay should consider the following strategies:

  1. Time off in Lieu of Overtime: If an employee agrees in writing, an employer may provide an employee with paid time off in lieu of overtime pay, which is to be provided at 1.5 hours for each hour of overtime worked.
  2. Averaging Agreements: Under an averaging agreement, an employee’s hours of work may be averaged over two or more consecutive weeks for the purposes of determining overtime entitlement. This may have the effect of diluting overtime liability as the extra hours an employee works in one week may be spread over a specified number of weeks.
  3. Scheduled Days off in the Work Week: Employers may provide an employee with days off in the work week so as to avoid having the employee exceed the statutory overtime threshold. For example, if you are aware that an employee will be doing 8 hours of business travel on a Sunday, consider having that employee take the previous Friday off in order to keep the total hours worked under the 44 hour weekly threshold.
  4.  Lower Wage Rate for Travel: Depending on the circumstances, employers can pay employees at a lower wage rate for time spent travelling on business, particularly if the time is non-productive. By taking this approach, overtime entitlement would be calculated at the employee’s average rate, thus reducing overtime liability. Employers would be wise to introduce this approach at the outset of the employment relationship as unilaterally imposing such a condition during the course of employment could result in employee resistance and possible issues of constructive dismissal.  Employers must also be careful to ensure compliance with minimum wage requirements.

In a nutshell, employers can and should be proactive in managing their overtime obligations and potential liability as it relates to business travel. Should your organization require assistance in reviewing and/or revising your policies as they relate to overtime or business travel, do not hesitate to contact anyone in our Labour and Employment Group.