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Ontario Employer Advisor

Keeping Employers Advised on Developments in Labour and Employment Law

Mental Health Matters

Posted in Accommodation, Mental Health, Occupational Health and Safety, Policies

Today is Bell Let’s Talk Day which serves as a great reminder about the importance of promoting discussion and dialogue around mental health. For employers, there are various challenges associated with addressing mental health which includes the identification, accommodation and organizational approach to the issue. To help combat the stigma and negative perceptions around mental health, today is a good opportunity to focus attention on the legal framework, accommodation process and best practices surrounding mental health in the workplace. Continue Reading

Overtime Pay and the Cost of Non-Compliance: Three Misconceptions About Overtime Pay in Canada

Posted in Policies, Wage and Hours
Tim Lawson

If you’re like most Canadian employers, it is likely you have not looked deeply into your overtime pay obligations.

My experience in acting for employers as a partner in Labour and Employment law at McCarthy Tétrault is that many companies unknowingly violate overtime pay requirements and, as a consequence, have accumulated significant financial liability.  Here are three common misconceptions employers have regarding overtime pay requirements:

1. Paying a fair and fixed salary “covers off” overtime. Wrong. Most salaried employees are not required to punch in or to formally record their time.  However, a fixed salary and a flexible work environment do not negate overtime pay obligations.  An employer is still responsible for calculating and paying overtime when its non-managerial employees work hours that qualify for overtime pay.  It is critical that employers have a process to monitor and control overtime hours for all eligible employees, whether salaried or not.

2. If the employee chooses to work longer than standard hours on a fixed salary, it is his/her responsibility. Not true. Consider this common scenario.  A salaried employee works fewer hours in some weeks and more in others due to the usual ebb and flow of the workload, but generally his hours average out at 40 per week.  Your company’s business picks up but you decide not to hire additional staff.  Without being asked by his manager, the employee starts coming into work early, eating lunch at his desk, leaving late and responding to numerous emails on evenings and weekends.  Soon, the employee’s new “normal” is 50 hours a week. In Ontario, any hours over 44 per week is considered overtime and payable at time and a half.  So, unbeknownst to you, this salaried employee is racking up a weekly entitlement to 6 hours of overtime pay on top of his base salary.

3. Claims are rare. This is simply not true. Today’s work environments are evolving and workers are more knowledgeable about their rights. It is now expected that a terminated employee will seek legal advice about the reasonableness of the employer’s severance offer and demand more. The discovery of a hidden overtime claim by the employee’s lawyer will increase the demand and the liability. The liability magnifies if numerous employees are part of the same “downsizing”. In a recent class action case,  a group of laid off workers is claiming unpaid overtime totaling over $1,000,000.

The point is this:  an organization has to be proactive in assessing its compliance with basic employment regulations.  Otherwise, plaintiff-side lawyers and/or government regulators will have a field day challenging your practices and procedures.

At McCarthy Tétrault, we have developed an HR Compliance & Risk Management Diagnostic tool.  We use it to help employers achieve compliance with employment regulations, reduce the risk of individual employee claims and multi-employee class actions, and mitigate reputational damage caused by embarrassing litigation.  We see it as an invaluable tool in helping employers and HR managers navigate increasingly complex employment laws and their inherent nuances.

Sexual Harassment in the Workplace: Not just a human rights issue, but safety as well

Posted in Occupational Health and Safety, Policies
Matthew Demeo

New legislation will require employers to revise their workplace harassment policies, procedures and training by Summer 2016

Earlier this year, we wrote about the Government of Ontario’s plan to address sexual violence and harassment in Ontario.  By way of update, Bill 132, Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2015 proceeded to second reading on December 2, 2015. Having only been introduced a month ago, this indicates that the Ontario Government is quickly moving forward with that plan.

Most important for employers are the amendments to the Occupational Health and Safety Act (“OHSA”) which bolster protections from workplace harassment.  Bill 132  proposes to amend the OHSA definition of “workplace harassment” to include “workplace sexual harassment” which is defined as:

  • engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or
  • making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome.[1]

In addition, Bill 132 proposes to add a caveat to the OHSA to clarify that reasonable action taken by an employer or supervisor relating to the management and direction of employees is not workplace harassment.

Further, Bill 132 proposes the imposition of statutory duties upon employers to protect employees from workplace harassment, including:

  • investigating incidents and complaints of workplace harassment;
  • informing the parties to a workplace harassment complaint of the results of the investigation and any corrective action that will occur;
  • developing programs and procedures for employees, which will be reviewed annually, regarding workplace harassment, including:
    • the reporting of incidents;
    • the investigation process;
    • how the investigation information will be kept confidential, except for the purposes of taking corrective action or required by law; and
    • training under the programs and procedures.

Unlike other workplace investigations under the OHSA, the results of a workplace harassment investigation will not have to be shared with the Joint Health and Safety Committee.

Bill 132 also seeks to broaden the powers of Ministry of Labour inspectors and proposes to allow inspectors to require an employer to conduct an impartial investigation into workplace harassment, at the employer’s own expense.

While we have summarized the key employment law changes, it is also important to note that Bill 132 also seeks to (i) require public and private colleges and universities to implement sexual violence policies and procedures; (ii) allow victims of sexual assault or domestic violence to terminate a lease early; and (iii) remove the limitation period for (a) proceedings based on sexual assault and (b) applications for victim compensation for survivors of sexual assault and domestic violence.

We will continue to provide updates as Bill 132 progresses through the Legislature.  In the interim, if you have any questions regarding the proposed changes,  please contact our Labour and Employment Group.

[1] These definitions are similar to what is currently found in the Human Rights Code (Ontario).

Festive Celebrations and the Workplace

Posted in Discrimination, Employee Obligations
Kate McNeill-Keller

With the holiday season in full swing, employers are in the midst of the annual balancing act between festive celebration and appropriate workplace conduct. As the saying goes, an ounce of prevention is worth a pound of cure.  Here are some tips for planning and hosting a successful and (hopefully) incident free workplace holiday party.

1.  Alcohol Consumption

Many holiday parties involve the provision of alcohol to employees.  In an effort to prevent over-consumption, consider (i) setting a fixed period of time where alcoholic beverages will be served; (ii) providing a controlled number of drink tickets per guest; (iii) hiring an independent bartender who has experience and training to identify, prevent and address over-consumption; (iv) having designated sober employees who can monitor to ensure that everyone is consuming alcohol safely, and (v) serving food and non-alcoholic beverage options.

2.  Location & Transportation

Consider holding the party offsite and plan ahead to ensure safe transportation options for employees and guests when they leave the event, such as (i) the pre-arrangement of designated drivers, (ii) the provision of taxi-chits or (iii) the hiring of a local transportation company.  Make sure that transportation options and expectations regarding the use of personal vehicles (i.e. that employees don’t drive home) are well-communicated in advance of and during the event, including by having someone at the door of the venue as employees leave to ensure that they are making good decisions regarding transportation.

3.  Prevention of Discrimination

Given the diversity of our workplaces, ensure that holiday parties remain non-denominational in nature and provide alternatives to the consumption of alcoholic beverages to ensure that the event is not perceived to be (or actually) exclusionary.   Consider also maintaining a work-appropriate dress-code and communicating that expectation to employees in advance of the event.

4.  Prevention of Harassment

It is almost inevitable that at events such as holiday parties, there is an increased risk of inappropriate behaviour. In advance of the event, remind employees of your expectations regarding mutual respect, professional workplace conduct and the treatment of co-workers and guests, including by distributing a copy of your harassment policies and code of conduct in advance of the event.  During the course of the event, consider having certain employees responsible for monitoring conduct and identifying problematic behaviour, so that incidents can be addressed quickly, discretely and effectively before they result in harm or embarrassment.

Happy Holidays and all the best to you and your workplace!

McCarthy Tétrault launches Québec Employer Advisor blog

Posted in Employment Standards, Labour Relations

McCarthy Tétrault launched its 14th blog today, Québec Employer Advisor, to help clients manage the challenges they face in today’s workplace. The blog provides employers and HR professionals with analysis of the latest legal issues that affect employment-related practices, labour and human resources policies in Québec. In addition to providing clients with insights on the implications of new case law, as well as updates on the latest legislative and regulatory developments, the blog will be regularly updated with practical tips, specifically relevant in the Québec marketplace. We encourage you to visit the blog and subscribe for regular updates.

Please note that for the time being, all articles will be published in French only.

 

Overtime and Hours of Work Violations in Class Action Litigation

Posted in Labour Relations
Tim Lawson

Did you know?  Employers who unwittingly violate hours of work and overtime requirements of employment standards legislation can be building up huge financial liability.

Although hours of work and overtime provisions themselves may seem straightforward, their practical application can be complicated and confusing.  This is particularly true where employee pay is not based on an hourly wage.  Several recent cases have shown that where non-compliance is widespread and affects a number of employees, an organization may find itself embroiled in class action litigation.
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Employers Must “Trust” Employees to Account for Mitigation Earnings During Notice Period

Posted in Damages, Employee Obligations, Litigation, Termination, Wrongful Dismissal
Daniel PugenPatrick Pengelly

A typical wrongful dismissal case (where cause is not an issue) generally involves two legal issues.  First, how much reasonable notice of termination (or pay in lieu) should the employee have received based on the employee’s age, length of service, position, compensation and the availability of comparable employment.  Second, did the employee mitigate his/her damages by finding alternative employment or failing to make reasonable efforts to do so during the notice period?  Notably, a judge can decrease the notice period based on the employee’s unreasonable mitigation efforts.

Often times by the time the trial rolls around, the notice period has finished.  The employee’s damages (i.e. compensation over the notice period less mitigation earnings) have “crystallized”.  The employer can test the employee’s mitigation efforts in Court.  However, what happens when a judge determines the notice period at a time when the majority of the notice period has yet to run its course?  With summary judgement procedures becoming increasingly (and properly) used by Plaintiff’s counsel in achieving a quick hearing date, this issue has increasingly come before the Courts.

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Brace yourself, more changes to Ontario’s labour and employment laws likely to come

Posted in Employment Standards, Labour Relations, Policies
Matthew Demeo

Consultations are now underway as part of the Ontario Ministry of Labour’s (“MOL”) Changing Workplaces Review.

Announced in February, the MOL has indicated that the Changing Workplaces Review will focus on potential changes to Ontario’s Employment Standards Act, 2000 and the Labour Relations Act, 1995.  This review is part of the MOL’s broader mandate to implement employment and labour law reforms in their effort to strengthen protections for vulnerable workers and support businesses in today’s evolving economy.  Specifically, the Changing Workplaces Review and consultations seek to address: Continue Reading

Human Rights Tribunal Sanctions Employee for Withdrawing Human Rights Complaint at Last Second

Posted in Human Rights
Daniel Pugen

Human rights applications can be frustrating for employers.  As even frivolous cases must usually go to a hearing in order to be dismissed, employers are forced to incur substantial costs.  Employees, on the other hand, are often able to obtain free legal advice along the way.  Plus, the Human Rights Tribunal (“Tribunal”) does not award costs.  Accordingly, unlike the Courts, the system is designed so that there are few consequences for an employee advancing a claim and then, perhaps because the claim had no merit all along, withdrawing the claim.  Fortunately, a recent decision from the Tribunal found that an employee who tried to withdraw her claim at the last second could not do so without adverse consequences.

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McCarthy Tétrault launches Alberta Employer Advisor blog

Posted in Employment Standards, Human Rights, Labour Relations

McCarthy Tétrault launched its 13th blog today, Alberta Employer Advisor, to help clients manage the challenges they face in today’s workplace. The blog provides employers and HR professionals with analysis of the latest legal issues that affect employment-related practices, labour and human resources policies. In addition to providing clients with insights on the implications of new case law, as well as updates on the latest legislative and regulatory developments, the blog will be regularly updated with practical tips, specifically relevant in the Alberta marketplace. We encourage you to visit the blog and subscribe for regular updates.