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Ontario Employer Advisor

Keeping Employers Advised on Developments in Labour and Employment Law

Important Changes to Canadian Temporary Foreign Worker Rules

Posted in Employment Standards
Naseem Malik

The last few years has seen some major changes to the rules governing the ability of Canadian employers to bring temporary foreign workers into Canada. Recently the government introduced changes to the Temporary Foreign Worker Program which oversees and administers the issuance of opinions(previously called LMO’s or Labour market Opinions) which form the legal basis for work permit eligibility for many temporary foreign workers.

The Labour Market Opinion has now been renamed the Labour Market Impact Assessment (LMIA) and is overseen by Employment and Social Development Canada. One of the more significant changes to the system  is the reclassification of high-skilled and low-skilled workers.  A position that pays more than the average wage will be considered a high-skilled position and a position that pays less than the provincial average wage will be considered low-skilled. There is also further requirement that a transition plan be filled with applications for high-skilled workers, with certain exceptions.

There is also now a cap of 10% of the workforce for low-skilled occupations, and companies who presently employ more than 10% have been given deadlines to phase out excess workers.  Additionally geographical areas of the country with an employment rate of 6% or more will be ineligible to employ workers in the service industry.

These changes have led to a short term dramatic drop of 74 percent in the number of LMIA applications filed by employers, according to government statistics and are detrimentally impacting companies who want to bring temporary foreign workers to Canada. This along with other changes to LMIA exempt categories and a greater emphasis on enforcement of business travellers at the border by Canada Border Services agency make it a very challenging time for employers. Companies should seek instructions from an experienced immigration lawyer to help facilitate the issuance of work permits for foreign nationals seeking to work in Canada.

A Reminder to Update Your Policies for Three New Job-Protected Leaves for Families

Posted in Employment Standards, Leaves of Absence
Matthew Demeo

 

We wanted to send out a reminder that as of October 29, 2014, employees in Ontario are entitled to three new job-protected leaves (in addition to any entitlement to any other leave under the Employment Standards Act). These new leaves are:

  • Family Caregiver Leave;
  • Critically Ill Child Care Leave; and
  • Crime-Related Death or Disappearance Leave.

We provided a summary of these new leaves earlier this year.

If it has not been done already, employer’s should review their existing policies, procedures and collective agreements as soon as possible to incorporate these new leaves into the workplace.  If you have any questions or require input into developing policies and procedures for these leaves, do not hesitate to contact anyone in our Labour and Employment Law Group.

Ontario Divisional Court Upholds a Worst-Case Scenario Decision from the Human Rights Tribunal

Posted in Human Rights, Termination
Matthew Demeo

Last year, we reported on the notable Human Rights Tribunal decision of Fair v. Hamilton-Wentworth District School Board where the Tribunal ordered the reinstatement, along with over $400,000 in back pay and damages, to an employee despite the employee having been away from the workplace for almost a decade.

When this decision came out, it soon became the benchmark, worst-case scenario, for employers who were found to have failed to properly accommodate an employee.  Not only was the reinstatement order rare and the monetary award uncharacteristically high, but the Hamilton-Wentworth School Board was left to sort out the impending awkwardness of re-integrating an employee back into the workplace after ten years of adversarial legal proceedings.

Considering the extraordinary remedy, an application for judicial review of the decision was almost inevitable. Continue Reading

Comply With the AODA or Pay the Piper

Posted in Accommodation, Discipline, Policies
Benjamin Aberant

The Accessibility for Ontarians with Disabilities Act, 2005 (the “AODA”) is an Ontario law whose purpose is to develop, implement and enforce accessibility standards in order to achieve accessibility for Ontarians with disabilities by 2021. Since January 1, 2012 Ontario employers with 20 or more employees were required to be compliant with the AODA’s Customer Service Standard.   Compliance includes filing an Accessibility Report.

Likewise, since January 1, 2014, Ontario private sector employers with 50 or more employees have been required to comply with requirements under the AODA’s Integrated Accessibility Standard.  This includes filing another Accessibility Report on or before December 31, 2014.  Continue Reading

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