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Ontario Employer Advisor

Keeping Employers Advised on Developments in Labour and Employment Law

New Paid and Unpaid Leaves Proposed for Ontario Employees

Posted in Accommodation, Accommodation, Leaves of Absence, Occupational Health and Safety, Sexual Violence, training
Matthew Demeo

Last month, the Government of Ontario introduced two bills which would provide for new leaves under the Employment Standards Act, 2000 as well as new training obligations under the Occupational Health and Safety Act.

Leave proposed for grieving parents

On March 8, 2016, the Government introduced Bill 175, Jonathan’s Law (Employee Leave of Absence When Child Dies), 2016. Under Bill 175, an employee who has been employed by his or her employer for at least six consecutive months will be entitled to a leave of absence without pay of up to 52 weeks if a child of the employee dies. “Child” is defined in the Bill to include children, step-children and foster children under the age of 18.

Leave for Victims of Domestic and Sexual Violence

On the same day, the Government introduced Bill 177, Domestic and Sexual Violence Workplace Leave, Accommodation and Training Act, 2016, which, if passed, will require employers to provide employees with the following:

Domestic Violence or Sexual Violence Leave:

Employers will be required to provide a leave of absence of a “reasonable duration” to employees who have experienced (or who have children who have experienced) domestic or sexual violence. This leave is available to be used by employees for specific purposes, including:

  • seeking medical attention or counselling related to the violence;
  • obtaining support services or legal assistance; or
  • relocating (temporarily or permanently) to reduce the likelihood of future violence.
  • Unlike most ESA leaves which are unpaid, Domestic Violence or Sexual Violence leave will provide employees with up to 10 days of paid leave per calendar year, which would make this the first and only paid leave under the Employment Standards Act.

Reasonable Accommodation

The second requirement under Bill 177 will be for employers to accommodate, up to the point of undue hardship, employees who have (or whose children have) experienced domestic or sexual violence. This may include changing an employee’s place of work and/or their hours of employment to accommodate the employee’s circumstances.

Information and Training:

Finally, this new Bill will require employers to ensure that every manager, supervisor and worker receives information and instruction about domestic and sexual violence in the workplace. This requirement will be enacted under the Occupational Health and Safety Act and will be in addition to the requirements of Bill 132 that we wrote about last month.

As both pieces of proposed legislation are in their early stages, we will continue to provide updates on their progress. If you have any questions regarding these proposed amendments to the ESA and OHSA, do not hesitate to contact anyone in our Labour and Employment Group.

Combatting Sexual Harassment in the Workplace: Formal Measures Required by September 2016

Employers required to have new and updated workplace harassment policies, procedures and training in place by September 8, 2016.

Posted in Investigations, Occupational Health and Safety, Policies, Sexual Harassment, Sexual Violence
Matthew Demeo

As we wrote about late last year, the Government of Ontario has moved forward with its plan to address sexual violence and harassment. Last week, Bill 132, Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2015, received Royal Assent.

While Bill 132 amends various legislation, employers should pay particular attention to the changes to the Occupational Health and Safety Act which aim to bolster employee protection from workplace harassment. These changes impose a September 8, 2016 deadline on employers that requires them to address the following:

  • Review (and if necessary, amend) their workplace harassment policy to ensure it includes workplace sexual harassment;
  • Investigate incidents and complaints of workplace harassment;
  • Inform the parties to a workplace harassment complaint of the results of the investigation and any corrective action that will occur; and
  • Involve the Joint Health and Safety Committee in developing written programs and procedures, regarding workplace harassment, which address:
    • 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;
    • training under the programs and procedures; and
    • an annual review of the programs and procedures.

While the deadline for employers to act may be six months away, the post-Labour Day deadline may require employers to act as soon as possible to account for summer vacations. If you have any questions regarding what is required prior to September 8, 2016, do not hesitate to contact anyone in our Labour and Employment Law Group.

Ministry of Labour Compliance Blitz – The Results are In

Posted in Employment Standards, Hours of Work, Investigations, Ministry of Labour, Overtime, Pay, Wage and Hours
Tim Lawson

Last year’s Ontario Ministry of Labour (“MOL”) compliance blitz reveals that employers are having difficulty maintaining basic employment standards. From May 1 to July 31, 2015, the MOL conducted a series of workplace inspections which focused on compliance with core elements of the Ontario Employment Standards Act, 2000 (the “ESA”). The inspections targeted mainly sectors that employ “vulnerable or precarious workers” where the nature of employment is seasonal, part-time or temporary. The results do not trend well:

  • Of the 304 workplace inspections conducted by the Ministry, 232 (or 76%) employers were found not compliant with the ESA.
  • Over $361,000 was recovered for employees through compliance orders issued by Employment Standards Officers. This is in addition to whatever fines/penalties were issued to the employers.
  • Most common monetary violations:
    • Public holiday pay
    • Overtime pay
    • Vacation pay
  • Most common non-monetary violations:
    • Hours of work – excess daily/weekly hours
    • Vacation pay – written agreements
    • Record-keeping

Most of the offending employers probably did not intentionally contravene the law. More likely they were simply caught unaware. They assumed that someone in their organization was keeping track of the latest legislative amendments or that their existing policies and practices met the basic standards. Unfortunately for the majority of the employers audited, they assumed wrongly.

The results of this latest blitz, coupled with new ESA self-audit requirements which we have previously written about here, highlight the importance of taking a proactive approach towards compliance with core standards. Anticipating and preparing for the eventuality that you will be inspected by the MOL or sent a self-audit to complete is a good start to mitigate your organization’s future risk and liability.

At McCarthy Tétrault, we have developed an HR Compliance & Risk Management Diagnostic tool that helps employers achieve compliance with employment regulations.  It can help 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 to help employers navigate increasingly complex employment laws.

For more information on compliance issues faced by employers today, please see Tim’s article published in the current issue of The Canadian Corporate Counsel Association Magazine or contact us if you wish to discuss our diagnostic solution in more detail.

A Brave New World? – Probably Not But Employers Sometimes Have To Deal With 26 Months’ Notice and “Dependant Contractors”

Posted in Contractors, Employee Obligations, Employment, Employment Standards, Pay, Termination
Benjamin AberantShana Wolch

The Ontario Court of Appeal has further shattered the “24 month maximum” myth.  In Keenan v. Canac Kitchens Ltd., the Court of Appeal upheld a Trial Judge’s finding that two long service workers were “dependent contractors” and therefore entitled to 26 months’ reasonable notice on termination.

We do not think that this appeal decision is particularly ground-breaking. While unusual, it is not the first time that a Court has awarded more than 24 months’ notice (we are aware of at least one case where a court awarded 30 months).  Also, dependant contractors have long been a recognized category of worker.  However, the decision does provide employers with some valuable reminders: Read more

This article was original posted on the Alberta Employer Advisor blog on February 9, 2016.

It’s in our DNA: Bill S-201 and Genetic Discrimination

Posted in Accommodation, Accommodation, Disability, Discrimination, Federally Regulated Employers, Human Rights, Privacy, US vs. Canadian Employment Law
Kate McNeill-Keller

When dealing with requests for accommodation, employee absenteeism and other medical circumstances, employers are routinely faced with the challenge of balancing employee privacy interests against the operational interests of the business when determining how much medical information and what kind of medical information employers can request.  The analysis typically centres on the issue of what is reasonable in the circumstances, with diagnostic information being considered to be a clear delineation point as to what employers may request and not request.  At the Canadian Senate in January, the question of the protection personal health information took on a new angle, centering around an individual’s right to privacy in respect of their personal genetic information.

In recent years, the concept of “genetic discrimination” has emerged in the US, primarily centering around requests by insurers for genetic information in order to conduct insurance assessments and costings, but also involving the question as to whether employers may use genetic information as a basis on which to determine whether to offer and/or continue employment.  The Canadian Coalition for Genetic Fairness (www.ccgf-cceg.ca) defines genetic discrimination as occurring “when people are treated unfairly because of actual or perceived differences in their genetic information that may cause or increase the risk to develop a disorder or disease”.  In an effort to address these concerns, on May 21, 2008, President Bush signed into law the Genetic Information Nondiscrimination Act which serves to protect Americans against discrimination based on their genetic information when it comes to health insurance and employment.

In Canada, issues of discrimination and the protection of personal health information are currently addressed through provincial and federal human rights and privacy legislation, with additional protections coming through decisions of our various courts and tribunals.  In 2013, the Canadian Senate began the process of codifying the protection of genetic information and the prohibition of genetic discrimination through the introduction of Bill S-218, which stalled following the prorogation of Parliament.  This bill was subsequently reintroduced in 2015 by Senator James Cowan as Bill S-201: An Act to prohibit and prevent genetic discrimination.   Bill S-201 was referred to the Senate’s Human Rights Committee following Second Reading on January 27, 2016, and seeks to prohibit the requirement of genetic testing and the disclosure of genetic testing results as a condition of (a) the provision of goods or services, (b) the entering into or continuance of a contract or agreement, and (c) the offering or continuance of specific terms or conditions in a contract or agreement.   Exceptions to these restrictions would only apply to physicians, pharmacists or other health care practitioners who are providing health services, or to persons conducting medical, pharmaceutical or scientific research.   The proposed penalties for contravention include monetary fines as well as imprisonment.  In addition to the general prohibitions, Bill S-201 seeks to amend the Canada Labour Code, the Canadian Human Rights Act, the Privacy Act and PIPEDA to address and prohibit genetic discrimination, making it particularly relevant for federally regulated employers.

While this may appear to be a significant development, it is important for employers to remember that discrimination in the course of employment on the basis of disability is already prohibited in all Canadian jurisdictions.   Further, it is difficult to imagine many, if any, circumstances where the disclosure of an individual’s genetic information, including their predisposition to certain genetic conditions, would be considered by a Canadian human rights tribunal, whether provincial or federal, to be a bona fide occupational requirement.  As such, there is a strong argument that the current human rights and privacy regimes already offer protection against genetic discrimination in the context of employment.

We will continue to monitor the progress of Bill S-201 and will provide updates as developments arise.  In the interim, if you have any questions, please contact our Labour & Employment team.

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.