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Category Archives: Benefits, Compensation, Pensions

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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

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
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DB Pension Plans and Ontario’s Consultation on Solvency Funding Rules – Now is the Opportunity for Employers to Speak Up

Posted in Benefits, Compensation, Pensions

Employers that sponsor defined benefit (“DB”) pension plans know that contribution requirements can be volatile and onerous, especially given current low interest rates.

The Ontario Government has taken note. In its recent consultation paper, Review of Ontario’s Solvency Funding Framework for Defined Benefit Pension Plans (“Consultation Paper”), the Government proposes several approaches to change the current DB funding rules, including the complete elimination of solvency funding (as Québec did earlier this year).

Comments on the Consultation Paper are due by September 30, 2016. The Ontario Government then intends to hold a second public consultation on any proposed funding reforms … Continue Reading

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

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

Posted in Policies, Wage and Hours

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 … Continue Reading

Tightening the Belt on Broader Public Sector Compensation

Posted in Benefits, Compensation, Pensions

On March 16, 2015, the Broader Public Sector Executive Compensation Act (the “Act”) comes into force. The purpose of the Act is to regulate and govern the total compensation of individuals who hold certain executive positions within the broader public sector (“BPS”), through the implementation of “compensation frameworks”. The “compensation frameworks” would apply to “designated employers” and “designated executives”.

Designated Employers

The following are characterized as “designated employers” under the Act:

  1. Hospitals;
  2. Every board within the meaning of the Education Act;
  3. Universities, colleges and other post-secondary institutions;
  4. Hydro One Inc. and its subsidiaries;
  5. Independent Electricity System Operator;
  6. Ontario Power Authority;
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Ministry of Labour Goes After Unpaid Internships

Posted in Employment Standards, Interns, Wage and Hours

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 publishedContinue Reading

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

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

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 … Continue Reading

Time Limits for Wage Complaints Under the Canada Labour Code to Come Into Force April 1

Posted in Employment Standards, Wage and Hours

The long-awaited proclamation of several important amendments to the Canada Labour Code (the Code), have finally been announced. On March 12, 2014, the Federal Government announced that April 1, 2014 will be the day that certain sections of the Jobs and Growth Act, 2012, will come into force. The Jobs and Growth Act, 2012, also known informally as Bill C-45, received Royal Assent in December 2012 as a means to implement parts of the 2012 Federal Budget.

Of particular note for employers in the federal jurisdiction is that the Bill C-45 amendments will establish precise time … Continue Reading

No Perfect Attendance Bonus to Employee on Workers’ Compensation Leave of Absence

Posted in Benefits, Compensation, Pensions, Discrimination, Human Rights, Policies

Managing absenteeism and dealing with the associated costs are among the most difficult things employers face. Accordingly, many employers try to incentivize employees to improve their attendance by providing bonuses based on meeting attendance thresholds. Seems simple enough. However, what if an employee is off work on a disability leave? That employee is off work through no fault of his/her own yet otherwise had perfect attendance. Should such an employee be able to claim the attendance bonus?

A recent arbitration decision says “no”.… Continue Reading

Did Bringing a Class Action Over Changes in Post-Retirement Benefits Just Get Easier?

Posted in Benefits, Compensation, Pensions

On January 16, 2014, the Supreme Court of Canada released its long-anticipated decision in Vivendi Canada Inc. v. Dell’Aniello. The decision affirmed the Quebec Court of Appeal’s 2012 judgment certifying a class proceeding by retirees of Vivendi Canada (formerly Seagram) and their beneficiaries over the company’s unilateral reductions in their post-retirement health and welfare benefit coverage.

Prior to Vivendi, the question of whether or not a group of retirees could successfully bring a class proceeding against their former employer for changes in post-retirement benefits was, to quote Donald Rumsfeld, a “known unknown”. Different courts across the country had … Continue Reading

Minimum Wage Increase Coming to Ontario

Posted in Benefits, Compensation, Pensions, Wage and Hours

Effective June 1, 2014, the general minimum wage in Ontario will increase from $10.25 to $11.00 per hour. The increase will result in Ontario and Nunavut having the highest minimum wage in Canada. The increase essentially accounts for inflation since the last minimum wage raise to $10.25 in 2010. The student minimum wage will also increase from $9.60 to $10.30 per hour.

The increase follows a report from a panel that was commissioned by the Ontario government to study the minimum wage. A key recommendation of the report was that the minimum wage be tied to the rate of … Continue Reading

New Human Rights Decision Provides Guidance on Frustration of Contract

When is an employment agreement frustrated?

Posted in Benefits, Compensation, Pensions, Human Rights, Occupational Health and Safety, Termination

We are often asked by our clients how long one of their employees has to be off work before it can justifiably take the position that an employment relationship has been “frustrated”.  Employers often wonder this because when an employment relationship is frustrated, the employee is not entitled to common law notice or pay in lieu of such notice [1]. So, how long does it take? 1 year? 18 months? 2 years? 5 years?

A recent Human Rights Tribunal decision, Gahagan v. James Campbell Inc., 2014 HRTO 14, appears to provide some guidance on this issue.… Continue Reading

Ontario Government Proposes Major Changes to Workplace Legislation

Posted in Employment Standards, Labour Relations, Occupational Health and Safety, Unions, Wage and Hours, Workers Compensation

On December 4, 2013, the Ontario government introduced Bill 146, the Stronger Workplaces for a Stronger Economy Act, 2013. Bill 146 implements some of the recommendations made by the Law Reform Commission of Ontario that submitted a report on vulnerable workers.

Although the bill has just been introduced, if it passes through the legislature and then receives royal assent, it will have a significant impact on workplace regulation in Ontario. Some of the key proposed changes (which are summarized in detail here) include the following:… Continue Reading

The Ministry of Labour is Coming for Retailers: 5 Common ESA Violations

Posted in Benefits, Compensation, Pensions, Employment Standards, Leaves of Absence, Wage and Hours

The Ministry of Labour (MOL) conducts inspections to ensure compliance with the Employment Standards Act, 2000 (ESA). The MOL targets employers in (as they put it) “sectors where there is a history of employment standards violations and where vulnerable workers are employed.” Thankfully, at least the MOL announces the targeted sector so that employers can prepare. This time, the target is the retail industry.

The “blitz” (as the MOL terms it) will take place from October – December 2013 and will deal with such issues as record keeping, deductions from pay, hours of work, eating periods, overtime pay, minimum wage, … Continue Reading

Overtime Exempt or Non-Exempt? Issue May Be Certified as a Class Action

Posted in Employment Standards, Litigation, Wage and Hours

In a very important decision, the Ontario Superior Court of Justice in Rosen v. BMO Nesbitt Burns Inc. has certified a class action launched by investment advisers (IAs) at BMO Nesbitt Burns (BMO) for overtime pay. While this is not the first overtime class action to be certified in Ontario, it is noteworthy given that the issue involves the alleged misclassification of the IAs as managers or as otherwise exempt from overtime under the Employment Standards Act, 2000 (ESA).… Continue Reading

Five Employment Issues Facing Retailers

Posted in Accommodation, Discrimination, Employment Standards, Human Rights, Leaves of Absence, Wage and Hours

This post was republished in the August 2013 issue of the Canadian Labour Relations and Employment Topics newsletter, published by CCH Canadian Limited.

I am fortunate in my practice to work with clients in different industries, ranging from healthcare and social services to traditional manufacturing. Although employment laws generally apply to all industries in much the same way, there are usually certain issues that some industries face more than others. This is true of many clients I assist in the retail industry.… Continue Reading

Minority Report: Ontario’s 2013 Budget Contains a Slew of Pension and Benefit Announcements

Posted in Benefits, Compensation, Pensions, Wage and Hours

On May 2, Minister of Finance Charles Sousa tabled the Ontario Liberal government’s 2013 Budget. The Budget contains a number of announcements relating to pensions and benefits that will be of interest to Ontario employers, pension plan administrators and their advisors.

Chief among these, the Budget commits the government:… Continue Reading

Deducting Overpayments from Wages

Posted in Employment Standards, Wage and Hours

The Ministry of Labour has recently come out with an animated (and fairly entertaining) video on employee deductions titled Illegal Deductions from Wages.

The MOL stresses that deductions from employee wages are not allowed except in “specific circumstances”.  While this is helpful in reinforcing the general rule that deductions from employee pay are generally restricted under the Employment Standards Act, 2000 (ESA), it is important to remember what these “specific circumstances” entail.… Continue Reading

47 Recommendations on Employment Standards and Health and Safety

Posted in Accommodation, Employment Standards, Human Rights, Occupational Health and Safety, Wage and Hours

On April 3, 2013, the Law Reform Commission of Ontario released a report (all 176 pages), Vulnerable Workers and Precarious Work: Final Report – December 2012.  The report is, in essence, a policy-heavy document reflecting the Commission’s views on how the Ontario government can better “respond to the challenges faced by vulnerable workers.” The Commission came up with a list of 47 “recommendations” dealing with legislative and policy reform of the Employment Standards Act, 2000 (ESA) and the Occupational Health and Safety Act (OHSA).

What is striking about the report (and what employers should be concerned about) is that … Continue Reading

Ontario Human Rights Tribunal Awards Reinstatement and Substantial Back Pay for Failure to Accommodate

Posted in Benefits, Compensation, Pensions, Human Rights, Termination, Wage and Hours, Wrongful Dismissal

A recent decision of the Ontario Human Rights Tribunal (HRTO) in Fair v. Hamilton-Wentworth District School Board, 2013 HRTO 440 illustrates the potentially serious consequences for employers who fail to accommodate employees.

In its initial and long-delayed decision on liability, the HRTO found the Hamilton Wentworth District School Board liable for discriminating against former employee Sharon Fair by failing to accommodate her post-traumatic stress disorder (PTSD) and terminating her employment.… Continue Reading

Temporary Foreign Workers in Canada

Posted in Immigration, Wage and Hours

You are the Human Resources Director for a Canadian-based company that has affiliates and subsidiaries in numerous countries. One of your responsibilities is to manage the temporary foreign workers employed by your company in Canada. All individuals are subject to Canadian immigration laws that apply to temporary foreign workers, unless they are either a Canadian citizen or a Canadian permanent resident. Under these laws, every person who participates in employment in Canada requires a work permit. The definition of employment is very broad, and most business travellers to Canada fall into this category.… Continue Reading