[Conner Lantz]

in reply to: Answer for Layoff Using Reduced Work Week Hours of 32 hours or 40 hours? #86883

Administrator

A week’s pay is calculated by:

– Totalling the employee’s wages, excluding overtime, earned in the last eight weeks in which the employee worked normal or average hours; and
– Dividing the total by eight.

As such, you would then calculate based on 32 hours.

[Conner Lantz]

in reply to: Answer for The Employment Contract #86882

Absolutely not. But you can add a clause that limits employees to only ESA termination notice and nothing else.

EXPLANATION

There are 3 rules to keep in mind:

1. Employees’ Right to ESA Termination Notice Cannot Be Waived

Termination notice under the ESA is a fundamental right that can’t be waived.

2. Employees’ Right to Additional Notice Can Be Waived

Employees can’t get less termination notice than the ESA requires but they can get more—sometimes a lot more. That’s because employees might also be entitled to termination notice under common-law, i.e., law made by judges in court cases as opposed to statutes and regulations. Common-law notice is typically more generous than ESA notice.

Accordingly, many employers include language in employment contracts saying that employee s who are terminated without cause (and thus in line for ESA termination notice) get only the notice they’re entitled to under the ESA and no more.

3. Waiver of Common Law Notice Must Be Enforceable

Historically, courts have been very reluctant to enforce contract provisions that purport to limit an employee’s notice rights. So if you do add a waiver of common law notice, you need to ensure it will stand up to strict scrutiny:

Waiver Language Must Be Clear and Unambiguous: First of all, the waiver clause must be written clearly so that employees understand what they’re agreeing to. The slightest ambiguity in the language is enough to make the waiver unenforceable.

Waiver Provision Can’t Be Unconscionable: A court won’t enforce your waiver if it thinks it’s “unconscionable,” i.e., so grossly unfair that it shocks the conscience. Waivers can be unconscionable when an employer takes advantage of an employee’s lack of power, ignorance or other vulnerability to ensure he signs.

– Employees Must Receive Consideration: The third requirement is that you provide employees “consideration,” i.e., something of value in exchange for agreeing to waive their common law notice rights.

[Conner Lantz]

in reply to: Answer for At What Point Does Accommodating Employee on Long-Term Disability Become Undue Hardship? #86881

Great question! You don’t have to wait forever. The basic rule: You can terminate the employee if and when:

– It becomes clear that there’s no reasonable prospect of her return; or
– You can show that you’ve already waited long enough and that holding the position open any longer is an undue hardship.

EXPLANATION

The $64,000 question: How do you know when you’ve reached one of these points? Unfortunately, the law doesn’t provide a clear cut answer. The situation gets decided one case at a time on the basis of the particular facts involved. Here’s a summary of two typical cases to show you the factors judges and arbitrators look at to determine how long is long enough to hold open a position:

HOLDING POSITION OPEN IS UNDUE HARDSHIP

FACTS

Physical and mental ailments cause a Hydro-Québec (HQ) employee to miss 960 days in 7 1/2 years. HQ repeatedly tries to adjust her working conditions—light duty, gradual return-to-work, etc. Nothing works. So, when her most recent indefinite leave of absence surpasses 5 months with no return date on the horizon, HQ decides that enough is enough and terminates her employment. The Québec Court of Appeal finds HQ liable for disability discrimination. HQ appeals.

DECISION

The Supreme Court of Canada rules in HQ’s favour.

EXPLANATION

The provincial court used the wrong standard, said the Court. Undue hardship isn’t reached when accommodation becomes “impossible.” Employers have a business to run. And while employers must respect the employee’s rights, employees also must be able to uphold their end of the employment relationship and do the job they’re paid to do. If after efforts to rework the job there’s still no prospect for the employee to get back to work in the reasonably foreseeable future, the point of undue hardship is reached and the employer can cut the cord, the Court concluded.

Hydro-Québec v. Syndicat des employés de techniques prof, locale 2000, [2008] S.C.J. No. 44, July 17, 2008

HOLDING POSITION OPEN IS NOT UNDUE HARDSHIP

FACTS

In Feb. 2009, a software developer goes on leave with a disability later diagnosed as anxiety and depression. The company accommodates him by extending his leave, continuing his benefits and asking about his abilities so it can re-work his job. In Dec. 2009, the developer sends the employer a doctor’s note: date of return unknown but it’s going to be at least 3 more months. Undue hardship, the company decides, and notifies him that he’s terminated, effective March 31, 2010. I need just one more extension, the developer replies, citing new medical evidence suggesting he might be able to return after treatment. But the employer stands by its decision to terminate.

DECISION

The BC Human Rights Tribunal finds the company liable for discrimination and awards the developer $10,000 for injury to dignity.

EXPLANATION

The point of undue hardship hadn’t been reached, said the Tribunal: Unlike in the HQ case, there was medical evidence the developer could return; failure to consider that evidence was a violation of the company’s duty to accommodate. In addition:

The developer got only 3 months notification that his job was in jeopardy;
The company didn’t post a replacement position until 3 months after termination—and waited another 6 months before hiring somebody; and
Extending the developer’s leave would have cost the company only $300 per month.
Morris v. ACL Services, [2012] BCHRT 6, Jan. 13, 2012

Establishing Pre-Existing Time Limits for Leave

Although it may be too late for this particular case, one potential solution to consider going forward is setting pre-existing time limits. Just be aware that there are liability risks of pre-set limits since “accommodations” must be based on individual circumstances. Check out this story to find out more about those risks and what you can do to avoid them.

*****
I wish I could provide something more concrete but I hope this helps.

[Conner Lantz]

in reply to: Answer for Is There any Standards or Legislation for On Call Pay? #86880

Justin Rybrinski

“employees who are on-call at home, but who are subject to significant restrictions, such as a short response time, which effectively curtail the employees’ mobility or freedom.”

Herein lies the issue. The sales staff member feels restricted in their freedom and mobility on the weekend due to the fact that they are on-call for the weekend. Even though they are at home they feel restricted because they are not free to travel far from home in case an emergency arises while they are on call and they would be required to come in to the office. Should the employee be paid for being on call or only when called in for an emergency? Is there a requirement to pay or is it at the discretion of the employer?

[Conner Lantz]

in reply to: Answer for Is There any Standards or Legislation for On Call Pay? #86879

Administrator

From Pay For No Work – Part I – On-Call by Donovan Plomp of McCarthy Tétrault LLP

In addition to vacations and statutory holidays, there are two key times when an employee who is not performing any productive work may be entitled to be paid under the Employment Standards Act:

– While on-call other than at home; and during travel time.

On-call employees are “at work” and are entitled to be paid regular wages as well as overtime for those hours of work. The Act provides that an employee is “at work” while on call at a location designated by the employer, unless that location is the “employee’s residence”, a term which is narrowly construed and probably does not include most temporary accommodation provided by the employer at or near the worksite.

Employees who are not in their own homes and who are required by the employer to be available to work on an as-needed basis are on-call and “at work” for the purposes of the Act, even if they are sleeping or watching television. There are a number of exemptions set out in the Regulation relating to live-in home support workers, night attendants, residential care workers and certain industry-specific workers such as fish farm workers.

Watch out for:

– Employees who are required to remain at or near the workplace after work and who may be required to work on an as-needed basis; and
– Employees who are on-call at home, but who are subject to significant restrictions, such as a short response time, which effectively curtail the employees’ mobility or freedom.

Possible solutions:

– Do not require employees who remain at the workplace after their hours of work to be available to work on an as-needed or emergency basis; and
– When preparing guidelines for employees on-call, carefully consider the reasonableness of response times or other restrictions.

[Conner Lantz]

in reply to: Answer for Psst, Hey Candidate Let Me Have Your Facebook Password! #86878

My short answer is ‘No’; I think that the negatives of asking for a Facebook password outweigh any positives in 99% of the cases. I would say the same for asking a candidate to log in and leave the room while you search his Facebook account.

If you have suspicions perhaps you need to expand your vetting process and look a little harder. Generally, between your normal screening process, which should include reference and background checking, and Internet vetting (with caveats) and, in this case a drivers record check, you will obtain the information you need to make an informed decision. Can you obtain more information by accessing candidate’s Facebook accounts? Possibly, but what you find may cause you more headaches then it could possibly solve.

Violating Privacy and The Human Rights Code

I watched with interest the flashpoint debate last summer when the topic of requesting job candidate’s Facebook passwords emerged into the spotlight. In response to the issue the majority of the public conversation revolved around the idea that protection offered by Canadian privacy legislation, Employment Standards Acts and Human Rights Codes would inhibit employers from violating a job candidate’s Facebook privacy. But, is it that cut and dried?

The way forward is not always that clear even to those involved in the issue. In a March 2012 interview with the Globe and Mail, Devid Goodis, the Director of Legal Services, Information and Privacy Commissioner of Ontario said ‘asking for a Facebook password could find the employer in violation of the Personal Information Protection and Electronic Documents Act (PIPEDA) and the Ontario Human Rights Code.’ However, a correction to this article indicated that PIPEDA had limited application in the context of employment context and furthermore only applies to federally regulated employers.

With reference to the Ontario Human Rights Commission, if you read their Facebook page they state that ‘the OHRC believes employers should not ask job applicants for access to information stored on social media or other online sites and that doing so could leave an employer open to a claim of discrimination under the Code.” Note that they did not say an employer could not ask, only that it left the employer open to a claim of discrimination. While this opinion is in reference to Ontario similar thoughts are being voiced across Canada. In the spring of 2012 Nova Scotia was the first to introduce a private members bill specifically prohibiting employers from requiring access to a social network as a requirement of employment. However, thus far we could find no legislation that has been enacted.

How The Cons Outweigh the Pros

The rights of an employer to snoop into a job candidate’s Facebook page are very limited but probably not non-existent. However, are privacy legislation and employment standards the only point? If, while snooping around a candidate’s Facebook page you uncover information indicating family status, age, religion, even criminal history or more you could not use it, even if the candidate gave you permission to check. If you later turn down the candidate and even if you do not see or use this information, the candidate could claim you did.

In addition to the possible legal and financial risks you may face the more immediate risk is the damage to the relationship with your candidate. The majority of Facebook users would not happily hand over access to their Facebook account and would only do so under duress. This may not be the best way to begin a relationship.

Your Options: How To Conduct a Social Network Check

It may be fair to say that many job candidates expect an employer is conducting a cursory Internet and social networking check on their activities; goggling their name, visiting LinkedIn and even looking at their Facebook page. Currently, although dicey these activities my stand up if you are careful about what you do and how you use it.

If you want to conduct a social network search on a potential employee consider bringing in an objective 3rd party (either another employee or an outside agent) to conduct a search to look for only what is relevant and legal. Although this person may see other information you can direct her not to report anything that reveals protected personal information.

What could they report? What is relevant for the job, for example consistency of work history, education and other background details; social media skills, attitude, communication skills, public behaviour and other important qualities that do not reveal protected information. If they found comments on Twitter where the candidate talked about smoking crack in a drunken stupor they could probably report on that because that might be very relevant to a job as a driver (though perhaps not a mayor).

Before you proceed clearly understand what you are looking for and why and ask yourself if you can obtain the information you need through other means.

Sources

Asking for Facebook password a violation of human rights:
Commission the Ontario Human Rights Commission Facebook page: https://www.facebook.com/the.ohrc/posts/320570581329371

[Conner Lantz]

in reply to: Answer for Senior Employees & Retirement #86877

That’s a complicated question. Let me just say 2 things:

1. Mandatory retirement is actually still legal in some circumstances; and
2. As a practical matter, many employers have learned to appreciate the value of senior employees and are trying to prevent them from retiring.

EXPLANATION:

Ending mandatory retirement means employers can no longer force employees to retire at 65 or any other pre-designated age. But there are 2 important exceptions:

Mandatory Retirement Policy Is BFOR: Mandatory retirement can still be justified if the employer can show that not letting employees do a particular job when they reach a particular age is a bona fide occupational requirement (BFOR). But the employer must prove the mandatory retirement is a BFOR. Technically, according to the Canadian Supreme Court, the employer has to show that:

– The policy was adopted for a purpose rationally connected to performance of the job;
– It adopted the policy in an honest and good faith belief it was necessary to fulfill that legitimate work-related purpose; and
– The policy is in fact reasonably necessary to fulfill the legitimate work-related purpose and there’s no less restrictive way to accomplish it.

Proving all this is extremely hard—but not impossible. Example: Mandatory retirement for firefighters at age 60 is a BFOR because of the physiological and cardiac risks to the 60-year-old body [Espey v. London (City), 2008 HRTO 41 (CanLII), Dec. 18, 2008].

Mandatory Retirement Policy Is BFPP: Mandatory retirement is also acceptable if it’s adopted by a “bona fide pension plan” (BFPP). The BFPP exception recognizes that to provide for retirement income for a group of employees, the plan must be able to set age-based rules governing vital matters like plan contributions and benefits accrual and payment. As explained by a Saskatchewan court, the BFPP rule “recognizes that, in some circumstances, discrimination on account of age will be necessary in order to create a viable and cost-effective plan because the cost of benefits to older workers are higher than for other workers” [Saskatchewan (Human Rights Commission v. Saskatoon].

From Mandatory to Phased Retirement

For many employers, using the BFOR or BFPP to justify mandatory retirement has become a moot point. That’s because they don’t want their senior employees to retire.

Tax changes have made it easier for companies to keep retirement age employees in the fold by allowing retirement-eligible employees to accrue and receive pension benefits at the same time (previously, the employee could do either one or the other). Arrangements where employees getting retirement benefits keep accruing pensionable service are called “phased retirement.”
Phased retirement requires modifying the terms of the pension plan; and employers don’t have to offer it if they don’t want to go to the trouble of changing their pension plans. But the fact that so many companies have chosen to go this route is testimony to how much attitudes toward senior workers have changed.

As the population grows older, skilled labour grows scarcer and recruitment and training grow more expensive, the tide will continue to turn decisively away from mandatory and in favour of phased retirement.

[Conner Lantz]

in reply to: Answer for Paying Trainees Less Than Minimum Wage #86876

Probably not but it’s a bit complicated. There are 2 parts to this question that must be answered separately:

– First, is the training or orientation “work” for the applicable employment standards?
– Second, if it is “work,” is it subject to the minimum wage in the particular jurisdiction?

EXPLANATION:

Most jurisdictions define work performed by an employee as any services performed for the employer. By this definition, any period of training or orientation would count as “work” since the “service” being performed is bringing an employee up to whatever standards are required to become fully qualified and productive, a clear benefit to the employer. Result: Such training or orientation would count as “work” for employment standards purposes.

Of course, to the extent it does count as work, the service would be subject to the minimum wage. However, in some jurisdictions there are lower minimum wages for employees who are newly hired. For example, employees subject to Nova Scotia employment standards who have less than 3 months experience in the type of work they do may be paid at a lower rate.

Get more help with minimum wage, overtime and other employment standards issues here: https://hrinsider.ca/category/search-by-index/salary-wages-benefits-search-by-index

[Conner Lantz]

in reply to: Answer for What Can an Employer do Legally if an Employee is Sick One or Two Days a Few Times a Month on an Ongoing Basis? #86875

Here is a great response from Katerina Gould, executive coach and co-founder of Women Returners.

You may have not spoken to your team member before because you have been avoiding confrontation. By holding a difficult, but sensitive, conversation with your employee you will be reasserting your authority with her and the rest of your team.

First of all you need to try to find out what might be behind your team member’s behaviour. Does she have a real health issue that she needs support with? Does she have some other difficulty that she hasn’t disclosed but needs time off for? Your approach needs to express your concern: you’ve noticed that she’s been taking a lot of sick leave. Is she OK?

Is there anything else going on that she needs your help to manage? Would she like to be assessed by your company doctor? By approaching the subject in this way, you are trying to gain her trust and let her know that you want to help her to solve her problem.

Whether or not your team member opens up, you can then explain to her, in factual terms, the impact her time off is having on her colleagues and on you. You must refrain from being critical or expressing resentment. Just stick to the facts – “when you are away, the rest of the team have to pick up your work which puts added pressure on them”, “when you are away, it makes it hard for me to plan the team’s work”.

Handled sensitively, you are likely to get one of three responses from your team member. She may tell you about a deeply personal issue that she has been struggling with and has been afraid to mention previously, allowing you to work out how to help her to manage this issue and keep working. Alternatively, she may apologise for the problems her behaviour has been causing, of which she was unaware, and will commit to playing her full part in the team.

Or, she will know that you will no longer tolerate her behaviour and will decide to either toe the line or leave.

[Conner Lantz]

in reply to: Answer for Progressive Discipline for Discrimination #86874

This is a difficult situation and creates a disparate impact where you could be perceived as being complicit with harassment or racial epithets because they originate with a minority.

We recommend ammending both your progressive discipline and harassment policies to contain some zero-tolerance language.

As well, you need to understand that the burden of proof is to prove the harassment took place and not accept heresay or one side as binding testimony.

Is this something that can be resolved through a mediated discussion with both parties in the room where you guide the discussion about how the comments are being perceived although they may not be intended as such. Remember to avoid words like race and harassment, if the participants bring it up, allow the conversation to progress, but mediate the emotion.

You will more likely get a better resolution from that than from trying to pursue progressive discipline when you do not feel you haave met the burden of proof.

[Conner Lantz]

in reply to: Answer for Asking Employees for a Doctor’s Note #86873

EXPLANATION:

General Rule: Under privacy laws, you can’t collect medical information about an individual without the person’s consent. Exception: Employers are allowed to collect medical information about their employees when it’s reasonably necessary to carry out essential employment functions, including via asking for a doctor’s note. Examples:

You CAN Ask for a Doctor’s Note:

– To confirm that an employee who calls in sick really is sick and thus entitled to sick pay;
– To confirm that an employee in an attendance management program who calls in sick really is sick;
– To confirm that employees required to undergo rehab, anger management and other employment-related treatment plans are following the terms of those programs;
– To verify that an employee who claims disability under the organization’s disability plan really has a disabling injury;
– To confirm that an employee who requests an unpaid medical leave of absence really has an illness for which leave is allowed or required;
– To confirm that an employee requesting accommodation for a medical condition really has such a condition; and/or
– To determine an ill or injured employee’s capabilities during the return-to-work process.

Conversely, asking employees for a doctor’s note isn’t allowed when there’s no employment-related justification to have that information. Examples:

You CAN’T Ask for a Doctor’s Note:

– As a matter of course or principle any time an employee calls in sick;
– To harass the employee; and
– To confirm a suspicion that an employee is hiding an illness when she claims she’s fine.

Information You Can & Can’t Ask for

Even when it’s justifiable to ask for a doctor’s note, you must ask only for minimum amount of information needed to meet your employment-related purpose.
In cases of short absences due to illness, you don’t have a right to insist on any details about the employee’s condition. A one sentence note from the doctor stating that “Employee X is sick” is generally enough.

Even in cases where an employee’s medical condition is relevant to the employment-related purpose, e.g., during the return-to-work or accommodation process, there are limits to the medical information you can request.

The basic rule: You can ask the doctor for the employee’s prognosis but not diagnosis, i.e., when she can return but not what condition she actually has.

 

[Conner Lantz]

in reply to: Answer for Hiring an employee with a student Visa #86872

I have a little knowledge on immigration law. I do know that a Canadian study permit must be formally renewed and that there are formal procedures for securing renewal.
This link provides government instructions on the procedure – http://www.cic.gc.ca/english/study/study-extend.asp
I also don’t believe that the study permit has any bearing on PR status. But again, this isn’t an employment/HR law issue.
I hope this helps!

[Conner Lantz]

in reply to: Answer for Sick Leave and Sick Pay #86871

As far as I can see, you’re right. There’s nothing in the Alberta ESC requiring paid sick leave for any kind of employee, salaried or wage earning. Just to be sure, I checked Bill 17, which takes effect on Jan. 1, 2017 to confirm that it doesn’t say anything about paid sick leave. It doesn’t.
So it looks like you’re good to go with one caveat: The ESC isn’t the only thing in play–the arrangement won’t fly if you’re contractually obligated to provide sick leave under any collective agreements or individual employment contracts that apply.
Hope this helps.

[Conner Lantz]

in reply to: Answer for Interviews #86870

Performance review is not only permitted but essential to maximize productivity and get the best from your employee. To be sure, there’s always the remote risk that a disappointed applicant will claim your review was a pretext for discrimination. But that shouldn’t be a problem as long as your performance criteria are clear, non-discriminatory and consistently applied to all similar employees/applicants regardless of race, sex, etc.
Sounds like you got the consistency part covered since you’re asking all applicants the same Qs. Just watch out for Qs that may come across as discriminatory even though they’re neutral on their face. Check out the recent story on Discriminatory Job Advertisements for some red flags to watch out for.
Hope this helps,
Glenn Demby 203 354-4532

[Conner Lantz]

in reply to: Answer for Federally Regulated – Bill 148? #86869

OMG, that’s an incredible question that we should use for an article!
If you’re federally-regulated, it means you just gotta follow the Canada Labour Code and not worry about provincial laws like Bill 148.
Right?
WRONG!
Unfortunately, it’s more complicated than that because of Canada’s quirky federalism rules and the fact that federally-regulated workers do their job inside a province and provincially-regulated workers may also do their job at a federally-regulated site, e.g., construction workers doing a project at Pearson Airport in Toronto.
The basic rule is that the applicable law is based on the identity of the employer rather than where the work is actually carried out. But exceptions apply. Note also that BOTH laws may apply at multi-employer sites where workers of both federally and provincially regulated workers work.
Those are the general principles. It’s hard to advise you without knowing more about your operations. And even if I did know how your business works, I couldn’t offer you legal counsel. But while you do need to ask a lawyer, I think there are 2 bits I can offer as a general opinion:
*Bill 148 probably won’t cover your own employees even if they work in a provincially regulated workplace; and
*Bill 148 almost certainly will cover workers of any Ontario-regulated companies you use at your workplace, even if that site is federally regulated.
I know it’s a bit convoluted but federalism is a complex and wonderful thing!
Glenn Demby, 203 354-4532

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