[vickyp]

in reply to: Quebec Law 25 – Employee Monitoring Software #90227

Yes you would need informed consent and yes you can make that consent a requirement for working remotely. You may fall into a difficult position if you make it a requirement for employment in general, and you may need some accommodation say for an employee that objects but needs a couple of months to make arrangements so they can come back into the office. What you must take special care and attention to however is that the data collected is secure, visible to only a those admins authorized, purged with some regularity, etc. You also need a policy for deleting the data upon termination.

[vickyp]

in reply to: Ontario worker terminated with cause, what are the pitfalls for the employer? #90183

Not knowing the action that has caused this final decision to be made, we can only caution you that the MOL may take the space between incidents into account. If the first incident took place 4 years ago and there was a gap of 3.8 years between incident 2 and 3, this might not be viewed as sequential. Ultimately, if the event is egregious enough, you do not need to follow a 3 warnings progressive discipline, there is no legal requirement, but tenure and spacing may be sticking points that you need to contemplate.

[vickyp]

in reply to: Employer options for working notice in Ontario. #89988

Yes, working notice is an option. We would caution you to also be upfront and clear with what the expectations are for that working term, as in what projects need to be completed and hand offs made. Your ability to discipline or enforce a diligent work ethic are seriously hampered when an employee is on notice – you can’t expect them to be giving 100% when they know they are going to be out of work in a very finite time.

[vickyp]

in reply to: Vacation – Employee returning to work following workplace accident #89986

I would think the employee doesn’t want to take the 20 days at a reduced payout, but would still like to have some vacation days. According to the law, you do have wiggle room here, so long as it is mutually agreed upon. Because this would be a limited amendment to your policy, we would recommend drafting a memo and both signing off on it, it should state the day adjustment and the payout/day, as well as the term for this change (when does it revert back to normal).

Another option would be to allow the employee to carry a negative balance in their vacation pay, or allow them to contribute a small amount to that fund in each pay period so as to build it up. Some other organizations have just opted to do away with the whole allotment worries and move to a PTO model that is more common in the US.

[vickyp]

in reply to: Electronic Employment Files #89983

All provinces allow for files to be electronic only; however, you are still required to have them available for printing and available for up to 7 years after employment ends; which means you need to have a data backup and privacy policy in place to protect that data at all times.

[vickyp]

in reply to: Terminating a non-attending and incommunicado employee – Job Abandonment #89981

The ESA laws DON’T specify a time after which an absence becomes an abandonment. In fact, they don’t discuss abandonment at all, not in BC nor in any other jurisdiction I’m aware of.
Abandonment is actually a so called “common law” rule that comes not from statute but court rulings in which one case serves as precedent for future cases. Although each case is different, it is usually measured in terms of weeks or months.
Also keep in mind that abandonment is based not just on length of absence but other factors including whether the employer takes “reasonable steps” to reach the employee and find out if he/she intends to return. If you can’t reach the employee, you need to keep trying on the general understanding that the more time that passes and the more attempts you make, the stronger your case for abandonment.
Last but not least, it’s also CRUCIAL that you maintain records documenting your attempts to contact the employee.

[vickyp]

in reply to: Minimum Wage Ontario #89974

The minimum wage will increase to $16.55 per hour, and the student minimum wage will increase to $15.60 per hour, on October 1, 2023

[vickyp]

in reply to: Contract to freelance #89970

First thing to do would be to draft a freelance contract and be careful that you exclude any compensation/benefits that may make it so courts see this person as an adjunct employee. Things to watch for are exclusivity, offering benefits or the ability to buy into benefits, providing equipment, not having a term to the contract with renewable dates.

Second, you need to terminate the current employment contract and have it signed off by both parties – pay out vacation pay, etc. You do not want to pay severance, so it is critical that the employee signs off and doesn’t feel like the freelance contract is being forced on them or is contingent to them signing off. We would recommend that you are clear and say we cannot continue your employment without a valid work visa, we’d like to continue working with you, we can offer you this contract as a freelance contractor moving past the date of your visa expiry.
You may also want to investigate you tax obligations to this point. An employee living and working remote in France is required to pay French employment taxes, as is the company employing them. You may have been flying under the radar, or you may already be meeting your French obligations, I don’t know, but the payroll contributions for France are considerably higher than that of Canada, and more and more EU countries (with the exception of Portugal) are going after employers with remote employees working as digital nomads in the post COVID landscape.

[vickyp]

in reply to: Can we deduct the cost of damage done to company property, from an employee’s annual bonus? #89961

This is a difficult question to answer.
In short, yes you can deduct the costs; however, you:

• need to be definitive that the employee was negligent and that this was the ONLY cause of the damage
• the employee has to agree to that and in no way be viewed as coerced to agree to it (as in you are fired unless you pay for the damage)
• the employee needs to be aware before the incident that this was a risk – did you have a policy saying you are responsible for damages to equipment if it is deemed that your negligence caused the damage

It is very difficult in all jurisdictions for employers to claw back pay, for obvious reasons, so exercise caution and weigh the cost/benefits would be our words of advice.

[vickyp]

in reply to: Work Injury Case #89960

The way you are describing the situation it definitely reads like something from a Better Call Saul episode. Technically the employee is still in a probationary period so you are free to do what you want really, and provided the supervisor didn’t actually assault the employee, you are probably within reason to terminate effective immediately, but make sure you have everything documented and conduct your investigation properly because I would hazard to say that this employee will definitely file a claim against you – provided everything is as you have said, I doubt they would win, but it will take up your time and energy.

[vickyp]

in reply to: Modified Work due to non-work related Injury #89955

Depends on a lot of things:
1. Did he take leave of absence;
2. Has he filed for workers comp or disability benefits?
If he’s at work and wants to work right now, you need to assess his current capabilities – the same if he isn’t working and plans to return to work.

You may find more of what you are looking for via our other product https://ohsinsider.com/duty-to-accommodate-special-report/.

[vickyp]

in reply to: Domestic Abuse #89830

“The law doesn’t hold you responsible for protecting your employees from domestic violence; it holds you responsible for protecting them from domestic violence while they’re in the workplace.
THE RULE
If an employer is aware or should be aware that a worker is at risk of domestic violence in the workplace, it must take every reasonable precaution to protect the worker and others in danger while on work premises.”
Domestic Violence: The 8 Things to Include in Your Workplace Domestic Violence Policy
Domestic Violence Leave Policy (Alberta)

[vickyp]

in reply to: Test Topic #83669

Test for Ask Expert existing question

[vickyp]

in reply to: Answer for Employer legally obligated to pay worker in Ontario? #89770

In Ontario, employment standards are governed by the Employment Standards Act, 2000 (ESA). According to the ESA, employees are entitled to be paid for all hours worked, including any time spent waiting for work-related activities.
In the scenario you’ve described, the driver started his shift, waited for border clearance (even though the system was down), returned to park the truck, and then went home, resulting in a total of 5 hours. While he didn’t complete the intended job due to factors beyond his control, he was still engaged in work-related activities during that time.
Based on the information provided, it could be argued that the driver is entitled to be paid for the 5 hours he spent on these activities. His employment contract stating that he’s paid on a commission structure for each job completed doesn’t necessarily exempt the employer from paying for hours worked that are related to his job responsibilities.

[vickyp]

in reply to: Answer for In Ontario 30 min lunch rule #89776

Enforcing the 30-minute uninterrupted lunch break effectively requires clear communication, consistent implementation, and appropriate disciplinary measures. Here are some steps you can take to ensure compliance with the policy:

1. Clear Communication: Make sure your lunch break policy is communicated clearly to all employees. Include it in the employee handbook, distribute memos, and discuss it during employee orientations or meetings.
2. Reminders: Send regular reminders to employees about their lunch breaks. Use email notifications, workplace messaging apps, or even physical reminders to emphasize the importance of taking breaks.
3. Scheduling: Whenever possible, schedule work shifts with the lunch break in mind. This can help minimize the need for employees to skip or delay breaks due to work demands.
4. Supervision and Monitoring:Supervisors should be vigilant in monitoring lunch breaks. Encourage them to promote a culture where breaks are respected and disruptions are minimized.
5. Designated Break Areas: Provide comfortable and designated areas for employees to take their lunch breaks. This can encourage employees to take their breaks and make it easier for them to adhere to the policy.
6. Lead by Example: Managers and supervisors should lead by example and take their own lunch breaks. This helps set a positive tone for the rest of the team.
7. Flexible Scheduling: Offer flexible scheduling options to accommodate employees’ preferences while still adhering to the mandated break time. This can improve employee satisfaction and compliance.
8. Documentation: Maintain records of breaks taken. This documentation can serve as evidence of compliance and can be useful in case of disputes.
9. Employee Feedback: Regularly gather feedback from employees about the lunch break policy. This can help identify any challenges or concerns and allow you to make necessary adjustments.
10. Disciplinary Measures: In cases where employees consistently violate the lunch break policy, you may need to implement disciplinary actions. Here’s a potential escalation of measures:

• Verbal Warning: Start with a verbal warning to remind the employee of the policy and the importance of compliance.
• Written Warning: If the behavior persists, issue a written warning outlining the violation and the consequences of continued non-compliance.
• Progressive Discipline: If the issue continues, implement a progressive discipline approach, which could involve further written warnings, performance improvement plans, and potential suspension.
• Termination: In extreme cases of repeated and intentional non-compliance, termination might be considered. However, this should be a last resort and should only be implemented after following proper procedures and documenting the process.

Remember, the goal is to ensure that employees have the opportunity to take their entitled breaks for their well-being and in compliance with the law. Always ensure that any disciplinary actions you take are consistent, fair, and well-documented. If you have any doubts about the appropriate steps to take, consider consulting with legal counsel or HR professionals who are knowledgeable about Ontario’s employment laws.
 

Meal & Rest Breaks Policy

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