[vickyp]

in reply to: Answer for Employee Lateness #87404

The fact that you even ask that question makes me feel comfortable that you understand the legal risks and are well situated to deal with them. The basic answer is, YES, you can ask why an employee is late. Things get tricky if the explanation is that the employee was ill or getting medical treatment. The rule is that you’re not allowed to provided to demand protected health information (PHI). In non-pandemic times, you can ask for a doctor’s note verifying THAT the employee was late due to an illness; but  you can’t ask what that illness is because that’s PHI. Nowadays, asking for doctor’s notes is highly frowned upon even if it doesn’t ask for PHI.
Great question, stay on the ball and I hope that helps. Glenn

[vickyp]

in reply to: Answer for Step 3 of BC’s Restart Plan: Can employers still enforce a mandatory mask policy? #87403

That’s a great question. The answer is YES, you can still require employees and others to wear masks in indoor common areas, vehicles and other shared spaces where social distancing can’t be maintained. Specifically, Section 5 of the new BC Order (M012), states that “Nothing in this order prevents an operator from having additional requirements in relation to face coverings.” https://www.bclaws.gov.bc.ca/civix/document/id/mo/mo/m0012_2021
Of course, you still must make the exemptions and accommodations required when the Order did mandate indoor masks, e.g., for people with physical, mental or cognitive impairments, who are under age 12, etc.
Hope that helps. Glenn

[vickyp]

in reply to: Answer for Vacation pay vs. vacation days #87402

From our payroll expert, Alan McEwan:

1. Yes, there should be an accrual on all earnings, even on the regular pay while on vacation, as at the year-end, it’s still necessary to test whether what was paid is at least what has been accrued on vacationable earnings. This particularly affects employees who get exception pay, such as commissions or overtime, that are vacationable.
2. Not sure really what is being asked. But if you wanted to credit employees with 15 vacation days at the start of each year, when they take vacation time, you reduce both the regular hours and the credited vacation hours, by the vacation time taken. You would still need to ensure that the actual dollars made met the provincial minimums.

Glenn again here: We’ll try to be faster the next time. Thanks for your patience.

[vickyp]

in reply to: Answer for company-policy-regarding-self-isolation #87401

My payroll guru, Alan McEwan, advises me that the employee should be able to get regular EI benefits in this situation. Sorry to take so long for an answer. Glenn

[vickyp]

in reply to: Answer for company-policy-regarding-self-isolation #87400

Hmm. I think I need help from our payroll expert on this one. Will reply as soon as I hear back from him.

[vickyp]

in reply to: Answer for Termination vs Permanent layoff #87399

From our payroll expert, Alan McEwan:
***
No. Once a person has been terminated, and paid whatever monies might be owing as wages in lieu of notice, or dismissal without just cause, there’s nothing stopping the employer from replacing the terminated employees, at any time.
However, if the employer “invents” restructuring as the reason for termination, when the plan all along is merely to replace incumbent employees with others, then I would suggest the employer engage suitably paid lawyers, as there well could be consequences for this type of behaviour.

[vickyp]

in reply to: Answer for Overtime #87398

I’m shocked and mortified that we apparently do not. We have, of course, written extensively on the subject. But for some reason we don’t have a template of an agreement. I will put that on the HRI editorial agenda rest assured. I can also look for some templates from the outside if you’d like. If so, contact me at glennd@bongarde.com and I’ll scope it out for you.

[vickyp]

in reply to: Answer for Seasonal employees vs contract employees? #87397

Yes, that’s what our payroll expert Alan McEwan meant. He was the one who answered the question.

[vickyp]

in reply to: Answer for Seasonal employees vs contract employees? #87396

Generally, all these terms – seasonal, contract, summer – refer to situations where the employment is for a fixed time period or for the accomplishment of a specific project.
So long as the actual length of employment does not exceed 12 months, or for more than 3 months past the agreed upon term, there is no notice required to be given or paid at the end of the contract.
Note, however, that notice may be required if the person is terminated by the employer after 3 months have passed, but before the expected term has been completed.
For example, you might hire a summer student for 5 months, May 1st to September 30. If the person is terminated by the employer on August 15, 1 week of notice will be required.

[vickyp]

in reply to: Answer for Seasonal employees vs contract employees? #87395

I have to run out of the office early today but I promise to post a response first thing tomorrow. Okay? Sorry about that. I try to respond to these things on the same day. But something just came up.

[vickyp]

in reply to: Answer for New Contracts – Ontario #87394

I don’t see any reason why not. Just to be clear, you’re offering benefit ENHANCEMENTS. It would be much more problematic if you were seeking to reduce their benefits, in which case you’d be running the risk of constructive dismissal and breach of contract. Just don’t get why any employee would say no to more benefits. Or am I missing something? Feel free to contact me directly if you want to follow up. glennd@bongarde.com

[vickyp]

in reply to: Answer for info-sheets #87393

Yes. They don’t all have posters but all jurisdictions require employers to post certain materials. Here are links to the employment standards posting requirements of all jurisdictions outside Ontario. Just click on whichever one you need.
Alberta https://hrinsider.ca/workplace-posting-requirements-employment-standards-checklist-alberta/
BC https://hrinsider.ca/workplace-posting-requirements-employment-standards-checklist-british-columbia/
Federal https://hrinsider.ca/workplace-posting-requirements-employment-standards-checklist-federal/
Manitoba https://hrinsider.ca/workplace-posting-requirements-employment-standards-checklist-manitoba/
New Brunswick https://hrinsider.ca/workplace-posting-requirements-employment-standards-checklist-new-brunswick/
Newfoundland https://hrinsider.ca/workplace-posting-requirements-checklist-newfoundland-and-labrador/
Nova Scotia https://hrinsider.ca/workplace-posting-requirements-employment-standards-checklist-nova-scotia/
NWT, https://hrinsider.ca/workplace-posting-requirements-employment-standards-checklist-northwest-territories/
Nunavut, https://hrinsider.ca/workplace-posting-requirements-employment-standards-checklist-nunavut/
PEI https://hrinsider.ca/workplace-posting-requirements-employment-standards-checklist-prince-edward-island/
Quebec https://hrinsider.ca/workplace-posting-requirements-employment-standards-checklist-quebec/
Saskatchewan https://hrinsider.ca/workplace-posting-requirements-employment-standards-checklist-ae-saskatchewan/
Yukon https://hrinsider.ca/workplace-posting-requirements-employment-standards-checklist-yukon/

[vickyp]

in reply to: Answer for Procedures when rehiring an employee – Ontario #87392

Under the Ontario ESA, if the gap in employment is less than 14 weeks, the two periods of employment for the purpose of determining a person’s right to notice,. For example, if the 1st period was 3 years and the 2nd is 6 months, the person’s service is 3 years and 6 months, for the purpose of the notice required on termination.
For all other purposes, each period of employment can be treated separately under the ESA. At that point, it becomes a matter of what the original contract said or didn’t provide for in the event of termination and re-execution. Chances are, this issue wasn’t addressed. Hope that helps. Glenn

[vickyp]

in reply to: Answer for BC – Disclosure of employee misconduct/termination at an external organization #87391

I’m not a privacy expert but I believe you can and must act immediately with or without the employee’s consent to the extent that there’s an overriding personal health and safety need. But while I believe you can legally proceed without consent if you must, you also need to make a non-law, practical decision about how best to proceed based on the situation and especially your relationship with the employee. Do you feel comfortable, consider engaging the employee directly, explaining what you’ve heard and asking for an explanation. At that point, you can decide whether you’re comfortable or need to move forward, including via reaching out to the other organization.
Above all, remember that your paramount concern is the vulnerable people with whom the employee works. Err in the side of their safety and welfare. Also try to talk to a lawyer who can offer legal counsel, bearing in mind that this is just a personal opinion based on an incomplete knowledge of the situation and that I’m not qualified or legally allowed to give you legal advice even if I was closer to the situation. But act fast, okay. Thanks and I hope this helps. Glenn

[vickyp]

in reply to: Answer for Office relocation notice and constructive dismissal – Ontario #87390

That’s an excellent question. As is always the case with constructive dismissal, the answer to the question of whether a 1 hour relocation crosses the line is “it depends.” The first thing I’d ask is whether that’s the ONLY change. A relocation is more likely to constitute CD when it’s accompanied by other unfavourable changes to which employees didn’t agree. The more changes, the greater the risk. By the same token, a single change MAY BE enough if its impact on employees is significant and unfavourable enough. It’s hard to predict. The good news is that the acknowledgement should diminish your liability risks vis-a-vis the employees that actually signed it.
Meantime, here’s an article that addresses the question and looks at cases where courts had to decide whether a relocation was CD. https://hrinsider.ca/hr-legal-briefing-is-requiring-an-employee-to-relocate-constructive-dismissal/   Hope this helps. Glenn

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