[vickyp]

in reply to: Answer for Change in commission structure and its agreement #87359

Probably not, but there are a bunch of variables at work here.
First question: Do you have a preexisting written agreement with the sales people? If so, are the commission changes less favorable than the original terms? If the answer to both of those questions is yes, the changes won’t be enforceable even if employees do sign UNLESS you give them what’s called consideration, or something of value in exchange for accepting the new terms. Consideration must be something the employees didn’t have before. So, if like many employers do, you make “employment” or “continued employment” the consideration, it won’t work–although that probably will work for new employees you don’t already employ.
The wildcard in all of this is what the original contract says or doesn’t say. Specifically, is there anything in the agreement that gives you the right to modify the commission terms unilaterally? If so, you should be on solid ground.
Bottom Line: Try to get everybody to sign and make sure you’re giving them consideration, unless the contract says you can make unilateral changes, in which case you don’t have to deal with the consideration problem. Hope that helps.

[vickyp]

in reply to: Answer for Car Pooling #87358

Thank you!

[vickyp]

in reply to: Answer for Car Pooling #87357

Yes, I believe car pooling would be legal as long as: i. ALL the occupants of the vehicle are essential workers traveling to or from their essential employment; and ii. None are symptomatic, confirmed as having COVID or recently exposed to a confirmed COVID case in the past 48 hours (or have traveled outside Ontario in 14 days). CAVEAT: The Toronto and Peel Health Regions recently issued more stringent Stay-At-Home guidelines that I haven’t yet read. So, you need to check those guidelines if you’re in one of those Regions just to be safe.
: Potential maximum fines for violating COVID public health orders in Ontario:

• Corporations: $1,000
• Employees and customers: $750
• Individuals actually tried and convicted: $100,000
• Directors and officers of corporations actually tried and convicted: $500,000
• Corporations actually tried and convicted: $10 million.

Hope that helps. God bless you all as you hunker down. We’ll all gonna come through this, I promise.

[vickyp]

in reply to: Answer for Alberta – Overtime and Averaging #87356

Here’s Alan’s response. He will be happy to talk to you if you want to follow up. I believe he’s included his contact info. Hope this helps you deal with your situation. Glenn

armcewen@shaw.ca

4:02 PM (44 minutes ago)

to Vicky, me

Unfortunately, the AB employment standards aren’t likely going to be of much use.

Averaging agreements are ways that employers can avoid having to pay overtime. They really only work where the hours of work, while capable of being scheduled, vary from day to day.
This is true of compressed work schedules, i.e. 3 twelve-hour days on, followed by 4 days off, for example. Less common are situations where the hours of work are something like Monday – Wednesday at 6 hours per day, Thursday and Friday at 12 hours per day.

No matter how you slice it there will still be overtime if employees are expected to work 10-hour days, 5 days a week.
You can avoid daily overtime using an averaging agreement, but not the overtime threshold of 44 hours per week.

Your best bet is to look at the overtime exemptions that apply to various industries. You mention field work, but you don’t describe what.
Even then these exemptions may not apply to your shop employees.

I understand that not all employers follow these rules, but you have to decide for yourself whether these will be followed.
The greatest risk of not following them comes from disgruntled employees who file a claim for unpaid wages after they leave your employ.

Alan R. McEwen
Alan McEwen & Associates
855 Berwick Road South, Qualicum Beach, BC  V9K 1R3
250-228-5280 in the Pacific time zone
https://alanrmcewen.com

[vickyp]

in reply to: Answer for Alberta – Overtime and Averaging #87355

I’m going to send your question to our payroll expert. Hopefully, it will solve the problem. If not and you still want to talk to somebody, Gmail me at glennd@bongarde.com and I’ll see if I can get Alan on the phone.

[vickyp]

in reply to: Answer for URGENT INQUIRY #87354

Phone and car allowances aren’t ESA benefits a la vacation, stat holiday pay, etc. As a result, the employee’s entitlements all depend on what his or her employment agreement says.

[vickyp]

in reply to: Answer for BC- We have received written resignation of our sales manager who is in a position that we prefer doesn’t have contact with our customers – what is the best way to go about this? #87353

Courtesy of our payroll expert, Alan McEwan:
*****
Options are:

1. Let the person work out the notice given.
2. Terminate on the spot, paying the dollar amount of whatever this person would have earned (including bonuses, vacation pay, etc.) during the notice given.
3. Put the person on a paid leave, until the end of the notice given.
4. Negotiate a shorter, paid notice period, using some combination of 1 to 3.

In all cases, the reason for leaving on the ROE would be quit.
The advantage of 2 is that it caps any possible liability from a disability claim.

[vickyp]

in reply to: Answer for long-term-disability-and-gradual-return #87352

The short answer is no. Although I’m nothing like an expert on the subject, I do know that the WSIB re-employment and RTW work rules are really strict. On the other hand, those workers comp rules apply only if the injury/illness from which the employee is returning is work-related.
But even if the workers comp rules apply, gradual RTW might be required as a disability accommodation under human rights laws. At the very minimum, you’d have to perform a functional assessment of the employee’s capabilities and determine whether there are any positions that are suitable for those capabilities–either an existing position or one you could reasonably create. At the same time, the duty to accommodate doesn’t require you to do things that would impose undue hardship. Whether a particular RTW plan is a reasonable accommodation or undue hardship depends on the specific facts and employee’s unique capabilities and situations. One thing that is clear, though, is that the employee must cooperate in the accommodation process, including but not limited to by providing the medical info you need to make the functional assessment.
I know this doesn’t exactly answer your question but I hope it does provide a framework you can use to answer the question yourself. Feel free to follow up directly at glennd@bongarde.com if I can be of further help. Glenn

[vickyp]

in reply to: Answer for Maternity Leave & Vacation Pay #87351

From our payroll expert, Alan McEwan.
*****
It all depends on what the actual terms and conditions of the vacation pay are in the employment contract.
If there is just the simple promise of 10 paid vacation days per year, without any qualification around completing the year first or for active vesus inactive service, then the person is entitled to those 10 paid days.
Obviously, there should be some consideration to changing the policy (and the contract of employment) to take into account inactive and unpaid service.
However, if the vacation time is 10 days, the minimum vacation pay required would be 4% of vacationable earnings.

[vickyp]

in reply to: Answer for Can an employee determine their return to work date after 10 day self-isolation? #87350

Yes but with 2 caveats: 1. I don’t know all the facts involved. 2. This is just a personal opinion and NOT legal counsel, which I’m neither qualified nor allowed to provide you. If possible, talk to a lawyer before deciding whether to terminate the employee.

[vickyp]

in reply to: Answer for Can an employee determine their return to work date after 10 day self-isolation? #87349

Correct. Employees can’t choose their return date if they’re in COVID mandated self isolation. More precisely, they definitely aren’t allowed to shorten it; however, they may be able to extend it IF they have grounds for additional leave under the ESA or their contract/collective agreement. In other words, once the 14 days expires, the need for leave ends and they must return. However, something else might have happened that itself constitutes grounds for leave. Maybe a close family member got sick, for example.
Bottom Line: Ask the employee WHY he/she isn’t coming back after the 14 days. If he/she claims it’s due to another leave, require verification. If he/she doesn’t have justification, you can insist he/she return after the 14 days. Or maybe give them the option of using vacation days. But they can’t dictate when their isolation leave ends.

[vickyp]

in reply to: Answer for Recommendations on Employment Lawyers (Ontario) #87348

I don’t know your budget but based on my own experiences as a journalist, I can personally vouch for 3 firms, all in Toronto. In the interest of fair disclosure, I use lawyers from these firms as editorial advisors and have great personal affection for all of them. But I can also say without a shadow of a doubt that they’re all first rate lawyers. So, take this with a grain of salt.
Matthews Dinsdale https://mathewsdinsdale.com/about/
Stringer, LLP  https://www.stringerllp.com/
Gowling, WLG https://gowlingwlg.com/en/

[vickyp]

in reply to: Answer for Ontario #87347

You can ALWAYS request that they get tested. In fact, you should make such a request. Whether you can require them to do so is much more problematic. The short answer in this case, I believe, is no.
As I recall, your in the food processing sector where risks are high and employers are in a stronger position to demand that workers gets tested. The problem is–and I should have picked up on it the other day except I was so caught up in the part about asking if they’ve been vaccinated–that they’re going into isolation for 14 days anyway. As a result, the test result will have no real impact on the health of your workplace and your justification for requiring it (as opposed to recommending it) disappears. The same would be true if you asked them to disclose the results.
However, you MIGHT have a case for requiring them to get tested after their isolation ends to verify that they’re COVID-free and can safely return to work. But that’s not a slam dunk. Hope that helps and sorry I didn’t really answer it the first time around. Glenn

[vickyp]

in reply to: Answer for Paid time off for COVID-19 Vaccinations #87346

Here’s a Model Policy we just created, thanks to your inspiration, for paid vaccination leave. Hope it helps.
Employee Right to Paid COVID-19 Vaccination Leave Interim Policy

1. PURPOSE

ABC Company believes that the new COVID-19 vaccinations are safe and effective and strongly encourages all employees to receive it, especially those who work in close contact with patients, clients, customers, co-workers or are otherwise at high risk of coronavirus infection. At the same time, the Company recognizes that vaccination appointments are difficult to obtain and that it might be necessary to schedule them during working hours. Accordingly, we have adopted this Policy to ensure that employees do not have to sacrifice any of their wages, vacation or paid sick days to receive the vaccination.

1. POLICY

ABC Company employees will be entitled to paid leave of up to 3 hours per injection to receive the COVID-19 vaccination. This leave covers up to 2 injections per employee. Pay will be at the employee’s regular rate of pay and shall not be charged against the employee’s entitled vacation, sick or any other leave.

1. NOTIFICATION & VERIFICATION

Employees must notify their supervisor of their intent to use this COVID-19 vaccination leave and the time and date of their vaccination appointment as soon as possible. ABC Company reserves the right to request that employees provide verification of their appointments before taking leave and of having actually received the vaccination afterwards. Failure to provide such verification may be grounds for treating the missed time as unpaid rather than paid leave.

1. POTENTIAL EXTENSION

Employees may request ABC Company to extend their paid COVID-19 vaccination leave if they suffer adverse health effects from or encounter unforeseen circumstances or delays in receiving the vaccination, such as unusually long lines or appointments in faraway and remote locations. Extension requests must be submitted to the HR Department and ABC reserves the right to accept or decline them at its sole discretion.

1. NON-RETALIATION

ABC Company will not discharge, threaten, penalize or in any other manner discriminate or retaliate against any employee for exercising their rights under this Policy, including but not limited to requesting or obtaining a leave of absence to be vaccinated for COVID-19.

1. DURATION

This is an interim Policy that ABC Company may revoke at any time at its sole discretion, such to its obligations under [province] employment standards and other applicable laws and collective agreements.

[vickyp]

in reply to: Answer for Is a termination clause enforceable? #87345

Any time, Teodora.

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