[vickyp]

in reply to: Answer for Employee Social Media Use & Personal Advertising #87074

Yes and It Depends
Even though it’s a personal account, you CAN ask the employee to refrain from associating him/herself with both companies. In fact, you may be able to require him/her to if you have clearly written policies or ethics codes restricting employees’ rights to use your corporate name, logos, property, etc. for personal uses or professional endeavors outside your company without permission. Even if you don’t, you can and probably should strongly advise the employee to cease and desist.
Your right to directly edit the posting depends on: i. whether the employee is using company computers or devices to post; ii. your computer use policy gives you the right to edit or take down posts made via your equipment, including language specifying that employee has no reasonable expectation of privacy or complete personal control over such communications.
At the end of the day, don’t get cowed because this is PERSONAL social media and keep in mind that court cases have made it abundantly clear that employers do have grounds to discipline employees for what they post about the company, its clients, employees, etc. on their private social media accounts. At that point, the issue becomes like any other disciplinary matter–did you have clear policies, warn the employee, etc.    Hope that helps and enjoy the holiday. Glenn

[vickyp]

in reply to: Answer for Mandatory Overtime #87073

This is a job for Alan McEwen, our payroll guy. I’ll forward him the Q and let u know when I hear back. Glenn

[vickyp]

in reply to: Answer for Employee resigns without proper notice #87072

Yes and No.
Yes, the employment letter may require the employee to provide the notice required by Sec. 58(1) of the Alberta ESC–although you wouldn’t need to do that since employee’s already required to provide notice unless one of the exemptions of Sec. 58(2) applied, in which case the contract clause would come into play. In other words, the contract would require notice even where the ESC doesn’t.
But reducing employees’ accrued vax for not providing required notice would be far more problematic especially if the resulting amount would be below the minimum required by the ESC. I don’t think there’s any way you can do that, but I’m going to get a second opinion from our payroll guru, Alan McEwen. Will relay his response as soon as I get it.

[vickyp]

in reply to: Answer for Vacation Requirements – Ontario #87071

Vacation time earned for a vacation entitlement year (or stub period) must be taken within 10 months after completing that year (or stub period). You have the right to schedule vacation + are required to ensure the vacation time is scheduled and taken before the end of that 10-month period.
Employees may waive some or all of their earned vacation TIME (if the employer agrees + the Ontario Director of Employment Standards approves) but not their vacation PAY.
Does that answer your Q? If not, feel free to contact me directly at glennd@bongarde.com. Here’s a link to the MOL Guidelines if you want to dig deeper, https://www.ontario.ca/document/your-guide-employment-standards-act-0/vacation#section-3

[vickyp]

in reply to: Answer for Deducting Pay for vacation used but not accrued #87070

From Alan McEwen, our payroll expert:
In Manitoba, unless an employee agrees in writing, an employer’s ability to recover vacation pay paid before the entitlement was fully earned is capped at what could be garnished.
This means that 70% of the vacation advance is free from garnishment, to a minimum dollar exemption of $250 (no dependents) or $350 (if the employee has dependents)

[vickyp]

in reply to: Answer for Termination pay #87069

It looks like my response is good to go. Here’s what Alan had to say:
You might want to add that voluntarily agreeing to severance, I prefer the term retiring allowance, coupled with the proper release, could avoid the cost and difficulty of an emploee attempting to claim wrongful dismissal
Hope that helps and sorry again for the delay. Glenn

[vickyp]

in reply to: Answer for Termination pay #87068

As in most provinces, Sask. does not provide for STATUTORY severance pay. In other words, the Sask. Employment Act provides for employment notice but NOT severance. However, you may still be bound to pay severance if it’s required in the employment contract or the collective agreement (if the employee is union). In that case, you’d have to look at the actual contract language to make a determination about whether severance is due in this case.
In addition, many employers agree voluntarily to provide severance (in addition to the required termination notice) as part of the termination package.
I’ve also asked our payroll expert, Alan McEwen, to weigh in. He knows far more about this than me. I’ll let you know as soon as I hear back.
Sorry about the delay. I usually answer my “mail” once a week and this Q came in just after I wrapped up. In the future, you can always contact me directly at glennd@bongarde.com if you need immediate help. Glenn

[vickyp]

in reply to: Answer for Employee access to personnel files #87067

OK, just so we’re clear, this is a personal opinion, not legal guidance.
1. Electronic Access: PIPA doesn’t specify the format of the personal information; Sec. 10.4(b) says the employee is “entitled to review” the info in paper or electronic format but doesn’t say that you must generate paper records of info kept electronically. In other words, there are no clear rules re: format. As a practical matter, if the employee or his rep. can’t make sense of the elex records, I WOULD provide them in paper form so as to keep with the spirit of Sec. 10.4(b) and PIPA which is all about providing for MEANINGFUL access, assuming, of course, that there isn’t some kind of major hitch, e.g., costs in generating the paper records.
2. Shield from Disclosure: Under Sec. 23(3) of PIPA the duty to provide access doesn’t cover:
(a)information protected by solicitor-client privilege;
(b) information whose disclosure would reveal confidential commercial information that if disclosed, could, in the opinion of a reasonable person, harm the competitive position of the organization;
(c) information collected or disclosed without consent, as allowed under section 12 or 18, for the purposes of an investigation and the investigation and associated proceedings and appeals have not been completed; (there is no (d))
(e) information collected or created by a mediator or arbitrator in the conduct of a mediation or arbitration for which he or she was appointed to act under a collective agreement,)under an enactment, or by a court;
(f)information in a document that is subject to a solicitor’s lien.
Under (4), you MAY NOT disclose info if the disclosure:
(a)could reasonably be expected to threaten the safety or physical or mental health of an individual other than the individual who made the request;
(b)can reasonably be expected to cause immediate or grave harm to the safety or to the physical or mental health of the individual who made the request;
(c) would reveal personal information about another individual;
(d)would reveal the identity of an individual who has provided personal information about another individual and the individual providing the personal information does not consent to disclosure of his or her identity.
Unfortunately, none of these situations covers “manager’s notes.” However, the 22(4)(c) or (d) exceptions for disclosures affecting other employees or third parties who didn’t consent to disclosure may come in handy
One last thing: The part of the collective agreement about nobody being allowed to see personal info unless their job requires it doesn’t cancel out employees’ right of access to their OWN personal info under PIPA. But again, to the extent that the info includes stuff about third parties, it’s shielded.
Hope that helps and good luck. Glenn
.

[vickyp]

in reply to: Answer for can we send employees home if there is no work #87066

Yes, provided you pay them call-in pay. In Ontario, call-in pay rules are set out in ESA Sec. 21.2, which I’ve pasted below. Just go thru each part of the Section and see if it applies to your situation, e.g., Do workers regularly work more than 3 hours per day, are they required to be present at work, etc.
Three hour rule
21.2 (1) If an employee who regularly works more than three hours a day is required to present himself or herself for work but works less than three hours, despite being available to work longer, the employer shall pay the employee wages for three hours, equal to the greater of the following:
1. The sum of,
i. the amount the employee earned for the time worked, and
ii. wages equal to the employee’s regular rate for the remainder of the time.
2. Wages equal to the employee’s regular rate for three hours of work. 2018, c. 14, Sched. 1, s. 5.
Exception
(2) Subsection (1) does not apply if the employer is unable to provide work for the employee because of fire, lightning, power failure, storms or similar causes beyond the employer’s control that result in the stopping of work. 2018, c. 14, Sched. 1, s. 5.
Hope that helps. Glenn

[vickyp]

in reply to: Answer for Is there a maximum limit that you can continue to send employees home due to slow production before it would be considered a lay off? #87065

Here’s Alan’s reply. He raises some good points. But I’d also remind you to refer to ESA Sec. 56(3.1) that we discussed yesterday and which I’ve pasted in after Alan’s reply:
*****
A lay-off in Ontario  means earning less than 50% of the regular wages that would otherwise have been worked. Becomes a termination after more than 13 weeks of lay-off in any 20.
The bigger issue is whether the employment contract permits lay-offs. If not explicitly provided for then the circumstances below amount to a termination, for which wages in lieu of notice would have to be provided.
They might also want to look into the EI programs around job sharing, which is meant to help out in these situations.
*****
Definition
(3) In subsections (3.1) to (3.6),
“excluded week” means a week during which, for one or more days, the employee is not able to work, is not available for work, is subject to a disciplinary suspension or is not provided with work because of a strike or lock-out occurring at his or her place of employment or elsewhere.  2002, c. 18, Sched. J, s. 3 (23).

Lay-off, regular work week
Sec. 56(3.1) For the purpose of subsection (2), an employee who has a regular work week is laid off for a week if,
(a) in that week, the employee earns less than one-half the amount he or she would earn at his or her regular rate in a regular work week; and
(b) the week is not an excluded week.  2002, c. 18, Sched. J, s. 3 (23).

[vickyp]

in reply to: Answer for Is there a maximum limit that you can continue to send employees home due to slow production before it would be considered a lay off? #87064

Let me run this by Alan, our payroll guy, and get right back to you. One quick Q: How many workers are affected? If it’s 50 or more, group termination rules would apply. Feel free to call me directly, 203 354-4532; glennd@bongarde.com

[vickyp]

in reply to: Answer for Contract for Term Employee #87063

From our payroll guru, Alan. Sorry to keep u waiting over the weekend.
Unfortunately, the laws in Manitoba aren’t helpful to the employer in this situation.
There are two exceptions to the requirement to provide notice which might be useful, but which the employer probably can’t rely on in the situation described below.
Clause 62(1)(b), exempts a person from the notice requirements if they are hired for a fixed term. However, it requires the person to work that whole term for the exception to apply.
Clause 62(1)(c) exempts a person if they are hired for a specific task, i.e. a mat leave replacement, but the catch here is that the period of employment can’t exceed 12 months.
If neither of these apply, the normal notice requirements apply, i.e. 2 weeks for 13 months of service.
It would seem there’s no escaping these notice requirements in the situation described. The best advice I can offer is to ensure that the common law requirements are limited in the letter of offer to these employment standard minimums.

[vickyp]

in reply to: Answer for Contract for Term Employee #87062

To answer this, I need to know if you’re federally regulated or subject to Manitoba ESC laws. You can reply directly to me at glennd@bongarde.com, if you want. Glenn

[vickyp]

in reply to: Answer for Document Retention Policy #87061

Here are the best models I could find from each jurisdiction. Most of the examples are from educational institutions and won’t pertain to you (unless you’re in education yourself). I declined to include government and healthcare examples because they’re too specialized. And if you let me know what state you want, I’ll try and find you a US model.
Alberta: https://www.ffca-calgary.com/download/131555  (Note that “E” refers to the event. This’ll help u read the chart.)
BC: https://www.britishcouncil.org/sites/…/files/british_council_retention_schedule_2.xlsx
https://www.theaiatrust.com/filecabinet/Sample-Document-Retention-Policy-Metadata-Paper.pdf     http://bcmqi.ca/Policies%20and%20Guidelines/BCMQIO_Retention_Storage_and_Disposal_Policy_V2.0.pdf
Manitoba: (School–retention sched begins on p. 13) https://www.edu.gov.mb.ca/k12/docs/policy/retention/retention.pdf
Ontario: scroll down to p. 124 https://www.burlington.ca/en/services-for-you/resources/Ongoing_Projects/Open_Data/Catalogue/Records_Retention_bylaw_data_schedule.pdf       https://www.georgebrown.ca/uploadedFiles/Archives/Content/Retention%20Chart%20(Version%202).pdf
Sask: http://saskschoolboards.ca/wp-content/uploads/2015/08/Sep13_RecordsRetentionGuide.pdf scroll down to page 9
Hope this helps. Glenn

[vickyp]

in reply to: Answer for WSIB – Indepedent Contractor #87060

To answer that, I need to know WHAT KIND of contractor you are, i.e., what kind of work you do. If it’s construction work, you probably do have to register but you may still qualify for an exemption. Carrying liability insurance is one of the requirements for WSIB registration and getting the necessary Clearance Certification. Of course, getting liability insurance isn’t just a legal imperative but a business one since if you don’t have insurance, nobody will hire you. But, again, it depends on the kind of contractor you are.
So, loop back with me and I’ll give you a follow-up response when I find out what you do. OK? You can reach me directly at glennd@bongarde.com.

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