[vickyp]

in reply to: Answer for Employee Engagement Surveys #86925

You’re looking for an engagement survey vendor, right? Here’s a pretty good list from SHRM (Society for Human Resources Management) that you can start with–although I can’t personally recommend or dis-recommend (if that’s a word) any particular one. http://vendordirectory.shrm.org/category/testing-surveys/employee-engagement-surveys

[vickyp]

in reply to: Answer for Performance/KPIs – Confidential #86924

While I can see how that might be a sensitive issue, I don’t think it would be a LEGAL violation.
The first Q is whether personal privacy laws even apply in a workplace setting. Alberta, BC and Quebec do provide employees statutory privacy rights; employees of federally regulated companies have equivalent rights under PIPEDA.
Assuming statutory workplace privacy protections do apply, the next Q would be whether information about job performance would be deemed protected personal information. While I haven’t researched it, my guess is that it would not fall into the category of protected information.
Another key Q is whether employees have a reasonable expectation of privacy in that information. The answer to that would turn on what your HR policies say–thus, for example, you could probably blow the argument out of the water by including a specific provision stating that info related to job information belongs to the organization and that employees should have no reasonable expectations that it will be kept private. Other factors would include what your employment contracts and collective agreements say or don’t say.
But having gone thru all this legal stuff, I’d also quickly add that this might be better addressed outside the law via old fashioned negotiation. Have you asked your employees if they’re upset? If so, have you explored ways to allay their concerns? Maybe you can work something out.

[vickyp]

in reply to: Answer for Calculating vacation pay for hourly employee #86923

Great Q and a timely one–even if I wasn’t so timely in answering it 🙁   What you’re talking about is a concept known as pay transparency and I think it’s poised to become the next big thing in HR law.
Last month, Ontario became the first province to adopt a pay transparency law, which takes effect on Jan. 1. Among other things, the law bans employer reprisals against employees for discussing salary with each other. (I believe the protection also extends to job applicants.) And a policy banning such info sharing would, of course, be unenforceable.
But that’s Ontario only. At least for now. I’d be quite surprised if other provinces, maybe even Alberta, adopted their own pay transparency laws some time in the not too distant future. But it hasn’t happened yet. Hope that helps. Glenn

[vickyp]

in reply to: Answer for Job Offer Letter – Province Specific #86922

I’d say one TEMPLATE should work for all provinces but how you complete that template may vary based on the actual business terms of the offer. And, yes, to the extent the offered employment terms are tied to the statutory minimum under the province’s employment standards law, you WOULD need a separate letter for each province. On the other hand, since it’s a CONTRACTOR and not an employment arrangement, the ESA probably wouldn’t even fit into the equation.
Explanation: From my perspective as a lawyer, as opposed to a business person’s perspective, I’d suggest that all offer letters follow the same basic template listing:
*Job Position
*Duties/Responsibilities
*Starting date
* Probationary period,  if any
*Salary/Wage
*Benefits
*Vacation
*Termination terms, e.g., minimum notice under ESA law

Hope that helps. Glenn

[vickyp]

in reply to: Answer for Attendance Management Policy – Ontario #86921

Simply stated, you CAN’T count PEL or any other forms of leave to which employees are entitled under the ESA as absences–not even non-culpable absences. Nor can you use such leaves as triggers for non-culpable absence management review.  If you do, you’re penalizing the employee for exercising their ESA rights and that’s a violation.
The above is true even if employees voluntarily agree. The rule is that employees aren’t allowed to bargain away their ESA rights even if they want to–unless the contract/collective agreement gives them a more generous entitlement.
While I haven’t seen or heard of any employers adjusting their triggers for PEL, what I HAVE seen are attempts to substitute floater days or other paid days off for the first 2 days of PEL, which are now paid under Bill 148. This is a very dicey proposition for the same reason that counting PEL days as absences is (as explained above). Here’s a write-up of a brand new OLRB case dealing with the issue.
Employer Can’t Force Employees to Swap “Floater Days” for Paid PEL Leave
On Jan. 1, 2018, Ontario changed its ESA laws (Bill 148) to make the first 2 days of personal emergency leave (PEL) paid. After the change took effect, 2 union employees took days off to deal with personal illnesses but didn’t get PEL pay for the days. The union grieved but management contended that the 2 days of paid PEL guaranteed by the ESA didn’t apply because the collective agreement provided a “greater entitlement,” namely 3 paid “floater days.” The Board disagreed. Floater days weren’t equivalent to PEL days even though the collective agreement allowed for swapping the former for the latter. But the swap had to be at the employee’s choice and each of the employees in this case said no to swapping PEL days for floater days. So, forcing them to swap thus violated the collective agreement and deprived them of their ESA entitlement to 2 days’ paid PEL leave [Carillion Services Inc. c Labourers’ International Union of North America, Local 183, 2018 CanLII 47110 (ON LA), May 25, 2018].
****
Hope that helps. Glenn Demby 203 354-4532

[vickyp]

in reply to: Answer for Notice Period for Temp Layoffs #86920

Sorry for the delay. I am checking with our outside payroll expert and will get back to you as soon I hear back from him. Thank you for your patience. Glenn

[vickyp]

in reply to: Answer for Rate of pay #86919

My first Q is if the manager is stepping down, why are you paying him/her at all? I suspect that to the extent you’re on the hook to continue paying a person after their employment ends stems from the employment contract and/or benefit plan. In that situation, the terms of the contract or plan itself would define your payment obligations.
The other possibility is that by “stepping down” you mean not resigning but going on leave. But the approach would be roughly the same in this situation. First of all, the leave provisions of your jurisdiction’s employment standards laws probably don’t apply to the extent the person is a “manager.” Again, though, the payment obligations would be defined by the source of the manager’s right to take leave–presumably, that would be either the contract or an executive leave policy or program.
Bottom Line: The manager’s rights to pay, if any, would be based not on employment standards or other legislation but the terms of the contract or benefits plan arrangements between the manager and your organization.
Hope that helps and if I misunderstood the Q, please let me know and I’ll take another stab at it. Thanks. Glenn

[vickyp]

in reply to: Answer for Casual Employment #86918

Need to know a little more before I can answer:

1. Which jurisdiction are you in–or are you federally regulated?
2. Is the casual employee a direct hire or hired through a temp agency?
3. What is the approximate duration of the arrangement–is it more or less than 3 months (or whatever the duration for probationary employment is in your jurisdiction)?

I’ll try and get you an answer as soon as I hear back from you. If you want to speed things up, you can email me at glennd@bongarde.com   Thx.Glenn

[vickyp]

in reply to: Answer for Employee Washroom Breaks #86917

First of all, congratulations and kudos for asking this Q. You’d be surprised at how many people would hammer the employee for the bathroom breaks without stopping to consider that the conduct  may be the product of a medical issue or disability.
So, in a sense, in asking if there’s a “sensitive way” to broach the subject, you’ve answered your own Q. The answer, of course, is yes. Part of it is tone–the person who talks to the employee must show extreme sensitivity and tact. The other thing I’d suggest–and this comes up when employers suspect an employee of having a substance abuse problem–is to be constructive. Make it clear that you’re Q is in no way meant as an accusation and that the objective of asking it is to see if the employee needs help and not to impose discipline. If you do have an issue, we need to know about it so we can determine how to accommodate you. That’s what you’re looking for.
Bottom Line: Don’t back away. Your productivity concerns are 100% legitimate and you have every right to pursue this line of inquiry. Yes, there are legal implications in bringing up medical issues but you should be able to manage these risks by showing sensitivity and, to the extent the employee does disclose medical issues, follow to properly accommodate them.
Hope that helps. Glenn

[vickyp]

in reply to: Answer for VP of Sales Bonus Structure #86916

Structuring effective sales exec compensation plans is way out of my league. But there is a whole lot of other people who write about this stuff. Unfortunately, most of the analysis seems to be either obvious oversimplification–e.g., “align incentives with organizational goals”–duh!!, or greek-lettered analysis that only an MBA can decipher. But I did manage to come up with a few resources that I found practical, useful and comprehensible. Here they are:
https://www.saastr.com/a-basic-structure-for-a-vp-sales-comp-plan-the-505025/
https://www.wilsongroup.com/wp-content/uploads/2011/03/The-5-Essential-Drivers-of-Success-for-Sales-Compensation-Plans.pdf
https://www.ringdna.com/blog/these-inside-sales-compensation-plan-templates-will-motivate-your-reps-to-win-revenue
https://www.saleshacker.com/sales-compensation-plan-blueprint/
https://hbr.org/2012/07/motivating-salespeople-what-really-works
Hope this helps. Glenn

[vickyp]

in reply to: Answer for On Call pay for Dispatcher Position #86915

Our payroll poobah suggests that a better strategy, at least from the employer’s perspective, would be to enter into an averaging agreement that averages overtime over 2-week cycles and in which any excess hours in the 7 days on would be offset by the 7 days off.

However you decide to proceed–averaging agreement or on call premium–remember that you need to track actual hours worked.

Hope that helps and was worth the wait. Will try to be much faster in the future. Glenn

[vickyp]

in reply to: Answer for On Call pay for Dispatcher Position #86914

Haven’t forgotten you. Just waiting to hear back from our payroll expert. Will get back to you the moment I do. Thanks for your patience. Glenn

[vickyp]

in reply to: Answer for Should employers keep over the counter medications available for employees? #86913

First of all, OTC meds are NOT listed among the first aid and medical equipment and supplies that you must provide to your employees under OHS laws. But some employers choose to do so voluntarily.
The Q of whether that’s a good idea is a somewhat controversial one and I’ve seen strong arguments on both sides. For example, Alberta OHS guidelines say DON’T do it http://work.alberta.ca/documents/OHS-bulletin-fa014.pdf  ; Mayo Clinic says YES, do do it https://www.mayoclinic.org/first-aid/first-aid-kits/basics/art-20056673
And getting to your Q, these are the liability risk you face if you do make OTC drugs available to your employees:

• The employee may have an allergic reaction
• There may be side effects, e.g., drowsiness
• The meds may be addictive
• The employee may actually be an addict
• The employee may feel like he/she HAS to take the stuff

My advice:

1. If you do provide OTC meds, require that employees self-medicate–DON’T administer the drugs yourself
2. Stick to small quantities, not bulk supplies
3. Individual packets
4. Ask your OHS/WCB regional office or liability insurer what they think

Hope that helps. Glenn

[vickyp]

in reply to: Answer for Electronic Signatures #86912

As a lawyer who constantly tried to get clients to be cognizant of the litigation implications of their business activities, I really appreciate your asking that Q. But it’s also a huge Q on which volumes can–and should be–written. To start out, under basic laws of evidence, when litigation begins or is about to begin, the so called “litigation hold” requires the parties to preserve and disclose every “document” relating to any issue in the case. The word “document” is defined broadly  as including data and information recorded or stored by means of electronic devices. Once the case begins, the sides conduct a process known as “discovery” asking the adversary to provide records related to the case–in an employment case, that would include the employment records and such. Records subject to discovery include not only paper documents but also documents received, created or stored electronically within any electronic system, including individual computers, laptops, palm pilots, Blackberries, voice records, network file servers, zip drives, computer logs, back-up tapes and more.
Bottom Line: All of your employment records are basically fair game for litigation–unless privilege or other exemptions apply. This is a very basic explanation, I understand. But if you need details or want to delve into specific issues, I’d suggest you take a look at CAN/CGSB-72.34-2017, the Canadian national standard on use of electronic records as documentary evidence in not just employment but all litigation.  http://publications.gc.ca/collections/collection_2017/ongc-cgsb/P29-072-034-2017-eng.pdf   While not technically binding, it’s pretty much the consensus standard right now.
Hope that helps and good Q. Glenn

[vickyp]

in reply to: Answer for Relocation Considerations #86911

First and foremost, sorry about taking so long to get back to you. Two things caused the delay: i. My vacation; and ii. How tricky this Q is and how much time it took to research.
The answer to the Q: “Is X constructive dismissal?” is invariably “It depends.”
The good news is that there’s tons of case law on whether geographic relocation constitutes constructive dismissal. The bad news is that almost all of it deals with relos of individual employees rather than companies or offices. Still, even while such cases are relatively rare, I’m pretty sure that the same principles that apply to const dismissal of individual employees for geographic relocation or transfer would apply equally to company moves. So let me break down the rules for you.
First, it’s well established that geog relocation CAN BE one of the things triggering a constructive dism. A couple of examples:

• Marshall v Newman, Oliver & McCarten Insurance Brokers Ltd.: Ontario Court of Appeal says transferring employee is constructive dismissal because employee was never informed that she could be required to work at other locations and being able to work in the original office was an implied term of contract.
• Wilson v. UBS Securities Canada Inc. BC court says equity trader required to relocate from Vancouver to San Francisco was constructively dismissed because her employment contract didn’t contain an express or implied contractual term that allowed the company to transfer her and her expectation in joining the company was that she wouldn’t be transferred.

Now we come to your situation. Based on these and other cases, the factors that would determine if your proposed move constituted constructive dismissal would include:

1. Do you have a written contract with the 100 employees you’d be moving?
2. If so, does it allow or ban you from relocating them?
3. If there’s no contract, are there any implied agreements banning or allowing relocation?
4. What were employees’ expectations regarding relocation when they started working? Note that in the cases above, expectation of staying in same office was a key reason relo was constructive dismissal?
5. How, if at all, will the relo affect salary, benefits and working conditions–the greater the impact, the higher the risk of constructive dismissal
6. Is the relo the only change or just one of many–the more adverse changes, the greater the risk of constructive dismissal
7. Where are you moving to–the 20 minute commute location is about half as risky as the 45 minute one (unless there are other factors affecting commute like fact that 45 minute place can be accessed by public transit and the 20 minute one can’t)

One of the things you can do to minimize your risks, other than securing employees’ agreement to move, is paying all employee moving expenses. And going forward, you may want to add a so called mobility clause (assuming your contract doesn’t already have one) giving you the power to require the employee to change place of work within a set radius or a city or a particular county or region, etc.
Final note: Your Q has inspired me to do a full court research press for constructive dismissal cases involving geographic location of whole companies, as opposed to individual employees. When and if I find any such cases, I’ll loop back with you.
For now, I hope this helps and I hope it didn’t come too late to be of any benefit. Thanks, Glenn

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