On March 5, 2013, the Ontario government introduced new legislation which, if passed, would create three new job-protected leaves.

The Employment Standards Amendment Act (Leaves to Help Families), 2013, proposes new leaves that build on the existing Family Medical Leave under the ESA.  They are as follows:

Family Caregiver Leave - up to 8 weeks of unpaid leave for employees to provide care and support to a family member with a serious medical condition.

Critically Ill Child Care Leave – up to 37 weeks of upaid leave to provide care to a critically ill child.

Crime-Related Child Death and Disappearance Leave - up to 52 weeks of unpaid leave for parents of a missing child and up to 104 weeks of unpaid leave for parents of a child that has died as a result of a crime.

If passed, the leaves would allow parents and other family caregivers to provide care and support for loved ones without fear of losing their jobs.  These leaves are in addition to the current Family Medical Leave, which is available when a family member has a serious medical condition with a significant risk of death occurring within 26 weeks.  A doctor’s note would be required for the Family Caregiver Leave and the Critically Ill Child Care Leave.

Complementing the new federal Helping Families in Need Act, employees covered by the Critically Ill Child Care Leave and the Crime-Related Child Death and Disappearance Leave would be eligible to apply for federal Employment Insurance benefits.

The Ontario’s government’s news release and “backgrounder” may be accessed here.

Did you know that the Ontario Ministry of Labour has a Q&A on how to deal with natural disasters in the workplace?

The Q&A, which can be found at the link listed below, covers issues such as whether or not an employee can be forced to take vacation days in the event of a natural disaster which prohibits him or her from working, or whether an employee must be paid if he or she is told to not come to work during the disaster.

Apart from basic issues covered in the Q&A, there are a number of other things to be aware of in the event of a natural disaster.  The Emergency Management Statute Law Amendment Act, 2006 (Ontario) permits the Premier and Cabinet to introduce legislation intended to govern emergencies such as natural disasters.  In addition, the Employment Standards Act, 2000 (Ontario)  provides for unpaid emergency leave for declared emergencies such as natural disasters, which is different than the standard emergency leave to deal with an ill or injured family member.

While an employer may not wish its employees to come to work in the event of a natural disaster, there may also be situations where certain employees are in fact required to work precisely because of the natural disaster, even if the workplace is under quarantine.  The ESA specifically permits certain employees to work in those situations, if their skills are required due to an emergency.  Likewise, although employees may rely on the Occupational Health & Safety Act (Ontario) (“OHSA”) to refuse to work if they are concerned that the condition of their workplace may jeopardize their health or safety, exemptions to OHSA require certain essential employees to work notwithstanding those conditions.

In addition to the above, there are a number of other pieces of provincial and federal legislation which work together to answer some of the key questions about how to deal with a natural disaster in the workplace.  Whether that disaster relates to health issues (eg. SARS, H1N1), loss of the workplace premises or something else, this combined legislation will help employers determine the appropriate response to disasters, and it is recommended that employers be proactive about understanding their obligations so that they are prepared in the event that disaster strikes.

To access the Ministry of Labour’s Q&A, click here.  For more information about all of the workplace issues involved in the event of a natural disaster, a more thorough discussion can be found here.

Although human resources professionals are not always recognized for their efforts during a corporate acquisition, the work which they do behind the scenes can often make the difference between an acquisition succeeding or failing.  The following is a brief summary of key issues for HR professionals to stay on top of, long before an acquisition is ever contemplated, during the due diligence phase and right through to closing.

There are two types of transactions which can result in the purchase and sale of a business – a share purchase and an asset purchase.  In a share purchase, the corporate identity of the target company does not change and as a result, the employees remain employed by the same purchaser after closing.  Unless new employment agreements are negotiated with the purchaser, the employment terms and conditions of those employees will not change on closing.  In an asset purchase however, only certain assets of the target company are purchased and the employees are therefore generally terminated by the target company unless they agree to accept new employment with the purchaser.

Keeping Your House in Order:

All too often, proposed acquisitions fall through after the purchaser becomes aware of potential employee liabilities which it will have to assume in the event of an acquisition.  As an HR professional, you can assist with minimizing those liabilities long before an acquisition is being contemplated, by ensuring that: (i) well-drafted employment agreements are properly entered into; (ii) the company is protected with any necessary confidentiality, intellectual property and restrictive covenant agreements; (iii) there are no significant wages, vacation pay and overtime pay accruals; (iv) employee claims and complaints are kept to a minimum; and (v) mandatory statutory obligations are complied with (eg. WSIB registration; compliance with the Occupational Health and Safety Act; compliance with the Pay Equity Act).  When potential employment liabilities are kept to a minimum, it greatly reduces the risk of a purchaser walking away from a deal due to the added costs of correcting the liabilities.

Due Diligence:

HR professionals should be aware of the fact that even in an asset purchase, the Employment Standards Act, 2000 contains successor employer provisions.  In particular, section 9 of the ESA states that if a purchaser hires an employee of a vendor within 13 weeks of closing, the purchaser will be deemed to have taken on the employee with all of his or her prior years of service with the vendor.  Therefore, although the inclination may be to think that the purchaser in an asset deal can “fix” employment problems hand-in-hand with the hiring of employees on closing, sometimes employees will balk at going to a new employer if they are not being hired on similar or better terms to those which governed their employment with the vendor.  In this regard, it is often helpful for the vendor to work with the purchaser during the due diligence phase in order to determine who will be provided with offers of new employment and what the new and continuing terms of employment should be.

HR professionals in Ontario should also be aware of the fact that the Personal Information Protection and Electronic Documents Act (PIPEDA) does not yet have a business transaction exemption.  Although employee personal information is not generally caught under PIPEDA, it can be subject to PIPEDA when employee personal information is being collected, used or disclosed for commercial purposes such as an acquisition.  In order to ensure that there are no personal information breaches in connection with the acquisition of a company, if you work for the vendor it is wise to get the employees to sign a consent to the disclosure of their personal information at the time that they are first hired, as to do so in the midst of a transaction can tip employees off before the transaction becomes publicly known.  Whether or not the employees have signed consents at the time of hire, it is also wise for the vendor and the purchaser to enter into confidentiality agreements with respect to employee personal information which may be disclosed in relation to the transaction.

Closing:

As the closing of the transaction approaches, it is particularly important for HR professionals for both the vendor and the purchaser to try to work together to determine such issues as who will take responsibility for accrued vacation, whether releases will be sought from employees who are part of an asset purchase, whether and what type of new employment agreements will be offered to those employees who are remaining on, and ensuring that employees who are not remaining on are properly terminated at or prior to closing.  As well, there is often a need for certain key employees to remain on for a limited period to assist with transition work, and thought often needs to be given to whether those employees should be provided with a special retention bonus agreement or whether the expectation is that they will simply work out their notice of termination period doing transition work.

As always, it is important for HR professionals to obtain legal advice from an employment law specialist in conjunction with the above steps.  Together, they can make the difference between a difficult acquisition and a successful one.

A director of six Ontario companies has been sentenced to 90 days in jail after those companies systematically ignored orders to pay wages issued by the Ontario Ministry of Labour. The Ontario Employment Standards Act, 2000 does allow individuals to be fined up to $50,000.00 and/or to be imprisoned for up to 12 months if convicted of an offence, although the imposition of jail time for employment standards violations has been exceedingly rare.

However, the facts involved in this situation were particularly egregious. Sixty-one complaints had been filed by employees of the six companies for unpaid wages, all of which were substantiated. Over a period of approximately two years, 113 separate orders to pay had been issued against the six companies and the director to pay some $125,000.00 in unpaid wages. The six companies and the director failed to comply with any of these orders to pay. In addition to imposing the jail time, the Ontario Court of Justice imposed fines of $280,000.00 plus the required 25% Victim Fine Surcharge, for a total fine of $350,000.00. Although company directors that are convicted of employment standards offences are still most likely to be fined if convicted of offences under the Act, Ministry of Labour prosecutors will certainly use this decision as a strong deterrent against employers – and directors – that systematically flout their obligations.

See the Ontario Ministry of Labour press release – http://news.ontario.ca/mol/en/2012/11/director-jailed-and-companies-fined-after-failing-to-pay-employees.html

The Ontario Ministry of Labour has announced that it will focus its proactive  inspections for 2012-2013 on workplaces where there is a history of employment standards violations, where young and/or vulnerable workers are employed, and/or where large or increasing portions of the Ontario workplace are employed.

Among the specific sectors identified for targeted proactive workplace inspections in the coming year, are the following:

• auto mechanics
• building services, including security, parking, cleaning and food services
• car dealerships
• fast food restaurant franchises
• gas stations
• hotel/hospitality
• private schools
• temporary help agencies

As always, it is a good practice to be prepared for any surprise workplace inspections which may come the way of your business.  For further information on how best to prepare, please contact FMC Law’s employment and labour group.

Employers often assert that a terminated employee is not entitled to a bonus for the termination year. A decision of an Ontario court may put a small qualification on that assertion. Employers should review their bonus policies in light of this decision.

The employer terminated the employee’s employment on May 25, 2010 on a without-cause basis. On June 18, 2010 – within the employee’s four-week Employment Standards Act notice period – the employer announced its profit sharing bonus for the recently-ended fiscal year and paid it out. The employer did not pay that bonus to the employee. The employee had been paid the bonus for her three previous years of employment. The bonus was a “very significant financial part of her overall compensation.”

Mr. Justice Ricchetti of the Ontario Superior Court of Justice held that section 61(1)(a) of the Employment Standards Act “permits the employer to terminate without notice but only if the employee receives what the employee would otherwise been entitled to receive from the employer under the terms and conditions of employment during the statutory notice.”

The judge held that under the employer’s bonus plan and practices, the decision as to whether to award profit sharing at all may have been discretionary, but once the bonus had been declared, the employer had no discretion to exclude a particular employee from entitlement. As such, all employees who were employed on June 18, 2010 were entitled to the profit sharing bonus. Because that date was within the employee’s four-week Employment Standards Act notice period, she was deemed to be “employed” at that time, and was thus entitled to the profit sharing bonus payment. An employer memo, issued a few months earlier, to the effect that only “active” employees were entitled to the bonus, did not override the statutory obligation to pay the bonus to the employee.

Sandhu v. Solutions 2 go Inc., 2012 ONSC 2073 (CanLII)

The Ontario Employment Standards Act excludes from its protection holders of a “religious office”. The Ontario Labour Relations Board has issued a decision interpreting this rarely-litigated provision.

The organization, the Kashruth Council, is a not-for-profit organization the main objective of which is to ensure the availability of Kosher food products through Kashruth (Jewish dietary laws) certification and supervision of food service production and manufacturing businesses.

To do this, the Kashruth Council engages Kosher food inspectors, referred to as “Mashgiachim”, to supervise hundreds of industrial food establishments. Rand was one such inspector.

A series of events resulted in the Kashruth Council issuing a letter to Rand advising that his “employment . . . is terminated effective immediately for just cause”. Rand filed a claim for amounts owing to him as an “employee” under the Employment Standards Act.

The OLRB found that the Mashgiach was a “religious position” which has “no duties which do not serve a religious purpose”. However, Rand did not hold a “religious office”.

The OLRB held that, “The essential feature of the holder of a political or religious office is independence. A person is elected or appointed to the office and then acts in that capacity with minimal oversight”. Also, the functions or work that the person performs must be significant or important to fulfill religious obligation or ritual. According to the OLRB, Rand was not independent. The council exercised employment control over him. Also, the manner in which the Kashruth Council carried out the termination suggested that Rand was subject to the Kashruth Council’s control, which pointed to an employment relationship. The Council even referred to him, in the termination letter, as an “employee”.

One wonders whether the OLRB’s “independence” test is correct. It would seem that the test should be whether the person holds an “office” that is “religious”; independence does not seem to be a hallmark of either of those two factors.  The exemption would appear to have been intended to exclude, from the protection provided to “employees”, people who are not seen, and do not see themselves, as employees, but rather as in a spiritual or religious position. It remains to be seen whether future panels of the OLRB will apply the same test.

Kashruth Council of Canada v. Rand, 2011 CanLII 71786 (OLRB)

The Ontario Ministry of Labour has announced that it is taking steps to increase its enforcement of the Employment Standards Act, 2000.

Central to the new enforcement initiative is the hiring of an additional 18 Employment Standards Officers and staff, and the conducting of more proactive workplace inspections.   Practically speaking, this means that ESOs will attend at provincially-regulated Ontario employers’ places of business without a complaint being filed, and without any warning, to conduct inspections of the businesses’ practices, policies, and records for compliance with the ESA.  In such cases, employers are required to co-operate with the inspection and to produce documents requested by the ESO.  In turn, ESOs have the power to issue compliance orders or orders to pay and, in some cases, to lay charges against the employer.

Employment standards investigations are time-consuming and may be costly for businesses, both in terms of the resources that must be devoted to the audit itself and, potentially, in rectifying ESA compliance issues and paying amounts owing under any orders issued. 

Employers should consider conducting an employment standards audit of their business to reduce the risk of a proactive inspection uncovering unanticipated liability and resulting in orders being issued against the employer.  For more information on auditing your workplace to ensure ESA compliance, please view our webcast at:
http://www.fmc-law.com/Publications/Webcast_EmploymentLabour_December2009_AnOfficerCalls.aspx

If you would like assistance with your employment standards audit or, if an ESO arrives for a proactive employment standards audit, please contact one of FMC’s employment and labour lawyers.

To review the Ministry of Labour’s Press Release, please see:
http://www.labour.gov.on.ca/english/news/2012/nr_proactiveinspections20120917.php

Employers faced with an Employment Standards Act complaint may air the employee’s dirty laundry, so to speak, in that proceeding without fearing a defamation lawsuit, an Ontario court decision suggests.

Justice E.M. Morgan of the Ontario Superior Court decided that allegations made by an employer to an Employment Standards Officer in response to an employee’s Employment Standards Act complaint were protected by “absolute privilege”, so that the employee’s defamation suit was dismissed.

The employee had filed a complaint with the Ontario Ministry of Labour claiming that the employer failed to pay public holiday pay and overtime pay.  The Employment Standards Officer ordered that the employer pay compensation, which the employer did.

The employee had then filed a defamation suit in the courts, claiming that allegations of fraud and dishonesty were made by the employer to the Employment Standards Officer during the ESA proceeding which were injurious to the employee’s emotional and psychological health.

Justice Morgan noted that statements made in the course of a proceeding in court or before a board or tribunal (including before an Employment Standards Officer), were absolutely privileged, meaning that those statements cannot be the basis for a defamation lawsuit.

Employers, when faced with a legal claim by an employee before the courts or a tribunal, may state their position – and the employee’s shortcomings – frankly and directly in that proceeding, without attracting liability for defamation.  Statements made outside such proceedings, however, may attract liability.

Satkunan v. Gnanatheepam et al., 2012 ONSC 4654 (CanLII)

Based on data collected from parents of 10,810 children in 2010 and 2011, Statistics Canada’s study reveals that 90% of Canadian children outside Quebec had working mothers who took some type of leave following the birth of their child.  On average, the leave lasted 44 weeks.  Only 26% of these children had working fathers who took leaves, with the average leave being 2.4 weeks.

The situation differed quite dramatically in Quebec, with almost 99% of working mothers taking some form of leave; on average, the leave lasted 48 weeks.  Fathers took leave in 76% of cases in Quebec.

83% of mothers outside Quebec took paid leave, and 21% reported some unpaid leave.  The average paid leave in such cases was 40 weeks, while the average unpaid leave was 4.5 weeks.  In Quebec, 97% of mothers took paid leave, with 21% reporting some unpaid leave.

Not surprisingly, a number of factors, including socio-economic, child and maternal health characteristics, and self-employment, were associated with whether mothers and fathers took leave and the length of the leaves.

To read the study in its entirety, please consult the July 2012 online issue of Canadian Social Trends, no. 94 (http://www.statcan.gc.ca/pub/11-008-x/2012002/article/11697-eng.pdf).

Une étude de Statistique Canada s’appuyant sur des données recueillies auprès de parents de 10 810 jeunes enfants en 2010 et en 2011 révèle que, dans le cas des enfants vivant hors Québec, 90 % des mères qui travaillaient ont déclaré avoir pris un congé sous une forme ou une autre après la naissance de leur enfant. La durée moyenne du congé était de 44 semaines. Seuls 26 % de ces enfants avaient des pères ayant déclaré avoir pris un congé, dont la durée moyenne était de 2,4 semaines.

La situation est considérablement différente au Québec, où environ 99 % des mères qui travaillaient avant la naissance de leur enfant ont déclaré avoir pris un congé sous une forme ou une autre, dont la durée moyenne était de 48 semaines, et que 76 % des pères ont déclaré avoir fait de même.

Plus des quatre cinquièmes (83 %) des mères hors Québec ont déclaré avoir pris un congé payé et un cinquième (21 %) avoir pris un congé non payé. La durée moyenne des congés payés était de 40 semaines, comparativement à 4,5 semaines pour les congés non payés. Au Québec, 97 % des mères ont déclaré avoir pris un congé payé et 21 % un congé non payé.

Évidemment, certains facteurs, notamment la situation socioéconomique, les caractéristiques liés à la santé de l’enfant ou de la mère ou le fait d’être une travailleuse ou un travailleur autonome, peuvent avoir une incidence sur la décision de prendre ou non un congé et sur la durée de celui-ci.

Pour lire l’étude dans son intégralité, veuillez consulter le numéro 94 (juillet 2012) du bulletin électronique Tendances sociales canadiennes (http://www.statcan.gc.ca/pub/11-008-x/11-008-x2012002-fra.htm).

L’article dont il est question dans le présent billet a été rédigé par Andrea Raso Amer et Tony Schweitzer.

Bien que le Canada et les États-Unis entretiennent d’étroites relations et que leur gouvernance et leurs lois présentent de nombreuses similarités, il existe entre les deux pays des différences importantes et distinctes, dont il faut tenir compte dans la conduite d’activités commerciales transfrontalières. La façon d’attirer, de gérer et de fidéliser les employés est notamment assez différente au Canada et toutes les entreprises qui songent à brasser des affaires au nord de la frontière devraient être informées de certains points très importants à prendre en considération.

FMC vous invite à lire un article traitant de différents sujets de façon approfondie, notamment les permis de travail, les membres de la famille qui accompagnent les travailleurs, les heures supplémentaires et les congés.

Pour lire l’article, veuillez cliquer ici (en anglais seulement).

This article was written by Andrea Raso Amer and Tony Schweitzer.

While Canada and the United States share very close bilateral ties, and there are many similarities in our governance and laws, there are also some very distinct and important differences that are relevant to cross-border business. One key difference exists in attracting, managing and retaining employees in Canada. Any company contemplating business north of the border should be made aware of these very significant considerations.

This article contains in-depth discussions on various topics including work permits, accompanying family members, overtime, and leaves of absence.

To read the full article, please click here.

As employers have long maintained, paid leaves that overlap with the purposes for which personal emergency leave is granted do count towards those personal emergency leave days.

Personal emergency leave was introduced to Ontario workplaces in September 2001 when the Employment Standards Act, 2000 came into force. Employees of employers with 50 or more employees are entitled to a total of 10 days of unpaid leave each calendar year because of a personal illness, injury or medical emergency; or the death, illness, injury, medical emergency or urgent matter concerning a prescribed family member. Many employers, of course, provide paid leaves for these same purposes such as sick pay, bereavement leave and personal days. Loss of earning benefits paid as a result of a workplace accident under the Workplace Safety and Insurance Act, 1997 also overlap. The question that immediately arose was whether personal emergency leave days were an additional entitlement to whatever an employer already provided by way of paid leave or whether the bank of 10 personal emergency leave days could be deducted whenever an employee used a paid leave for the same purpose.

From an employer’s standpoint, paid leaves are difficult enough to manage let alone 10 personal emergency leave days on top of this. For this reason, and with the assistance of the Ministry of Labour’s own policy, employers adopted the position that if an employee opts to use a paid leave then the employee has effectively designated the absence as a personal emergency leave day.

Communications, Energy and Paperworkers Union of Canada, Local 333 challenged this position and Ministry of Labour policy by referring to arbitration an employee’s grievance that his four paid bereavement leave days to which he was entitled under his collective agreement should not have been deducted from his bank of 10 unpaid emergency leave days. Arbitrator Marilyn Nairn disagreed and found that it was not permissible to add the statutory entitlement to the collective agreement entitlement. The Union applied for judicial review of the arbitration decision. The Divisional Court. has recently released its decision dismissing the Union’s application for judicial review. In doing so, the Court held that the Arbitrator’s decision was logical, considered and intelligible. It held that that it was a reasonable interpretation of the combined effect of the statutory entitlement and the collective agreement entitlement. Accordingly, Ontario employers may continue their practice of deducting paid leaves from the statutory bank of personal emergency leave days.

Communications v. IKO Industries, 2012 ONSC 2276 (CanLII).

Earlier today, the Ontario Court of Appeal released its highly anticipated trilogy of judgments in the high-profile overtime class action cases of Fulawka v. Bank of Nova Scotia, Fresco v. Canadian Imperial Bank of Commerce and McCracken v. Canadian National Railway Company.  Previously, the lower courts had certified the overtime class actions against the Bank of Nova Scotia and CN Railway but had refused to certify the class action against CIBC.

The three appeals dealt with the first-level “certification” issue of whether a class action was an appropriate process for resolving these overtime claims.

Ultimately, the Ontario Court of Appeal decided to allow the class actions against the Bank of Nova Scotia and CIBC to proceed, while refusing to certify the class action as against CN Railway.  In reaching these different outcomes, the Court drew a distinction between the alleged theory of liability for unpaid overtime advanced against the two banks (breach of a policy) and the theory advanced against CN Railway (misclassification of a group of employees as managers) in assessing whether or not there was a sufficient commonality of interest among the proposed class members to warrant the overtime claims proceeding as a class action.

In the Bank of Nova Scotia and CIBC decisions, both groups of employees alleged that the banks had implemented overtime policies that imposed more restrictive conditions on receiving overtime pay than those contained in the Canada Labour Code or as provided for under the express or implied terms of individual employment contracts.  In particular, the claimants alleged that the overtime policies implemented by the banks created institutional or systemic impediments to overtime pay claims.  The Court found that the terms of these overtime policies could support a conclusion before a common issues trial judge that all uncompensated overtime hours were required or permitted by the banks.

The Court recognized that, even if individual issues concerning each employee’s overtime entitlement (if any) would still remain after the common issues trial, there was sufficient commonality among class members in the CIBC and Bank of Nova Scotia cases that would allow elements of liability to be determined on a class-wide basis.  In the CIBC decision, for example, the Court wrote:

“The terms and conditions in CIBC’s overtime policies governing overtime compensation, and the accompanying standard forms that class members submit when requesting such compensation, apply to all class members regardless of their own particular job responsibilities or job titles.  To the extent that the policies and record-keeping systems of CIBC are alleged to fall short of CIBC’s duties to class members, or to constitute a breach of class members’ contracts of employment, these elements of liability can be determined on a class-wide basis and do not depend on individual findings of fact.”

In contrast, the action against CN Railway alleged that the company had misclassified a group of First Line Supervisors as managerial employees, thereby exempting those individuals from being eligible for overtime pay under the Canada Labour Code.  The Court held that, for the class action to proceed, the employees had to establish that the job functions and duties of the various employees were sufficiently similar so that the “misclassification” issue could be resolved without considering the individual circumstances of class members.

Instead, the Court concluded that there was a wide range of job functions among First Line Supervisors at CN Railway, depending on which job title they held, where they worked, and whether the class members worked alongside other First Line Supervisors or higher-level managers.  The Court also found that the use of the term “First Line Supervisors” to describe the class created a “false impression of commonality” given that class members had different job responsibilities, a variety of job titles, and worked in a variety of workplaces with different reporting structures and different sizes of workforce.  In short, the Court decided that a trial judge could make no determination about whether or not a First Line Supervisor was in fact a managerial employee or a non-managerial employee without resorting to the evidence of individual employees in the proposed class, as opposed to resolving that issue once for the entire class.  As a result, there was not sufficient commonality among class members to permit the class action to proceed.

Employers should review their overtime policies in light of the court’s decisions, which show the importance of the language used in those policies.

A link to each of the decisions in the trilogy is posted below:

•  Fulawka v. Bank of Nova Scotia – http://www.ontariocourts.ca/decisions/2012/2012ONCA0443.pdf

•  Fresco v. CIBC – http://www.ontariocourts.ca/decisions/2012/2012ONCA0444.pdf

•  McCracken v. CN Railway – http://www.ontariocourts.ca/decisions/2012/2012ONCA0445.pdf

From June until the end of August, 2012, the Ontario Ministry of Labour will be undertaking proactive inspections of temporary help agencies across multiple sectors.  Approximately 735,000 Ontarians work in temporary jobs, arranged through nearly 1,000 temporary help agencies.  The purpose of the blitz is to ensure that those agencies are in compliance with the 2009 Employment Standards Amendment Act (Temporary Help Agencies).

Among other things, the Ministry will be checking for compliance with:

-  displaying employment standards information in the workplace

-  issuing complete wage statements

-  rules related to hours of work, eating periods and overtime pay

-  minimum wage

-  public holiday rules

-  vacation pay and vacation time

-  the prohibition against agencies charging illegal fees to employees

Further information can be found at the following link:  http://news.ontario.ca/mol/en/2012/06/protecting-vulnerable-workers.html

Ontario’s Employment Standards Act, 2000 provides that employees are entitled to overtime pay for all hours worked in excess of 44 hours in a week. However, there are certain exemptions to this entitlement – one of which applies to employees whose work is “supervisory or managerial in character and who may perform non-supervisory or non-managerial tasks on an irregular or exceptional basis”.

Unsurprisingly, there have been a number of employment standards decisions over the years in which an employee has advanced a claim for overtime and the employer has defended the claim on the basis that the employee is a supervisor or manager and therefore exempt. A number of decisions involving employees who did not supervise or manage employees have found that those employees were not “supervisory”. Occasionally, however, employees who supervise or manage processes – but not employees – are found to be true “supervisors” and/or “managers” such that they are exempt from overtime pay.

The recent decision in Levert Personnel Resources Inc. v. Steven McNeil and Director of Employment Standards provides one such example. In this case, the Ontario Labour Relations Board was tasked with determining whether Steven McNeil, an Account Manager for Levert Personnel Resources Inc., a personnel resources company, was exempt from overtime pay. Mr. McNeil was the primary contact for Levert’s clients in the mining sector. He had total responsibility for negotiating and signing contracts with these clients on Levert’s behalf, and was specifically tasked with managing the clients’ personnel requirements. Although Mr. McNeil did not recruit, hire or supervise the work of employees he placed at client sites, he was required to ensure that the terms of the contract which he had signed with the clients were met. In order to do this, Mr. McNeil would visit client sites and review the trade certificates of Levert’s employees. If an employee did not have the requisite certification, Mr. McNeil would dismiss the employee from the client work site. Mr. McNeil also worked to prepare annual forecasts and strategized and executed sales plans, all of which had a direct impact on the profit margins and financial operations of Levert. Based on this evidence, and despite the fact that Mr. McNeil did not manage or supervise employees directly, the Ontario Labour Relations Board concluded that Mr. McNeil’s work was supervisory and managerial in character.

As a result of this case and others that have been decided along similar lines, it is important for employers to avoid automatically concluding that employees who perform supervisory or managerial functions in relation to machines or processes, rather than in relation to employees, are entitled to overtime pay.

See decisions here: http://www.canlii.org/en/on/onlrb/doc/2011/2011canlii63520/2011canlii63520.pdf, and here: http://www.canlii.org/en/on/onlrb/doc/2012/2012canlii4267/2012canlii4267.pdf

Bill 53, or the Family Day Act passed its third reading and received Royal Assent on May 31, 2012. The Family Day Act creates a new statutory holiday for British Columbia employees. On May 28, the Government of British Columbia announced that Family Day will take place on the 2nd Monday of February in each year starting 2013.

The general minimum wage in British Columbia will be increasing from $9.50 per hour to $10.25 per hour on May 1, 2012.

The Ontario Ministry of Labour is publishing the names of employers convicted of violating the Ontario Employment Standards Act, however minor the offence or the fine.

Almost all of the employers fined in November or December 2011 were convicted of “Part I Tickets” (not the more serious and high-stakes prosecutions under Part III of the Provincial Offences Act) and were fined $360.00.

Some of the common violations for which employers were convicted and fined, were:

-failing to pay overtime pay

-requiring or permitting employees to work in excess of the maximum hours of work

-failing to give a wage statement when required

-failing to post the Employment Standards Act poster

The MOL notes that the number of prosecutions under the Employment Standards Act has increased from 5 in 2003 to 345 in 2007 and 480 in 2008 (the last year for which the MOL publishes these statistics on its website).

While in the past the MOL took a softer approach to encouraging compliance with the Employment Standards Act, today the MOL is much more likely to consider laying charges against employers.

See http://www.labour.gov.on.ca/english/es/pubs/enforcement/convictions.php