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Hot topics and recent developments in labour and employment law

Date and time: November 26, 2019

12 p.m. – 1 p.m. ET
10 a.m. – 11 a.m. MT
9 a.m. – 10 a.m. PT

This session is only available via webinar

LSBC: This session is registered for 1 hour of CPD credit with the Law Society of British Columbia.

LSO: This program is eligible for up to 1 Substantive Hour with the Law Society of Ontario.

Join us for a complimentary 1-hour webinar where we will highlight the changes you need to know about and identify the trends that we expect to affect your workplace in 2019.
Topics will include:

  • Managing Harassment Investigations under the OHSA: Requirements and Pitfalls
  • A Case Law Update on Sexual Harassment
  • Creating Enforceable Contracts: Consideration in the Employment Context

Please confirm your attendance by Thursday, November 21.

Speakers

Questions

Please contact Carla Vasquez, Events Manager, at carla.vasquez@dentons.com or +1 416 361 2377.

Register now

Hot topics and recent developments in labour and employment law

Dentons’ Employment and Labour Fall Seminar

Date and time:
October 25, 2019, 8:30 AM EDT to October 25, 2019, 1:00 PM EDT

Location: 
Dentons Canada LLP77 King Street West
5th Floor 
Toronto, Ontario 
Canada

Dentons’ Labour, Employment and Pensions Group will be hosting a half-day seminar on emerging workplace and human resources issues on Friday, October 25, 2019. The following topics will be discussed:

HRPA accreditation

This program has been approved for 3 (CPD) hours under Section A of the Continuing professional development (CPD) Log of the Human Resource Professionals Association (HRPA).

CPD accreditation 

This program is eligible for 2 hours of substantive content required by the Law Society of Ontario.

Agenda

  • 8:30 a.m. : Registration and breakfast
  • 8:50 a.m. – 9:55 a.m. : Opening remarks and guest speaker
  • 10:10 a.m. – 12:40 p.m. : Breakout sessions
  • 12:40 p.m. : Lunch and networking

Questions

Please contact Melis Dimitriou, Client Development Coordinator, Events, at melis.dimitriou@dentons.com or +1 416 361 2336.

Dentons Canada LLP is committed to accessibility for persons with disabilities. Please contact us at toronto.events@dentons.com in advance of the event if you have any particular accommodation requirements. We will work with you to make appropriate arrangements.

Dentons’ Employment and Labour Fall Seminar

Hot topics and recent developments in labour and employment law

1 p.m. – 2 p.m. ET
11 a.m. – 12 p.m. MT
10 a.m. – 11 a.m. PT

This session is only available via webinar

CPD/CLE Accreditation

LSBC: This session is registered for 1 hour of CPD credit with the Law Society of British Columbia.

LSO: This program is eligible for up to 1 Substantive Hour with the Law Society of Ontario.

Join us for a complimentary 1-hour webinar where we will highlight the changes you need to know about and identify the trends that we expect to affect your workplace in 2019.

Topics will include:

  • Update on Quebec’s new draft regulation concerning personnel placement agencies and temporary foreign worker recruitment agencies
  • The latest on workplace harassment and investigations
  • Drug and alcohol testing checklist for employers

Speakers

Andy Pushalik, Partner, Toronto

April Kosten, Partner, Calgary

Ryan Martin, Associate, Montréal

Questions

Please contact Melis Dimitriou, Client Development Coordinator, Events, at melis.dimitriou@dentons.com or +1 416 361 2336.

Register now

Hot topics and recent developments in labour and employment law

Pay Transparency is Back (Maybe)

As you will recall, the Pay Transparency Act, 2018 was passed by the previous Ontario government and was scheduled to come into effect on January 1, 2019. In fall 2018, the current administration postponed the effective date indefinitely, leading many to speculate that the legislation would not come into force.

However, we may yet see pay transparency legislation in Ontario. In February 2019, the Ministry of Labour opened public consultations concerning the reporting requirements of the Pay Transparency Act. These consultations closed on April 5, 2019.

As a reminder, the Pay Transparency Act includes the following key concepts:

Employers will not be allowed to ask for compensation history from a job applicant or through an agent.

Employers will be required to include the expected compensation or range for a position in all publicly advertised job postings.

Reprisals by employers will be prohibited against employees who disclose, inquire about or discuss compensation.

Employers with 100 or more employees would be required (this would be phased in over time) to submit and post a pay transparency report annually, which includes information about the employer’s workforce and differences in compensation between male and female employees.

The consultation paper asks for submissions on the following issues:

Because hourly wage gaps alone would not capture all aspects of compensation differences between males and females, what additional wage gap calculation should be required in order to create a more accurate picture – for example, bonuses, overtime pay, commissions?

What reporting period do employers prefer to use to calculate average and median hourly gender wage gaps – for example, calendar year, a prescribed period such as a pay period or specific week, fiscal year, etc.?

Do employers with 100 or more employees currently have all the information they would need to calculate the organization’s median and hourly gender wage gaps for a specified period?

How much do employers with 100 or more employees estimate the cost of pay transparency reporting will be with respect to IT and software costs, personnel costs and other costs?

How many hours do employers with 100 or more employees anticipate that pay transparency reporting will take in total?

We will update our readers once the government issues the results of the consultation process.

Pay Transparency is Back (Maybe)

Accessibility Laws in Canada – Status @ January 1, 2019

As of January 1, 2019, the federal government and the provinces of Ontario, Manitoba and Nova Scotia are at various stages of introducing accessibility laws. Canada is a signatory to the United Nations Convention on the Rights of Persons with Disabilities and as such has agreed to take appropriate measures to achieve accessibility and to develop and monitor minimum accessibility standards. Here is a snapshot of the current situation across the country.

Ontario

The Accessibility for Ontarians with Disabilities Act (AODA) is fully operational and, regardless of the size of your organization, as long as you have one or more employees in Ontario, your organization should have fulfilled the general accessibility requirements, complied with the accessible customer service standard, the employment standard, the design of public space standard and information and communication requirements (with the exception of websites).  This blog post does not address the education and public transportation sectors.

Ongoing obligations include training of staff on the Human Rights Code disability provisions and the AODA whenever new staff are hired or your policies change. Employers with 20 or more employees in Ontario must also report compliance on the Service Ontario website every 3 years and employers with 50 or more employees must review and update their multi-year accessibility plan at least every 5 years.  Monetary penalties have already been issued against certain organizations for a failure to report their on-line compliance.

Websites and content published after January 1, 2012 will need to meet the WCAG 2.0 Level AA guidelines (with a few carveouts) by January 1, 2021, except where it is not technically feasible, your organization does not control the information, the content is unconvertible or the required technology is not readily available.  These guidelines have been developed by the World Wide Web Consortium and include “success criteria” that cover matters such as meaningful sequences, separation of foreground information from background, functionality by keyboard, avoidance of flashing visuals, providing non-text content in text format and other criteria to address which make navigation and use of websites more accessible for those with a variety of developmental, physical, intellectual, mental, sensory, visual and hearing disabilities.

Manitoba

The first standard under The Accessibility for Manitobans Act (AMA) applies as of November 1, 2018 to private sector employers with one or more employees in Manitoba. The Customer Service Standard Regulation applies to such organizations if they provide goods or services directly to the public or to another organization in Manitoba. Fortunately, the Customer Service Standard Regulation is very similar to the accessible customer service standard under the AODA and minimal changes will be required to bring your standard into compliance if you already have an Ontario customer service policy and training program. Employers with 20 or more employees in Manitoba must also document training of staff on the AMA and the Manitoba Human Rights Code. Monitoring of compliance on the Customer Service Standard is expected to start in 2019 or 2020.

Standards on employment and information and communications have been drafted.  Upcoming standards will cover the built environment and public transportation and infrastructure. Apparently the education standard will be the final standard to be developed.

Nova Scotia

The Accessibility Act  was passed in 2017. Standards currently under development cover education and the built environment. The plan is to develop other standards at the rate of one per year starting in 2021 to cover: delivery of goods and services, information and communication, public transportation and infrastructure and employment.

Federal Government

The federal government introduced Bill C-81, An Act to ensure a barrier-free Canada, or the “Accessible Canada Act” (ACA) on June 20, 2018. The Bill passed third reading in the House of Commons as of November 27, 2018. There have been many amendments and much discussion. The standing committee reported back with 74 amendments. The Bill was in first reading in the Senate on November 29, 2018.

Note that the ACA does not make Canada accessible and does not require the provinces to take any legislative steps. Instead, the ACA will required organizations governed by federal law to implement accessibility. Such employers include those in telecommunications, broadcasting, interprovincial transportation, railways, shipping and banking. Such employers will need to develop an accessibility plan, which needs to be updated every 3 years, a feedback process, and to publish progress reports.

The enforcement mechanisms go further than those of the AODA. Enforcement includes inspections, production orders, compliance orders, monetary penalties and compliance agreements.  There is also a complaint process to the Accessibility Commissioner, who can order compensation for lost wages, up to $20,000 for pain and suffering and up to $20,000 in case of a wilful or reckless practice.  The CRTC will be responsible for compliance and enforcement in the broadcasting and telecom sectors, while the Canadian Transportation Agency will be responsible for the transportation sector.

Stay Tuned

We will issue further updates as further standards are developed under the provincial accessibility laws and when the federal Accessible Canada Act is passed.

Accessibility Laws in Canada – Status @ January 1, 2019

More Legislative Changes Coming with Bill 66

Bill 66, Restoring Ontario’s Competitiveness Act, 2018 was recently introduced in the Ontario Legislature (“Bill 66”).  Bill 66—as the name suggests—aims to make Ontario more competitive by reducing regulatory burden and giving businesses more flexibility.

Bill 66 proposes to make the following changes to existing legislation:

  • Excess Hours of Work and Overtime Averaging Applications: Bill 66 proposes to amend the Employment Standards Act, 2000 (“ESA”) to no longer require approval from the Director of Employment Standards of an application for excess hours of work and overtime averaging.

Employers would still be required to enter into written agreements with employees to have employees work excess hours and to average overtime hours worked.  Additionally, employers can only average an employee’s hours of work for the purposes of calculating overtime pay over a maximum of four (4) weeks.

  • ESA Poster: Bill 66 proposes to remove the requirement for employers to provide both the ESA poster to employees and post it in the workplace. Employers will only have to provide the most recent version of the ESA poster to the employees.
  • “Non-Construction Employers”: Public bodies, including municipalities, school boards, hospitals, colleges and universities, will be deemed “non-construction employers” through an amendment to the Labour Relations Act, 1995 (“LRA”).

This proposed amendment to the LRA will help to prevent certain broader public sector entities from becoming bound to collective agreements for the construction industry, when these entities are not actually in the construction business.

  • Merging Pension Plans: The Pension Benefits Act will be amended to make it easier for private-sector employers to merge single-employer pension plans with jointly sponsored pension plans.
  • Exemption from Guardrail Requirements for the Auto Sector: For assembly lines, there will be a new, targeted exemption from guardrail requirements for a conveyor and raised platform.
  • Workplace Hazardous Materials Information System (WHMIS) regulation: This proposed amendment to WHMIS regulations would allow new labels to be placed on old containers, preventing the need to dispose of chemicals with old labels. By removing the need to re-purchase newly labeled chemicals unnecessarily, this would result in saving Ontario universities an estimated $60.2 million to $107.9 million.

Bill 66 was introduced and carried first reading on December 6, 2018.  As Bill 66 progresses through the legislature, the proposed amendments may change and new amendments may be put forth.  We will continue to keep you updated.

The author would like to thank Jonathan Meyer for his assistance with this blog.

More Legislative Changes Coming with Bill 66

WSIB’s New Rate Framework For Employers

Following policy consultations that took place from August 14, 2017 to January 15, 2018, the Workplace Safety and Insurance Board (WSIB or the Board) announced its new rate framework for employers. This framework will replace current WSIB policies on classification structure, rate setting, and retroactive experience rating on January 1, 2020. As such, employers should take note that there may be a change to how their business is classified and how premium rates are set as of January 1, 2020.

The new framework introduces six (6) core policies to replace the current thirteen (13) that make up the present system.  Notably, the new Employer Level Premium Rate Setting policy replaces current policies on the Merit Adjustment Premium Program, the Construction Industry Plan, and the New Experimental Experience Rating Plan (NEER). In preparing for the new system, employers should note that the severity of workplace accidents (as affected by the length of time that injured employees spend away from work) will become increasingly important for setting premium rates.

According to the Board, the new framework will be simpler and much easier for employers to understand. Additionally, the Board states that the new framework promises predictability and a more accurate reflection of the level of risk that individual employers and industries bring to the system. Under the new model, the WSIB limits an employer’s potential rate increase to a maximum of three risk bands per year. Employers will also be able to access their projected premium rates for future years. Additionally, the rate setting window used to set premium rates has been extended from three (3) or four (4) years to six (6) years. This change will reduce the impact that a single year has on an employer’s premium rate.

Every business registered with the WSIB should receive a letter about premium rates under the new framework later this year. More information on the upcoming rate framework changes can be found here.

Also co-authored by Jessica Hardy-Henry.

WSIB’s New Rate Framework For Employers

Compliance Reminder – New Statutory Leaves in Ontario

Employers should be aware that effective as of October 29, 2014, statutory leaves of absence in Ontario under the Employment Standards Act, 2000 (the “ESA”) will be expanded to include the new “family caregiver leave”, “critically ill child care leave” and “crime-related death and child disappearance leave”.  These leaves of absence are in addition to the current Ontario “organ donor leave”, “family medical leave”, “personal emergency leave”, “pregnancy leave”, “parental leave”, “reservist leave” and “emergency leave – declared emergencies”.  Details of the new leaves of absence are as follows:

1.  Family caregiver leave – Up to 8 weeks per year can be taken in order to take care of a family member with a serious medical condition.

2.  Critically ill child care leave – Up to 37 weeks per year can be taken in order to care for a critically ill child under the age of 18.

3.  Crime-related child death and disappearance leave – Up to 52 weeks can be taken if an employee’s child disappears and it is probable that the child disappeared as the result of a crime.  If a child dies as a result of the crime, the leave period is increased to up to 104 weeks.

Each of these leaves of absence are unpaid, and under each leave time off can be taken by the employee in bits and pieces rather than altogether.  Employees using the critically ill child care leave may be eligible for Employment Insurance benefits for a portion of the leave; however guidance should be sought from Service Canada, as the leave provisions do not match up precisely with EI benefit eligibility.

As a reminder, the current statutory personal leaves of absence which are already in place in Ontario are the following:

(i)  Personal emergency leave – Up to 10 days of leave per year to deal with a personal emergency, illness, injury or urgent matter for oneself or a specified family member.  Personal emergency leave is only required in workplaces with 50 or more employees in Ontario.

(ii)  Family Medical Leave – Up to 8 weeks of leave per year to provide care or support to certain family members for whom a qualified health practitioner has issued a certificate stating that the family member has a serious illness with a significant risk of death occurring within a period of 26 weeks.

(iii)  Organ Donor Leave – Up to 13 weeks of leave per year for those employees who have undergone surgery for the purpose of organ donation.

(iv)  Reservist Leave – Time off for reservists to assist with international and domestic emergencies, for the period of time required to assist with the operation.

In addition to the above leaves, all employers should be aware of their obligations to provide pregnancy and parental leave under the ESA.

Employers should review their employee handbooks prior to October 29th in order to determine how the new leaves fit with existing statutory and non-statutory leave entitlements.

Compliance Reminder – New Statutory Leaves in Ontario

20-Day Jail Sentence for Employee who Released Employer’s Confidential Information in Breach of Court Order

A former employee received a 20-day jail sentence after she flagrantly disregarded a court order by disclosing the plaintiffs’ confidential business methods and disparaging their business reputation.

Background

In July 2013, Ceridian entered into an agreement with Pendylum Inc. (“Pendylum”) to assist in the delivery of services to Ceridian’s customers. Under the terms of its agreement with Pendylum, Ceridian required that all of Pendylum’s subcontractors, including the Defendant, submit to a background check.  The Defendant refused.  As a result, Pendylum terminated the Defendant’s contract.

Following her dismissal, the Defendant embarked on an email campaign with Pendylum and Ceridian that culminated in threats and conduct akin to extortion.  In November 2013, the Defendant sent a letter to Ceridian advising that unless she received the sum of $23.2 million, she would disclose confidential information relating to the Plaintiffs’ business and their customers.  The Defendant subsequently reduced her demand to $500,000.00. On April 24, 2014, the Defendant sent another letter to Ceridian, in which she threatened to circulate a “press release” on May 12, 2014 containing the Plaintiff’s confidential information to “every press agency and HR and payroll agency across Canada and the U.S.”.  By letter dated May 8, 2014, the Defendant repeated her threat of disclosing her “press release” on May 12, 2014.

In response to the Defendant’s threats, the Plaintiffs brought an ex parte motion for, amongst other things, an interim injunction. The Court granted a five-day interim injunction prohibiting the Defendant from publishing the press release. Although the Defendant had knowledge of the court order, she disregarded the order and proceeded to issue the press release, which was widely disseminated on the internet by numerous news outlets.

The Finding of Contempt

The Court concluded that the Defendant knowingly and deliberately breached the court order by:

  1. releasing the enjoined document to press agencies;
  2. making absolutely no effort to stop the public release despite the pleas and offers of assistance from the Plaintiffs; and
  3. failing to provide the Plaintiffs with the list of persons to whom she had disclosed the confidential information.

The Court noted that if the Defendant disagreed with the court order, then the proper route would have been for her to challenge it by appeal or by another proceeding before the courts, not by ignoring its terms.

The Sentence

When considering the appropriate sentence for the Defendant’s non-compliance, the Judge commented that in his nine years as a judge he had “never encountered a more defiant or less remorseful Defendant”.  The Court found that the Defendant was deserving of significant sanction for, inter alia, the following reasons:

  • The Defendant knowingly and deliberately breached the court order, which can be evidenced by the emails that she exchanged with the Plaintiffs’ counsel in which she wrote “the court order has no effect” and “[the judge] cannot violate my right to free speech.”
  • The Defendant took no steps to retract the press release even after she was aware of the court order.
  • The Defendant continued to attempt to extort a settlement even after she had knowledge of the court order.
  • The Defendant continued to refuse to provide a list of the persons to whom the press release/confidential information had been disclosed.
  • There was uncontroverted evidence that the Plaintiffs may sustain significant harm as a result of the press release, which may have an impact on the Ceridian’s business and position in a competitive market.

Based on the foregoing, the Court found the Defendant’s breach of the order to be serious and continuing.  Moreover, the Court found no mitigating factors – the Defendant did not show remorse; she did not apologize; she made no attempt to purge the contempt; she made no effort to stop the press release when she had days to do so; and she refused to provide the names of persons to whom the confidential information was disclosed.  Furthermore, at the sentencing hearing she continued to argue that: this is nothing more than a defamation case; the order should never have been issued; the order was not breached; and that the Court and counsel have “colluded.”

The Court determined that a fine was an inappropriate sanction on the facts of this case.  The Defendant was a single mother and the costs awards to date, totaling approximately $27,500, had not been paid and the Court accepted would probably never be paid.

Typically, incarceration for civil contempt is a sanction of last resort.  However, the Court held that where the “the administration of justice has been flouted or ignored in public, imprisonment may be necessary for the court to send a clear a message that society as a whole disapproves of anyone who deliberately disobeys a court order”. The Defendant was sentenced 20 days in jail, to be served intermittently over five weekends so as not to jeopardize her employment income as the sole provider for her family.

Ceridian Canada Ltd. v. Azeezodeen, 2014 ONSC 4162 (CanLII)

20-Day Jail Sentence for Employee who Released Employer’s Confidential Information in Breach of Court Order

Top Ten Tips for the Workplace

Every now and then, it’s worth it for even the most seasoned HR professional to receive a reminder about best practices in the workplace.  Ensuring compliance with our Top Ten Tips list below will help to keep your workplace running smoothly.

1.  Ensure that all  employees sign employment agreements that clarify potentially contentious issues up front, such as entitlements on termination.

2.  If your workplace has any concerns about protecting company confidential information or intellectual property, ensure that employees also sign some form of Confidential Information and Intellectual Property Agreement (“IP Agreement”).

3.  Remember that employment agreements and IP Agreements must be signed before an employee’s start date.  If that doesn’t happen, then the employee must be provided with some sort of “consideration” for signing (eg. a signing bonus; a promotion and salary increase), and the consideration should be specifically referenced in the agreement(s).

4.  Remember that the law is ever-changing:  a good employment agreement template one year will not necessarily be legally compliant the next year.  An annual legal review of your employment agreement templates will provide a significant cost savings to your business in the long run.

5.  If it is important to your business that restrictive covenants be entered into, ensure that non-competition covenants are not used where non-solicitation and confidentiality covenants would suffice to protect the company.  In addition, ensure that the covenants are sufficiently narrowly drafted in terms of scope, duration and jurisdiction so that they can be upheld by the courts.

6.  Provide employees with at least several days to consider any employment agreements that they are being asked to sign, so that they may obtain legal advice if they wish.

7.  Ensure that your workplace is up-to-date and compliant with all of its statutory obligations.  In Ontario for example, that includes ensuring that all employees have undertaken mandatory Workers and/or Supervisors Health & Safety Awareness Training, ensuring compliance with the Access to Ontarians with Disabilities Act (AODA), ensuring compliance with the Pay Equity Act if applicable, and ensuring that your workplace has posted all required Employment Standards Act (2000) posters and all required Occupational Health & Safety Act posters and policies.

8.  In the event of employee disability issues, consider obtaining legal advice to help you to properly assess and monitor the situation, so that both your workplace and the employee are protected and treated appropriately.

9.  In the event that an employee must be terminated, ensure that he/she is provided with reasonable notice in accordance with the applicable statute, any applicable employment agreement, or the common law (except in the case of a just cause termination).  Do not seek a release unless the employee has been offered something more than the minimum statutory entitlements, and if the employee refuses the offer, provide all minimum statutory amounts even in the absence of a release.  Ensure that benefits and vacation pay continue to accrue through the statutory notice period, and ensure that the Record of Employment is properly completed and submitted in a timely manner.

10.  Don’t hesitate to seek legal advice.  Oftentimes, the biggest problems can be made much smaller if legal counsel is contacted before action is taken.

 

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Top Ten Tips for the Workplace