Canada Labour Code Amendments

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You may be aware that just a couple of months ago, specifically on June 22, 2017, Bill C-44, the Budget Implementation Act, 2017, No.1 received Royal Assent.

This Act makes a number of changes to the Canada Labour Code (the “Code”) that will impact federally regulated employers, both unionized and non-unionized.

Please note that a date has not yet been set for when these changes will become law.

A ‘GENERAL GUIDELINE’ TO THE PROPOSED KEY AMENDMENTS:

Administrative Monetary Penalties (Added to the Code)

  • Employers can now be penalized for up to and including $250,000 under this section, and any officer, director, agent, or any other person with managerial or supervisory roles can be held liable for the penalty.
  • The specific Code provisions to which these penalties apply, and therefore the specific penalties will be identified in future Regulations.
  • The deadline for issuing a Notice of Violation is 2 years from the day on which the subject-matter of the violation arose.

Complaints Relating to Reprisals (Added to the Code)

  • Employees will be able to file a complaint with the Canada Industrial Relations Board (the “CIRB”) if they believe that the employer has taken reprisals against them for making a complaint pursuant to Part III of the Code, providing information to the Minister, the CIRB, or an inspector in exercising their duties under Part III of the Code, OR testifying in a proceeding or inquiry pursuant to Part III of the Code.
  • Such reprisals include, among other things: dismissing, suspending, laying off or demoting the employee, or imposing a monetary burden or penalty on the employee.
  • The time period for filing a complaint of retaliation is 90 days.

Inspector Orders

  • The authority of inspectors has been expanded. Inspectors will now issue compliance orders if they find an employer has not complied with Code provisions on standard hours, wages, vacations, and holidays.

Internal Audit

  • The Minister of Labour could order an employer to conduct an internal audit of its books, payrolls, and other records to determine whether the employer is in compliance with the Code provisions on standard hours, wages, vacations, and holidays.
  • The Minister may order the audit report to contain any data that the Minister deems appropriate.
  • Once the audit is complete, employers must submit the audit report to the Minister.

Unjust Dismissal

  • Unjust dismissal complaints that are not settled will now be referred to the CIRB, instead of an adjudicator for determination.

Unpaid Leaves of Absence:

Employees with a Newborn or Adopted Child

  • Female employees will be permitted to begin their maternity leave up to 13 weeks before their due date, a 2week increase from the current 11 weeks.
  • Employees will be entitled to take an unpaid leave of absence of up to 63 weeks to care for newborn or adopted children, a big jump from the current 37 weeks.
  • The combined total of maternity and parental leave that one or two employees can take for the same birth or adoption will increase to 78 weeks, a considerable increase from the current 52 weeks.
  • The combined total of parental leave that two employees can take for the same birth or adoption will increase to 63 weeks from the current 37 weeks.

Employees with a Critically Ill Child or Family Member

  • The definition of those eligible to take a leave of absence to care for a critically ill child will be expanded beyond a parent to a family member of a critically ill child. The eligibility period (6 months of continuous employment) and length of absence (37 weeks) will remain the same.
  • Employees who have completed 6 months of continuous employment will be eligible for an unpaid leave of absence of up to 17 weeks to care for or support a critically ill adult family member.

Unpaid Wages Recovery

  • The period for recovering unpaid wages will be extended from 12 to 24 months.

Again, please keep in mind that a date has not yet been set for when these changes will become law.

Supporting Article Research Sources: Mondaq.com, Lawson Lundell LLP

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Canada: Candidate Background Check Guidelines by Province

As we know, background screenings of job candidates are standard operating procedures (‘SOP’) of any employer’s recruitment process, helping to identify the best-qualified candidates, while managing potential risks related to a poor hiring decision.

There are many background checks that are commonly permissible in Canada, and the type of checks an employer may consider running depend on the nature of the position for which the candidate is being considered. The most widely used are those that relate to the academic, employment, criminal, and credit history of candidates.

Employers are of course eager to learn as much about a candidate as is possible, however, they must tread most cautiously. An improperly conducted background check – or a properly conducted one where data obtained is improperly used or even disclosed – will expose an employer to liability. This liability may cost an employer an inordinate amount in terms of both cost and professional reputation for such carelessness.

It is therefore crucial, that any background check is conducted in accordance with applicable provincial laws. Federally regulated employers must guarantee compliance with federal law. Both privacy and human rights legislation, in relevance to provincial law, exists at the federal level as well.

Human rights legislation exists in each of the Canadian jurisdictions we are addressing, and to the extent that an employer obtaining information related to ‘protected grounds’, cannot consider this information to be a factor in the ultimate hiring decision.

What must be kept in mind here is that privacy statutes and obligations differ among Canadian provinces when it involves personal employee information. Both impose important and necessary limitations on background checking with respect to what checks are conducted, and how the information collected may be legally used.

Fortunately for us, Blake Cassels and Mondaq have kindly provided this handy interactive map revealing the notable features in each province regarding privacy and human rights as they relate to this article.

For your convenience, I have provided the notable features information for ‘British Columbia’ as follows:

An employer may, without a candidate’s consent, collect personal information, IF the collection is for the “purposes of establishing an employment relationship.” However, before doing so, the employer must notify the candidate. Human rights legislation prohibits an employer from refusing to hire a candidate on the grounds that he or she was convicted of a criminal or summary conviction offence if that offence is “unrelated” to the employment.

 

Supporting Article Research Sources: Mondaq, Blake, Cassels & Graydon LLP

Alberta: Upcoming Workplace Laws Overhaul (Part 2 of 2)

…Continued from Alberta: Upcoming Workplace Laws Overhaul (Part 1 of 2)

The second and last part of this article focuses on the Labour Relations Code’ impending changes.

LABOUR RELATIONS CODE

Perhaps unsurprisingly, the areas of the Labour Code where the government is contemplating change is geared to enhancing union powers and increasing union involvement in Alberta. Also, any changes are likely to lead to a more robust Alberta Labour Relations Board, in concert with broader legislative changes that will impact all unionized workplaces.

In particular, the government is considering whether to:

  • Mandate a “Rand formula” in collective agreements, which involves the obligatory payment of union dues regardless of a worker’s status (i.e., workers would no longer be able to opt-out of a union and avoid paying union dues where they benefit from the collective agreement);
  • Change the Labour Code’s definition of “employer” and “employee”, which could bind more successor employers to collective agreements;
  • Give employees greater freedom in choosing, changing, or cancelling union representation (i.e., the introduction of a “card check” system);
  • Make certain unfair labour practice allegations are subject to a reverse onus provision, thereby putting the burden on the employer to contest an employee’s accusation;
  • Broaden the Board’s mandate to adjudicate a wider range of workplace disputes;
  • Augment the Board’s power, procedures, and remedial options; and
  • Undertake a general review of the Labour Code to see where Alberta’s labour laws depart from the Canadian mainstream (in a way which the government determines is “without benefit”).

CONCLUSION

Given that the legislation is due for an update, and the NDP’ orientation towards improved rights for workers and unions, it seems likely that the changes to the Employment Standards and the Labour Code can occur throughout this term of the NDP’s mandate.

The government says these changes are necessary to offer a “family-friendly workplace”. What remains unclear, though, is the extent to which these changes can co-exist with a “business-friendly workplace” since many of the proposed changes tip heavily for employees and unions, while Alberta’s economy remains in a fragile state.

 

Article Research Sources: Blake, Cassels & Graydon LLP, Mondaq

Alberta: Upcoming Workplace Laws Overhaul (Part 1 of 2)

Alberta’s NDP Government to shake up the province’s workplace legislation.

The Employment Standards Code (Employment Standards) and the Labour Relations Code (Labour Code) will be the subject of a brief public consultation (closing April 18, 2017) before the government assumes its review, and rolls out the significant primary changes to Alberta’s workplace laws not seen in decades.

As a matter of interest, Alberta’s workplace laws have remained the same for close to 30 years, while apparently provincial governments elsewhere in Canada have responded more quickly and readily to the changing dynamics of what the face of a modern workforce could, or should be.

Employment Standards and the Labour Code govern everything with respect to the employment relationship in Alberta’s workplaces (outside of federally regulated firms, and in addition to human rights and privacy legislation). The Labour Code regulates union work, and Employment Standards covers the non-union labour market.

The government says the forthcoming changes to Alberta’s workplace laws are actually “modest” and “not a full-scale review“. Still, many employers are most concerned about the consequences, particularly given the NDP’s policies for extending workers’ benefits, in addition to its long-standing union ties.

EMPLOYMENT STANDARDS

Employment Standards sets the minimum standards to which employers must adhere, including standards for hours of work and overtime requirements, vacation, maternity and paternity leave, general holidays and termination.

The government has not specified the precise changes it intends to make to Employment Standards. However, based upon a review of the government’s online consultation, employers may see the introduction of all, or any, of the following:

  • An increase in protected leaves (i.e., maternity, parental and compassionate care) and a reduction of employee tenure to realize eligibility for such leaves;
  • The creation of new unpaid protected leaves for personal short-term illness or injury, personal emergencies, and family responsibilities;
  • Changes to align protected leaves with the federal employment insurance program;
  • An increase in the banked overtime rate from 1:1 to 1:1.5 (i.e., employees can receive 1.5 hours of time off for each 1 hour of overtime banked);
  • Changes to the calculation of all compressed work week arrangements;
  • Stricter requirements on employers to give a mandatory paid or unpaid 30-minute break to employees for each five consecutive hours of work;
  • An increase in the instances that employees are entitled to general and Stat holiday pay;
  • Changes to the calculation of employee’s average daily wage;
  • New deductions from employee wages wherever the employee agrees to such deductions and receives a direct benefit in return (i.e., health and insurance packages, pay advances, meals, and lodging);
  • An increase in the opportunities for youth between 13 and 15 to gain employment;
  • New requirements on employers to notify the Minster of Labour when undertaking a group termination of 50 or more employees at one site within a four-week period (i.e., possibly including a notification to the affected employees and unions, not just the Minister); and
  • Enhanced tools for the government to enforce Employment Standards legislation, including the introduction of administrative and progressive penalties, increased fines, greater authority for employment standards officers, and publicly posting firm names that fail to satisfy judgments, or prove ongoing non-compliance.

 Please continue to read Part 2 here. Thank You!

Article Research Sources: Blake, Cassels & Graydon LLP, Mondaq

Canada: Dealing with a Global Workforce across Multiple Jurisdictions

Progressively, our BC employers are looking abroad to attract international talent into their workforces. Whether those employees are newly hired or are transferred from global affiliates or parent companies, commonplace problems arise when an employer’s workforce becomes global in scope.

Gowling WLG employment and labour law attorneys delved into jurisdictional issues that arise in managing personnel from distinctive countries, and across multiple provinces.

On November 17, 2016, the Gowling WLG employment and labour legal team presented a number of the most common and pressing issues you are likely to be challenged with, including:

  • Hiring Temporary Foreign Workers (TFWs): Who is eligible, and how long can you employ them?
  • Drafting Employment Agreements for Temporary Foreign Workers (TFWs) and workers who function in multiple jurisdictions.
  • What happens when a dispute arises with either a TFW or operating in a multi-jurisdictional setting?
  • Best practices for handling terminations.

The video below highlights these key points, as well as other issues that can arise splendidly, and I wish to share it with you now. Please click on the image below, which directly links you to this presentation.

Specifically, the following topics are addressed from a legal perspective:

  • Medical Marijuana in the Workplace
  • Changing language in your Bonus Plans
  • Hiring a Foreign Worker
  • Managing your Global Workforce

For further information or clarification on this subject, please contact the Employment Law experts at Gowling WLG directly. Thank You.

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Supporting Article Research Sources: Gowling WLG,  Mondaq.

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Canada: Higher Costs Associated with Terminating Older Employees

By now, all of us recognize that, for the most part, there is no mandatory retirement age in Ontario or BC.

However, for a myriad of reasons, by and large, related to the sky-rocketing cost of living, there are often shortfalls in retirement savings, and/or job satisfaction, so many of us are working well beyond the traditional retirement age, which leads to an ever-growing number of older employees in the workforce.

In recent years, Ontario courts have moved toward awarding older employees higher damage awards for wrongful dismissals. Courts have additionally held older employees to a lower standard in terms of the efforts required to mitigate wrongful dismissal damages through finding replacement employment. The upshot is that employers are faced with the significantly increased threat of legal responsibility when terminating older employees.

In a recent Ontario, Superior Court of Justice case, the court determined in favor of a 60-year-old non-executive level employee with 30 years’ service for wrongful termination concerning an enterprise undergoing reorganizing because of operational deficits, etc.

The court awarded this ex-employee 2 years’ pay in lieu of notice of termination for her wrongful termination case. To support its findings, the court highlighted a number of recent decisions where older, long-serving, non-executive employees were also awarded 24 months’ notice.

It is significant to note here that this award was based largely on her age, and on the resulting “competitive disadvantage” she would face against younger, more recently trained employees.

So how can employers help reduce the potential liability involved with terminating their older employees?

  • A nicely crafted employment agreement can effectively restrict employees’ entitlements upon termination. Employers should make certain that all personnel execute written employment agreements with enforceable termination provisions;
  • Employers are within their rights to provide employees with working notice of termination instead of termination pay. By providing working notice, employers can significantly lessen or eliminate liability altogether. During the working notice period, employees are required to continue to carry out their duties at the same level of performance. In this case, had the company provided the ex-employee with 18 months’ advance notice of termination, there would have been no liability at the end of the notice period, other than for statutory severance pay of twenty-six (26) weeks’, which cannot be provided through working notice;
  • Wherever possible, employers would be prudent to offer the terminated employee a reference letter. Reference letters increase an employee’s chances of finding replacement employment, which, in turn, reduces the employer liability. In this case, the Court also considered that this enterprise did not offer a reference letter; and
  • Outplacement Counseling can be a powerful tool to aid a terminated employee in finding replacement employment. Employers should consider offering employee Outplacement Counseling upon termination. This is especially so in instances such as in this Ontario case where the employee was long-serving, with little to no work experience outside of the employer’s organization.

 

Supporting Article Research Sources: Mondaq, CCPartners

Canada: Employers Right to Rescind Job Offers

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Employment law in the Alberta region, as well as other areas of Canada, is large in scope. However, in any legal field, there are areas that may be a bit hazy.

While the law clearly states what employers can and cannot do in terms of employment, the time leading up to employment can be one of these hazy, gray areas.

Once an employer extends a job offer, the potential new employee has to take certain actions, such as preparing a notice of resignation to his or her current employer. He or she may also make more extravagant purchases than normal to celebrate the new role, and the anticipation of earning more money. If the job offer is then rescinded, this potential new employee may discover that he or she is in much hot water.

Even though this area of employment law may not be 100% clear, there are a couple of situations in which the employer can withdraw a job offer.

The first is with conditional job offers. For example, an employer offers you a job but tells you that the job hinges on positive reference checks or background checks. In such a case, if the employer receives a bad reference, or spots a problem during a background check, he or she can move to rescind the offer.

The second situation may arise if the potential employer discovers an applicant has not been truthful during his or her recruitment. For example, if an applicant misrepresents his or her education credentials or work history, the employer can legally choose to rescind the offer.

If you believe an employer has illegally rescinded a job offer, you should seek legal advice from an employment lawyer. This can help you determine if the job offer was rescinded in compliance with Alberta’s Employment Standards Code and Regulation.

 

Supporting Article Research Sources: Ridout Barron, HRM Canada, Mondaq

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Canada: Avoid the Potential Pitfalls of ‘Fixed-Term’ Employment Contracts

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On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination (without cause) – after only 23 months into the contract of employment.

In this case, the employee in question had a written contract with a ‘5-year term’. The employer terminated the employee just 23 months into the contract, without alleging cause. The employer’s right to early termination without cause was governed by the following provision:

Employment may be terminated at any time by the Employer and any amounts paid to the Employee shall be in accordance with the Employment Standards Act of Ontario.

The employer paid the employee two weeks’ salary in lieu of notice and took the position that it had satisfied the contract. The motion judge, however, found that the without cause termination provision was unenforceable because of ambiguity. That finding was not appealed.

When the termination without cause provision was held to be unenforceable, the employer argued that the common-law presumption of reasonable notice of termination should apply.

The Court of Appeal disagreed with this thinking and held that when the employer terminated a fixed term employment contract, without cause, and there was no enforceable provision for early termination without cause in the contract, the employee was entitled to the compensation he would have received to the end of the employment contract. As a result, the employee was entitled to 37 months of salary and benefits.

In addition, the Court found that the employee had no duty to mitigate his damages. Consequently, even if the employee found new employment the day following the termination, he would still be entitled to the 37 months of compensation from his former employer.

This case serves as an important reminder of the necessity for clearly written employment contracts as a whole, and the termination provisions therein explicitly.

The key takeaways for employers are:

  • Fully consider whether or not a fixed term contract is appropriate in the circumstances of the specific job and employee at issue. If it is anticipated that the employee may not complete the full term of the contract, either because of availability of work, or the circumstances of the employee, a contract of indefinite duration may be preferable so as to avoid this additional exposure. In most cases, with properly worded termination provisions, there is no need for a fixed term agreement.
  • A termination without cause provision that clearly refers to the applicable employment standards minimum notice provisions is likely inadequate to allow early termination of a fixed term agreement without paying out the remaining sums owed under the contract.
  • Ensure termination provisions are clear and unambiguous. Of course, every contractual term should be clear, but that requirement is especially crucial when dealing with provisions that convey a high price for failure to reap clarity.
  • Employers would do well to keep in mind, absent a provision in the agreement requiring that the employee attempt to mitigate, an employee has no obligation to mitigate his/her damages when a fixed term contract is terminated early.

This case further reinforces the fact that all employers should have their employment contracts reviewed before they are presented to prospective employees. Had the employer adhered to that advice, it could have saved hundreds of thousands of dollars in damages and legal fees.

 

Supporting Article Research Sources: Thompson Dorfman Sweatman LLP, Mondaq

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