2017 Resolutions and Fresh Starts

Photo Credit - Eric Rothermel

Photo Credit – Eric Rothermel

January is a month of resolutions, fresh starts, and goals.  It’s also a good time to run away from 2016 and the upsets and surprises the year rolled out.

Here are 3 lessons that 2016 taught us as we all dig in to a new year in the workplace:

#1 – Surprise High Profile Departures

On Friday, June 24, we woke up to the shocking news that the people of the UK voted in favour of leaving the European Union.  While it will take some time to feel the depth of this dramatic economic and political change, it left everyone stunned and bewildered about what to do next.

When a high profile employee suddenly departs your workplace, it can leave a difficult gap of productivity, decision-making processes, sales relationships and knowledge.  It can also generate fear of lost business and profits.  If handled well, however, it can also produce a tremendous opportunity to take a fresh look at how things are done.

The Take-Aways:

  • Stay calm and review the departing employee’s employment contract. What are their resignation obligations, if any?  Are there any non-competes or non-solicitations to consider?  Is there any equity to sort through?  Any benefits to end?
  • Review what digital and physical assets the employee may have that the company needs to immediately protect? Pull in IT immediately to freeze data and monitor data issues.
  • In the storm, do not head for the nearest port. Rush to protect assets and business, but do not rush to replace the employee, promote people in a panic or make any big HR decisions. Many of my clients have been surprised to see how others will quickly rise to the occasion and pitch in – moments of intense pressure can help you identify who should next rise to the top.

#2 – Popular but Disruptive Employees

On November 8, Donald Trump surprised everyone by winning the US presidential election.  He is a polarizing and controversial figure, but it remains a fact that many millions of people voted for him and/or his party.  He is about to assume the highest office in the US and will wield power for the next four years as a result of enough Americans supporting him.

The Take-Aways:

  • Every workplace is full of politics and a wide range of personalities, perspectives and interpretation of entitlements. Most want to embrace that diversity, but what to do when the top decision makers are causing a disruption?  Obviously many disruptions are great – innovation, decisive leadership, and risk-taking are all essential ingredients to success.
  • However, even the CEO is an employee and subject to the basic rules, policies and practices of the workplace. While there is typically nothing you can do if the owner is a problem, a Board of Directors can step in and deal with the CEO, and the CEO can deal with all other layers of senior management.
  • Balancing popularity with effectiveness can trigger some of the most difficult decisions in the workplace. Clear job descriptions, KPIs, targets and objectives all help make the assessment an objective process, to cut through the popularity context.
  • I frequently see clients struggling with that highly profitable manager is who a terrible manager. Over time, the impact on effective processes and getting the most out of all the other employees who are now distracted by poor management does impact the bottom line.  Employees are typically motivated more by inspiring leadership than fear of reprisals or unpredictable behaviour.

#3 – Bereavement Leaves

2016 was a year full of high profile deaths.  While your workplace may not be full of one-of-a-kind music legends or celebrities, each loss will nevertheless have a significant impact on your workplace.

The Take-Aways:

  • Statutory bereavement leaves vary across the country, ranging from 3 to 5 days. Ontario provides for up to 10 unpaid days of emergency leave, but only for those workplaces with at least 50 employees.
  • In addition, most collective agreements, and some individual employment contracts or workplace policies allow for a few days bereavement, typically in the 3-5 day range. This would be inclusive of any statutory entitlement.
  • Even if not in writing, most workplaces will allow for some amount of time for an employee to grieve the loss of a loved one. To refuse to do so will no doubt lead to a very unproductive, distracted and further upset employee.
  • Having said that, an employer is not obligated to provide an extensive period of time, particularly if there was minimal travel involved to attend to services. Having a specific number set out in writing will assist with clear timelines and processes to determine how to handle requests, including whether to ask for a medical note should the employee indicate that they continue to suffer with depression, lost sleep and other symptoms related to profound loss.

2016 was a year full of upsets, departures and uncertainty on the world stage.  2017 will no doubt be as memorable, but January is a great time for fresh starts and looking forward.

#Clawbies2016 Nominations

clawbies-socialIt’s that time of year to vote for your favourite law blog.  In case you haven’t heard of illustrious awards such as the Oscars, Junos or Clawbies, the Clawbies are the annual awards for Canadian legal blogs in a variety of areas, including practitioner, firm or legal publisher.  To vote, you tweet out your favourites and the Wizards of Legal Blog Oz will make their determinations at the end of December.

My 2016 nominations for individual practitioners this year are:

  1. Doug Macleod: He is a regular blogger with practical wisdom in the employment law space, who has consistently put out content that is interesting, concise and relevant.
  2. Michael Spratt:  Michael is a criminal lawyer in Ottawa that never pulls any punches.  He has the courage to put his full range of opinions on paper and fight for access to criminal justice in a vigorous, compelling manner, while somehow mixing in humour with it all.  He also produces The Docket Podcast, interviewing a great list of Canadian who’s who.
  3. Sean Bawden: Sean’s blog is a great go-to place for employment law updates and analysis. He’s an engaging writer that always seems on top of the latest legal developments.

My nomination for a legal publisher is:

First Reference:  As a Canadian workplace law resource, you can’t beat First Reference.  They are a collaborate, community builder of many employment lawyers in this practice area, providing a daily source of great information for employment lawyers, HR professionals and the public.  (As a disclaimer, I am a contributor and public fan, so have an obvious but well-founded and legitimate bias.)


Employment Standards FYI – Overtime

Photo credit: Linda Xu

Photo credit: Linda Xu

Just in time for the holidays, here is a quick primer on overtime entitlements in Ontario.

The Ontario Employment Standards Act (“ESA”) sets out a maximum number of hours an employee can work before they are entitled to overtime pay. The general rule is that employees must be paid 1½ times their regular rate (i.e. “time and a half”) for each hour over and above 44 hours per week. If your employees are salaried, as opposed to hourly, overtime is calculated by dividing their weekly salary by 44 to arrive at their hourly rate of pay.

If your workplace is unionized, the collective agreement may vary these thresholds, but cannot go below the minimums standards in the ESA overall.

The overtime threshold varies from province to province in Canada, and will depend on whether the provincial or federal rules apply (most employees in Canada are provincially regulated).  The range is 40 to 48 hours, calculated by the week in some provinces, or by an 8-hour day threshold in other provinces.

In Ontario, overtime is calculated on a weekly basis for most workplaces.  Some workplaces, however, may have a written averaging agreement in place, or the employer may have sought Ministry approval under section 22.1 of the ESA, which allows for some variation to the default rule.

Time in lieu of overtime is permitted if the employee and the employer have agreed and the time off is taken within three to twelve months of it being earned. Time in lieu is calculated the same way as overtime, one and one-half hours of paid time off work for each hour of overtime worked.

Not all categories of employees are entitled to overtime (or time in lieu).  For example, management employees and IT professionals (as defined in the ESA) are exempt from overtime and several other provisions of the ESA.  The Ministry of Labour has a user friendly tool for determining which employment rules apply to which jobs.

The Ministry guide on overtime is a helpful tool for general overtime information, including how overtime intersects with public holiday pay.  For more complex application of the overtime rules for your employees, feel free to reach out to us with your questions.

When Employees Fail to Engage in the Accommodation Process

Photo Credit - Alvaro Serrano

Photo Credit – Alvaro Serrano

Last week I wrote about the statutory framework of the family status accommodation requirements in Ontario.  The case that has moved this area of law along is Misetich v Value Village Stores (2016 HRTO 1229, “Misetich”), a case the Human Rights Tribunal of Ontario (HRTO) released this fall.


This case intersects with disability accommodation law and explores the difficult issue of competing human rights.  The HRTO reviewed the caselaw, including the Federal Court of Appeal’s Johnstone case, and clarified its test for accommodating family status requests in the workplace.

Background to the Misetich Case

In Misetich, the applicant was a part-time sales clerk working in the front of the Value Village Store, who then moved full-time to the more physically demanding production area in the back.  In January 2013, the employee developed an arm and hand injury and, after providing medical documentation regarding the injury, was offered accommodation by moving back to the front of the store.

Moving back to the front of the store meant returning to irregular hours that were often on evenings and weekends.  The back end production role had been Monday to Friday.

When presented with the option of disability accommodation by moving back to the front of the store, the employee requested specific shift times as accommodation on the basis of family status so that she could care for her 89 year old mother.

Accommodating Family Status

And so began the dispute between the employer and employee regarding the parameters of family status accommodation.  Over the next number of months, the employer requested medical documentation to establish that the employee was the primary caregiver, the parent is unable to safely perform the duties the daughter is required to do, that no one other than the daughter can perform those duties, and that the daughter has taken all reasonable steps to self-accommodate.

The employee was offended by this request and refused to provide any detail other than a one-liner doctor’s note that said she had to “take care of her mother”.  She instructed her doctor not to provide any confidential medical details regarding her mother to her employer.  The employer remained in the dark regarding the extent of family status accommodation required.

The HRTO Family Status Test

The information sought by the employer was essentially those requirements set out in the Johnston test for accommodation.  The adjudicator in the Misetich case rejected what she described as a higher standard of accommodation required by Johnston and the subsequent line of cases.  Rather, she held that the test for discrimination should be the same for all cases, including family status:

[43]      …the applicant must establish that he or she is a member of a protected group, has experienced adverse treatment, and the ground of discrimination was a factor in the adverse treatment. There is no principled basis for developing a different test for discrimination depending on the prohibited ground of discrimination alleged.

The adjudicator expressly parted ways with the previous line of cases for a number of reasons, including the inconsistency of outcomes, the higher standard required, the difficulty of applying the requirement for a legal responsibility to have been triggered by the obligation to cases involving elder care (i.e. there are legal obligations regarding children but not parents), and finally, the confusing conflation of the test for discrimination and accommodation.

In this case, the employer’s requirement that the employee “self-accommodate” raised concern.  The tribunal held that mutually considering the supports available to the employee is fine, but the threshold becomes too high when the employer requires the employee to bear the onus of finding a solution to the family/work conflict before discrimination can be established (para 56).

The repeated request for proof that there was no other solution disproportionately shifted the onus to the employee.  Rather, once the employee proves discrimination, the onus shifts to the employer to establish that the employee cannot be accommodated to the point of undue hardship (para 57).

While the HRTO clarified that the test for establishing family status should not require the employee to prove no solution is possible before establishing discrimination, in this case, the employer prevailed.  Throughout 2013, the employee failed to provide any medical documentation or other proof that accommodation was required.  As a result, the employee failed to establish discrimination.  The HRTO held as follows:

[63]        The applicant baldly asserted to the respondent that the change in hours discriminated against her on the basis of her family status. While the applicant made this assertion, she provided no information to the respondent about the nature of her eldercare responsibilities. The only information that she gave was that she provided evening meals for her mother.

[64]        The applicant’s ability to provide evening meals for her mother was not adversely affected by the requirement to work days, evenings and weekends. The applicant could have worked these shifts and provided evening meals for her mother, when required, in the same way that she was able to provide a meal in the middle of the day. As a result, the applicant has failed to establish discrimination. In light of this ruling, it is not necessary to consider the issue of accommodation.

[65]        For these reasons, the applicant has failed to make out her claim of discrimination.

Take Aways for Both Sides

Personal preference and the failure to meaningfully cooperate in the accommodation process continues to prevent an employee from succeeding in a discrimination claim.  The family status test may have shifted, but the employer’s right to basic information to engage in accommodation has not. In this case, the failure of the employee to cooperate meaningfully in the accommodation process lost her case before it even got to the stage of determining whether the employer accommodated her up to undue hardship.


Family Status Discrimination: The Statutory Framework

Photo Credit - Anne de Haas

Photo Credit – Anne de Haas

Discrimination on the grounds of “family status” continues to be a hot topic for Canadian employers. Are employers required to accommodate an employee’s eldercare obligations? Are these sorts of obligations different than an employee’s childcare obligations?  Where is the line between personal preference to help out one’s parents and a medical or legal obligation that requires accommodation under the Ontario Human Rights Code?  What happens when an employee’s disability accommodation starts to intersect with her family care obligations?

In an era full of dual-income families without the traditional housewife who spent significant time taking care of aging parents and young children, families continue to sort through how to continue working while fulfilling care duties on the homefront.

Over the next few weeks, I will explore the statutory framework of discrimination on the basis of “family status”, the evolving case law, the new legal test, and best practices for handling family status issues in the workplace.

Legislative Framework

All human rights legislation across Canada include “family status” (“civil status” in Quebec) as a ground of prohibited discrimination. The only exception is New Brunswick, but there are apparently ongoing reviews to add the ground at some point.

Under the Ontario Human Rights Code, Ontario employers cannot discriminate against an employee on various protected grounds, including “family status”, as follows:

  1. (1)Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability

The term “family status” is defined in the Code to mean “the status of being in a parent and child relationship”.

Constructive Discrimination

Few employers would discriminate flatly on the grounds that someone is caring for aging parents or taking care of kids if the employee is otherwise a reliable, high performer.  Having said that, there is no doubt that discriminatory assumptions about family care continue to exist in many workplaces (I cringe every time I hear people talk of “her baby brain” when a women returns from mat leave).

The more complicated risk of discrimination, however, is when an otherwise acceptable rule, standard or qualification amounts to a discriminatory result as follows:

  1. (1)A right of a person under Part I [the general Freedom from Discrimination provisions] is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

All employees who are captured by one of the protected grounds under the Code are entitled to be accommodated, up to the point of undue hardship of the employer, subject to the exceptions of (a) a reasonable and bona fide requirement or (b) the Code declares that a specific act is not discrimination (e.g. setting up a religious school and requiring families attending the school to be of that particular faith).

This is a very complicated and prolific area of human rights law in Canada. What is undue hardship, and at what point can the employer say it has reached that threshold?

Stay tuned for my next post on family status, where I discuss what the accommodation of this ground of discrimination looks like, and what the courts and tribunals are saying are the lengths employers must go to address discrimination on the basis of family status.


12 Tips for Tipsy Holiday Parties

As of the date of this posting, there are only 38 more sleeps until December 25 (according to my kids’ countdown app).  This means only 5 more weekends (6 if you count December 24 as a perfectly noble shopping day) and likely several parties before the end of the year.  Cue the annual articles on holiday party liability.

Photo Credit - Marcela Laskoski

Photo Credit – Marcela Laskoski

If you are a young entrepreneur with a workforce full of friends, see my past post, Holiday Party Tips for the Young Boss.

With the increasingly diverse demographics of our Canadian workforce, fewer employees will actually celebrate a religious Christmas, so the focus is likely more on marking the milestone of another calendar year of hard work and success.

Here are 12 tips to mark that milestone with festive teambuilding – and to feed your defence should anything go awry:

  1. Delegate some of the planning to both an extravert and an introvert, to ensure a balanced approach to the party.  Word the invitations to staff in a way that is inclusive to all but that does not make attendance mandatory.
  2. Do not have your own staff serve the drinks – it’s also always easier to cut off a stranger than a friend or worse, a supervisor.
  3. Avoid an open bar with a free-for-all, unmonitored approach.  Consider drink tickets or providing the first couple of rounds only so that you can state in cross-examination how many drinks were officially provided to guests.
  4. Serve real food, not just snacks.
  5. Oh social media. Where to begin. Showing you have a vibrant, fun workplace is one thing (so lots of civilized group shots on the company Facebook page the next day), but over-the-top hammered pictures will always come back to haunt you and your staff. A friendly reminder in the invite and also in an email the afternoon of the party advising staff to avoid over-posting on personal social sites is one option. If you have a particularly post-friendly workplace, you may need to also delegate someone to keep an eye on posts that reference the company name the night of, so that more embarrassing posts can be removed or responded to quickly.
  6. Serve non-alcoholic drink options – not just water or pop.
  7. Don’t serve free alcohol until the wee hours.  Wrap up the free booze before midnight, a couple of hours before the end of the party.
  8. Appoint someone to discretely keep an eye on over-drinking, and to cut people off before it’s too late.
  9. Order lots of Uber, hand out taxi chits freely and consider hotel rooms. These are some of your strongest defences and easiest way to avoid anyone driving.
  10. Never let an employee who drank alcohol drive home.  Turning a blind eye or not asking questions or respecting their privacy/dignity is not an option – if that person gets in an accident on the way home, you are liable as host of the party, even if the party is at a third party restaurant.  If the person pops into another bar on the way home first, you may still be at least partially liable for the contribution of the first several rounds of drinks.
  11. Be mindful of any employees you think may have a drug or alcohol issue.  Addictions are a disability under Canadian human rights law.  Some employees may otherwise have bad experiences with drug or alcohol in their personal lives or be dealing with unrelated but difficult issues at home, and are just not in the mood for a big party.  Avoid pressuring staff to come to the holiday party, and consider marking year end milestones in a variety of ways, not just at the end of a long night of festivities.
  12. As the owner, take a look around throughout the night and make sure all your staff feel included and part of the action.  Loud, drunk staff parties can be very difficult, awkward or just plain boring to some employees, but those very well could be your best contributors who you really want to thank the most for the past year’s achievements.

Top 3 Tips for More Effective Use of Online HR Resources

Photo Credit - Dariusz Sankowski

Photo Credit – Dariusz Sankowski

Why reinvent the wheel?  Drafting employment contracts, policies, termination letters and releases based on a past precedent is often a good place to start. It is usually both time and cost efficient, and for someone unfamiliar with the document, it’s a great learning opportunity.

Plus, in today’s knowledge economy, there are a ton of great online resources to draw from, and it levels the HR playing field so that both entrepreneurs and large global corporations can have access to good legal documents.

When using a precedent or online resource, here are the top 3 tips to ensure the document is legally enforceable in your workplace:

1) Jurisdiction:  Always, always be sure the document is written for a Canadian workplace and is governed by Canadian law.  Look for the governing law provision near the end of most legal documents.  More often than not, the online resource will be a US-drafted document, which gives rise to very different fundamental laws.  For example, we do not have “at-will” employment in Canada, such that every employment relationship is a contractual relationship, whether express/written or implied.  This means that whether you have a great contract, or a really shoddy version that won’t be legally enforceable, the relationship is bound by contract.  In the absence of the enforceable written contract, the employee is entitled to the much broader common law damages (ie the implied contract).

2) Benefits upon Termination:  The Ontario Employment Standards Act requires all benefits to continue during the statutory notice period, and the common law generally requires the employer to make the employee whole during the notice period.  A termination provision that simply provides a few weeks/months of pay with no reference to benefits runs the risk of being declared invalid for attempting to contract out of statute.  This is an area where Canadian caselaw is rapidly evolving, and can be one of the most challenging issues at termination.  This is particularly so for terminations of employees who have a direct need for the benefits but cannot obtain similar benefits through individual insurance.  For many older workers, the odds of finding a new position that will offer benefits are not great, so benefits will often be a key issue.  You’ll want to be able to rely on an up-to-date provision.

3) Employee v Independent Contractor:  A good employment contract will very clearly set out exactly whether the new hire is an employee or whether he or she is an independent contractor.  These are substantively different types of workplace relationships, giving rise to different tax consequences, employment standards and termination entitlements.  Even a very good, otherwise legally tight contract, however, will be useless if the actual relationship is not captured.  The CRA, Ministry of Labour and the courts will all ignore the contract if the relationship is clearly one or the other, and the contract attempts to mischaracterize the actual relationship.  This is a legal question based on various factors considered in each of the different forums.

We fully embrace the exciting and rich array of online resources for HR issues, but it remains important that those resources are enforceable and up-to-date.  Our clients come to us with increasing sophistication and awareness of issues, letting us hit the ground running when providing legal advice.  This hybrid experience will continue to evolve as employers can increasingly compliment their legal advice with online resources and knowledge.

Employment Standards FYI – Minimum Wage     

The minimum wage that every Ontario employer must pay their employees has gone up from $11.25 to $11.40 per hour, effective October 1, 2016.  The Ontario Employment Standards Act sets out further details for specific categories of employees, such as students, liquor servers, hunting and fishing guides, and homeworkers.

For those workplaces that employ students, the new rates increased from $10.55 per hour to $10.70 per hour on October 1, 2016. This rate applies to students under the age of 18 who work 28 hours a week or less when school is in session, or work during a school break or summer holidays. Students who work more than 28 hours a week while school is in session are entitled to the general minimum wage.

As a heads up to entrepreneurs hiring “interns” who are young, hungry for experience and prepared to work for free to get in the door:  the minimum wage laws still apply.  While there may be some carve-outs as part of school experience-type programs, if the person is otherwise performing work in your workplace, she or he is entitled to at least minimum wage.

See the Ministry of Labour’s website for more details on minimum employment standards in Ontario.


Why Bother with Employment Contracts?

I had a client recently ask why he would bother going through the cost and efforts of doing up an employment contract, if he was going to have to fight with ex-employees’ lawyers and pay out a package in a without cause situation anyway.  Good question.

Without Cause Termination Entitlements

It remains very difficult to meet the “just cause” termination threshold in Canada, and in the vast majority of cases, the employee will be entitled to notice or pay in lieu of notice if the employer wants to end the relationship for any reason, other than just cause.  Reasons such as a decline in business or moving a division of the company off shore are not just cause, even if they may be a legitimate reason to terminate an employee’s employment.

All employees must get at least the minimum amount of notice or pay set out in the applicable employment standards legislation.  If there is no written employment contract that clearly sets out the entitlements upon termination (either capping the amount to the statutory amount or providing a bit more on top of the statutory minimums), the employee will be entitled to the common law amount.

The common law amount includes the statutory amount, is typically much more than the statutory minimums, and is an unpredictable range depending on the unique factors of the individual and how similar cases have been decided in the past.  The judge must look in her or his crystal ball and decide what sort of cushion this individual needs to find similar employment.  It can be a highly subjective exercise, although based on caselaw precedent.

Is Rolling the Dice Better?

Some employers prefer to roll the dice and see what sort of package they can negotiate on termination.  By promising a more generous amount in the contract, they worry that they are stuck with having to pay that generous amount at termination, even if the parties have degenerated into a fairly hostile relationship.

So why bother spending resources and effort on termination provisions?  Because it is usually more cost-effective to have the certainty of a known cap than to enter into extensive, heated negotiations with the employee regarding the common law amount.  It enables employers to plan and to think through budgets when deciding whether to terminate an employee.

Perhaps most importantly, it can help focus the parties on a winding up process already agreed upon, rather than diverting resources and time on the emotional arguments about what that employee is worth.  Courts award termination damages to cushion the employee to the next job, but most employees see the entire exercise as a commentary on whether their employer valued the loyalty, sweat and soul they gave to the organization over the years.

Rarely is it just a business decision to the employee, even if they intellectually can accept that.  The raw emotion of being fired will never go away, but a contract with a valid termination clause can help lower the temperature, facilitate a faster resolution and focus the parties on agreed upon terms.

WPC 2016 and the Global Tech Community

Yesterday was Day 1 of the annual Microsoft World Partners Conference here in Toronto.  As the news continues to highlight the distressing conflicts south of the border and around the world, a conference like WPC is a welcomed reminder that we all have far more in common than not.

There are 16,000 attendees that have descended on Toronto in the last day or so.  In the two hours our firm’s booth was open last night, we had visitors to our booth from Latvia, Frankfurt, Dortmund, the UK, California, Delaware, Oklahoma, Texas, Montreal and local Toronto partners.  And that’s not to mention the very kind attendee from Northern Ireland who carried one of my heavy booth prep bags to the convention centre in the hot summer sun with me (thanks Gary!).

Yes, this a conference for a specific industry, but the array of tech businesses, entrepreneurs, and projects on the go were enriched by the array of cultural backgrounds, not hindered.

Today will no doubt be a busy day full of conversations about expanding workforces into Canada, topped by a Women in Tech reception at the Community Hub.  I look forward to meeting so many people around the globe here in Toronto.

We’re at Booth 1737, by the coffee shop/bar – if you’re at WPC, come and say hello!