“Avoid seductive styles” – Telling your employees how to dress

A news story caught our attention recently. The University of Quebec in the Outaouais (UQO) commissioned an instructional video for university employees instructing them on how to dress for work and then emailed it out to staff.

The four-minute video, hosted by a Gatineau based fashion stylist, provided such tips as don’t dress like you’re on vacation and “do not be in seduction style.” The stylist also advised that staff should not wear worn-out clothes or “cheap accessories.”

While we specialize in Ontario and not Quebec law, this piece certainly caused us to raise our eyebrows. Backlash from the professors at UQO has also seemingly caused the video to be taken down.  UQO says that the video was intended to provide “inspiration” and now say that “people are free to wear what they want.”

Can you tell your employees how to dress?

All this begs the question, can you tell your employees how to dress? Or provide them with helpful accessorizing tips? Obviously, some jobs come with uniforms or safety equipment that is crucial to doing the job. In these instances, the dress is a job requirement. The law is pretty clear that where a uniform is required, it is a human rights violation to require that male and female employees wear different uniforms.

The Ontario Human Rights Commission advises as follows with respect to gender-specific dress codes:

  • Female employees should not be expected to meet more difficult requirements than male employees;
  • Female employees should not be expected to dress in a sexual way in order to attract clients; and
  • Employers should be able to prove that any sex-based differences with respect to dress codes are legitimately linked to the requirements of the job – if they are not, they are likely discriminatory.

Many employers in the service industry require female employees to wear tiny skirts and plunging necklines. If the employer refuses to allow a female employee to wear the male uniform or vice versa, they would likely be found to be in violation of the Ontario Human Rights Code.

While the issues with the UQO video were different, something like this still has the potential to be discriminatory. While an employer can have a dress code, care needs to be taken that the dress code is justified and that it does not specifically target one gender. The UQO video seemed to speak to women and to place responsibility on women to control any sexual messages they may be sending out. This borders on the troubling and inappropriate “she was asking for it with that outfit” type of justification for sexual violence.

TakeawaysDress codes need to be reasonable and uniformly applied. If, as an employer, you’re going to list a bunch of things you don’t want to see in the workplace, they should not all target women. For example, in addition to strapless tops, open-toed shoes, and short skirts, maybe throw in cut-off shorts, muscle tanks and t-shirts with logos. In general, you want to treat your employees with respect and avoid being overly paternalistic or controlling about things that may not actually matter to your business.

If you have questions about dress codes or a specific situation you’d like to discuss, get in touch!

Requiring Agility – How Much Can an Employer Change Job Duties?

At SpringLaw we work with a lot of tech companies and start-ups who are all about agility. These employers often include language in their contracts that speaks to being flexible with duties and rolling with the punches as the company scales. How flexible can employers expect their employees to be when it comes to having their roles and duties changed? And how important are these promises of agility in the employment contract? How much can an employer require an employee to change hats before risking a constructive dismissal claim? A case out of Nova Scotia sheds some light on these questions.

What is a Constructive Dismissal?

A constructive dismissal occurs when the employer alters the terms of the employee’s employment in a sufficiently drastic way that a reasonable person in the same situation would consider the contract to have been breached AND that a reasonable person would conclude that the employer no longer intends to be bound by the contract.

Classic examples of constructive dismissals include lowering an employee’s pay or changing their pay structure, requiring them to move to another city to keep their job, demoting an employee or creating or allowing a harassing or poisoned work environment.

The question of flexibility arises when an employer assigns an employee more or different duties.

Whalley v. Cape Breton Regional Municipality

Mr. Whalley held the position of Economic Development Manager for the Municipality of Cape Breton. His offer letter contained a general description of his job – “manages the implementation of economic plans, programs, and services for the municipality.” Once he was hired he was provided with an equally general job description, stating that he was responsible for the development of “an internal strategy that will enable the municipality to play a lead role in creating a self-sustaining, competitive economy in this region.”

For the majority of his career in this role – 15 years – Mr. Whalley ended up focusing his time on the development of the Port of Sydney. In 2015, after he began to voice concerns about ethical issues related to a leasing deal at the Port, Mr. Whalley was informed that the Port of Sydney project would be reassigned.

Mr. Whalley did something that few employees whose duties are changed actually do – he immediately resigned and sued the Municipality for constructive dismissal.

Job Descriptions are not Frozen in Time

Mr. Whalley was not successful in his claim. The court found that he was not constructively dismissed but left his job of his own accord.

Justice Murray commented that there was no express or implied term of Mr. Whalley’s employment that required him to work on a particular file and that it was not reasonable of him to refuse to continue to work once the Port file was reassigned.  Mr. Whalley’s duties were very broad and open to reasonable variation and not “frozen” at the time they were prepared.

Takeaways

Employers who expect their employees to be flexible should establish this expectation at the beginning of the employment relationship with language in the employment contract. While it is unlikely that a court will ever condone significant compensation changes as permissible based on language about agility, this decision suggests that employers should feel confident in changing up an employee’s duties where language is general and reflective of flexibility.    

Uber heading to the Supreme Court

The fate of the gig economy in Canada is in the hands of the Supreme Court. The saga of David Heller and Uber has been in the news for several months and raises important employment law questions relevant to those working in the gig economy.

History of the Case

This is a class action case brought by representative plaintiff David Heller, an Uber Eats driver. Heller argued, on behalf of Ontario Uber drivers, that they are employees of Uber and entitled to the benefits of the Employment Standards Act, 2000 (ESA).

Uber currently has its drivers enter into a Service Agreement. It characterizes itself as a “lead generation service” and drivers, via the Service Agreement, are able to use the Rider App to pick up those leads.

The litigation in this case so far has been around a clause in the Service Agreement that dictates that conflicts arising from the Agreement will be resolved by arbitration in Amsterdam under the Rules of Arbitration of the International Chamber of Commerce. Here is Article 15 of the Service Agreement, for those of you who are really interested:

Except as otherwise set forth in this Agreement, this Agreement shall be exclusively governed by and construed in accordance with the laws of the Netherlands, excluding its rules on the conflict of laws. The Vienna Convention on the International Sale of Goods 1980 (CISG) shall not apply. Any dispute, conflict or controversy, howsoever arising out of or broadly in connection with or relating to this Agreement, including relating to its validity, its construction or its enforceability, shall be first mandatorily submitted to mediation proceedings under the International Chamber of Commerce Mediation Rules (“ICC Mediation Rules”). If such a dispute has not been settled within sixty (60) days after a request for mediation has been submitted under such ICC Mediation Rules, such dispute can be referred to and shall be exclusively and finally resolved by arbitration under the Rules of Arbitration of the International Chamber of Commerce (“ICC Arbitration Rules”) …. The Place of the arbitration shall be Amsterdam, The Netherlands.  

The Service Agreement also states that it is governed by the law of the Netherlands.

The judge in the Superior Court decision decided that the action should not be heard by the court and that the arbitration clause applies.

Ontario Court of Appeal Decision

Mr. Heller appealed this decision to the Ontario Court of Appeal, who decided that the arbitration clause was “unconscionable at common law,” an illegal contracting out of the ESA and therefore invalid. Check out the Court of Appeal decision here or check out Hilary’s comments on this decision in this TVO interview.

The gist of the Court of Appeal’s decision was that there was huge inequality of bargaining power between Uber and the drivers and that it would be practically impossible for an individual driver to exercise their rights under the arbitration provision, which heavily favours the interests of Uber.

The Supreme Court

Where there are larger issues in the Uber case around the status of Uber drivers – namely are they employees and subject to the protections of the ESA or not? – the litigation is not at the stage of answering that question, but instead determining jurisdiction and the enforceability of the arbitration clause.

The Supreme Court of Canada – the highest court in our country – has granted leave to hear Uber’s appeal. This means that they will decide if the Ontario Court of Appeal was correct about the invalidity of the arbitration clause. As with all Supreme Court decisions, their holding will likely have wide implications for contractual alternative dispute clauses, such as this one, and could have broader implications for those working in other areas of the gig economy.  

Employer Pays for Failing to Investigate Harassment

Readers of our blog will know that employers have a legal obligation to take workplace harassment seriously. These obligations are set out in Ontario’s Occupational Health and Safety Act (OHSA) and require that employers with more than five employees have a policy and procedure dealing with workplace violence and harassment. Employers are required to take the safety of their employees seriously and adequately respond to incidents of violence and harassment, but, not every employer does. A recent case sheds light on the consequences of looking the other way when it comes to violence and harassment.

Bassanese v. German Canadian News Company Limited et al.

In Bassanese v. German Canadian News Company et al. Justice Sossin of the Ontario Superior Court of Justice awarded the plaintiff, Ms. Bassanese, $50,000 in aggravated damages for the bad faith actions of her former employer, German Canadian News Company (GCNC).

At the time of her termination from GCNC Ms. Bassanese was 73 years old and had worked at GCNC for 19 years. In the final period of her employment, Ms. Bassanese was harassed by a co-worker. This co-worker yelled and screamed at her, called her an idiot and told her she should be fired. Ms. Bassanese complained to GCNC about the treatment and no actions were taken. On her final day of employment, Ms. Bassanese alleged that the abusive co-worker slapped her in the face three times. GCNC’s response to this situation was to fire Ms. Bassanese. They provided her with no notice.

Ms. Bassanese’s Claim

In response to her termination, Ms. Bassanese filed a lawsuit against GCNC including a claim for aggravated damages. She submitted that the following actions were taken by GCNC in bad faith and justified aggravated damages:

  • Terminating her employment without notice;
  • Failing to investigate her harassment complaint;
  • Terminating her employment in response to her complaint about being slapped – constituting a reprisal under s.50 of OSHA;
  • Failing to provide her with a reference or assistance in finding a new job; and
  • Failing to provide a subsidy for relocation or retaining counselling.

Justice Sossin awarded Ms. Bassanese $50,000 citing that GCNA ignored her complaint and neglected to investigate the complaint or take steps to address the harasser’s inappropriate conduct. Ms. Bassanese was also awarded 19 months of notice pay plus an additional 10% for the loss of employment benefits during the notice period and $15,000 for the slap, for which GCNA was found vicariously liable.

Lessons for Employers

This decision should reinforce that employers need to take the complaints of their employees seriously. Had GCNA conducted a proper investigation and taken appropriate steps to deal with the harassing co-worker, it is likely that they could have avoided the aggravated damages award and perhaps Ms. Bassanese would never have been slapped and terminated.

If you have questions about workplace harassment and the risks of failing to comply with employer obligations get in touch or check out our past posts on workplace harassment.

Top 10 mistakes to avoid when hiring your first employee

For this week’s blog, we have gathered a list of the top 10 mistakes commonly made by freelancers and startups when hiring their first employee.  Avoiding these pitfalls will help start you off on the right foot and avoid the hiring headaches!

We’ve also covered our Top 10 list in this month’s SpringForward Legal Updates if you prefer to watch the webinar instead. Email us for the replay link.

#1 – Misclassifying your worker – Independent contractor, employee or freelancer?

Businesses often have a blend of workers.  Make sure to know which classification your workers fall under.  Employees can be hired for either a fixed or indefinite term whereas independent contractors are hired for services on a specific project and generally service their multiple clients/businesses.  

It is helpful to decide ahead of time what the right hiring path is for your business and what type of worker best suits your business needs and to make sure the hiring contract reflects that classification of worker.  Is the project short term or is this a permanent role you are trying to fill? What is the type of service and industry you are in? These answers will help with the decision-making process.

#2 –  Missing CRA and statutory requirements

The following is a helpful checklist to ensure you are completing the required CRA and statutory requirements for a business with employees:

  • Open an account with CRA for payroll source deductions
  • Have employee(s) complete a TD-1 and a TD1ON Form
  • Year-end T4A & CRA requirements
  • Determine if your business is required to open a Workplace Safety and Insurance Board account.
  • Distribute the Ministry of Labour Fair at Work Ontario Poster
  • Workplaces covered by the Occupational Health and Safety Act (“OHSA”) must display a health and safety at work poster, have a copy of the Occupational Health and Safety Act available, as well as the names and locations of your workplace joint health and safety committee members;
  • Health and safety awareness training is required for every worker and supervisor under the  OHSA.

#3 – Mucking up the employment contract

When hiring new employees, remember that the employment contract is very important!  Make sure that it includes at least the minimum standards for notice, benefits and vacation, etc.  Focus on the termination clause, a lot, and specify employment and post-employment rights and obligations.  Ensure that your new employee agrees to the terms of employment and signs before their first day or all of your hard work in creating a great employment agreement means nothing.

#4 – Mucking up recruitment

When hiring, remember that all stages of the employment relationship are covered by “employment” in the human rights legislation, including the recruitment stage.  The hiring process cannot be discriminatory i.e., differential treatment based on disability, race or gender, etc. Always include this in your post and offer accessibility to those who need it.

#5 – Loosey-goosey remote working rules

For those employees that work remotely, ensure that you have a good policy in place that includes eligibility to work remotely, requirements around responsiveness and communications, digital security, productivity, unauthorized overtime and confidentiality.  Protect your business’ digital assets during employment to make sure they are protected upon termination.

#6 – Being cynical about disability issues

You might be surprised, but this is the busiest area of employment law for lawyers.  Always give the employee the benefit of the doubt (even if something about their doctor’s note and communications to you smells bad).  Workplace “stress” and its medical symptoms are real and can be very expensive for an employer if you get it wrong. Employers are not without rights and recourse, but it’s tricky and one of the few areas we strongly recommend against a DIY approach.

#7 – Failing to manage performance before blow ups

Communication is key with your employees.  Always provide constructive criticism along the way and make sure to document it.  This helps keep emotions in check along the way and ensures that both the employer and employee are on the same page.  It is very hard to fire for cause and you can’t do so without written records of sharing your performance concerns. Mere incompetence is not enough.  

#8 – Giving away your ideas

Business owners are generally very passionate about what they do.  Don’t let all of your hard work leave with your terminated employee.  Have employees sign a confidentiality, non-compete and non-solicitation agreement which will limit their ability to solicit your clients and/or compete for those same clients in the same area.

#9 – Not protecting your ideas

Identify what your intellectual property is and pay a lawyer to protect it.  Period!

#10 – Firing friends and family badly

Hiring friends and family can be great for your business.  They generally have your best interests in mind and you already know that you like them!  When the relationship ends, however, things can go badly. Make sure you protect your business upfront when the relationship is still good.  Always have an employment contract in place. Prepare a termination letter and release ahead of time and do not complete the termination meeting alone, make sure to have another person present. It is also good to always provide the terminated employee with time to consider the termination package received.

Takeaways

We hope that the above list of mistakes to avoid will lessen the stress with the hiring of your first employee as your business grows.  It’s an exciting time – congratulations!

Always remember to always write things down, set expectations upfront and hope for the best but plan for the worst.  Employment contracts and policies are key to avoiding mishaps down the road.

If you have any questions about your first hire or would like help with drafting your employment contracts, feel free to get in touch!

Fired by a robot!

Amazon has been in the news recently for its practice of tracking warehouse workers’ box packing speed and firing them if they do not “make rate.”  According to internal Amazon documents, related to a termination at a Baltimore Maryland warehouse location, Amazon’s automated tracking system automatically generates a series of warnings. After 6 warnings in 12 months, a termination is automatically generated if workers fail to meet “efficiency” standards.  These termination decisions are made automatically by the system and without input from a real person, though Amazon says that supervisors are able to override the automatically generated terminations.

We have truly reached an age where people and robots are working together and where robots are effectively performing an HR function. HR, unlike a self-checkout or an assembly line robot, is something we normally think of as a soft, people only skill! Robots are branching out! However you may feel about machines in the workforce, we think it’s pretty cool that robots are expanding their skill set. While there are certainly risks to be navigated and considered, there are also undoubtedly gains to be had in terms of efficiency and elimination of bias. Robots do not have teacher’s pets!  But should robots be making human resources decisions?

When Your Boss is a Robot

So, effectively, Amazon workers are, to an extent, monitored and managed by these rate tracking robots. The robot supervisors also track the time an employee is “off task” – reportedly causing some employees to skip bathroom breaks. Decisions about productivity rates are made by (human) managers outside of the facility and changed only if more than 75% of the workforce fails to meet the targets. Targets are reviewed quarterly.

Amazon says that a worker can apply to have their termination reviewed by the general manager of their facility or to an appeals panel of their peers. In the Baltimore documents noted above, the terminated worker on one occasion gave the excuse that his “rate” was low because he was ill. He was told by the peer review panel that he should not have come in if his illness was going to slow him down and impact his rate.  

Amazon in Canada

The above details are about Amazon in Baltimore Maryland, where the employment law landscape is different – and much less worker-friendly – than it is here in Canada. However, Amazon has not been without its own bad press here in Ontario. Amazon courier contractors, who employed unionized workers, have gone bankrupt reportedly because the costs of a unionized workforce made it impossible to meet Amazon’s standards for low costs and efficiency. Courier drivers are also reportedly texted – presumably by an automatic system –  if they are not making deliveries fast enough.

Is This Legal?

While we do not know if the Baltimore warehouse situation is playing out in Canada if it is it presents some red flags regarding legal compliance and employer obligations. In Ontario, workers are protected by the Employment Standards Act, the Occupational Health and Safety Act and the Human Rights Code.  

While robots are good for treating everyone the same, workers who need accommodations based on protected human rights grounds, for example, disability, sex or age, need to be given those accommodations up to the point of undue hardship to the employer. In other words, not everyone should be treated the same. The standard of undue hardship for Amazon would be pretty steep – much more than just having to tolerate lower efficiency from one worker. This means that if a worker could not work as fast as Amazon expected because, for example, they had an injured knee or had to take breaks to pray, terminating them for not making rate would be a violation of the Human Rights Code.

Similarly, employers have an obligation under the Occupational Health and Safety Act to provide safe working conditions. Requiring an employee to work so fast that they cannot take bathroom breaks is arguably not safe.

In Canada, employees cannot be terminated “at will” the way they can in the States. While absent human rights reasons, Amazon could terminate an employee for failing to “make rate” it is highly unlikely that this reason would constitute cause, meaning that the terminated employee would need to be provided with notice of termination.

From a Canadian perspective, the practice of automated firing by a robot is concerning. While in some sense the elimination of human bias is good from a human rights perspective, terminating an employee without exploring the possible human rights reasons for which they may not be able to “make rate” is risky!

If you’d like to chat about the impact of technology on your workplace, get in touch!

Sexual Harassment in the Fundraising Donor Space – Part Two

Firstly, Happy May Day and Happy International Workers’ Day!

This week we will be continuing our series on Sexual Harassment in the Fundraising Donor Space and exploring situations where needed donations or funding come with strings attached.

If you haven’t read our Part One from last week, you may want to check it out before reading on.

In our last post, we discussed the employer’s obligation to protect workers from violence, harassment and sexual harassment in the workplace and covered the broad definition of the workplace. Then we posed a variety of tough questions around what to do when the perpetrator of that violence or harassment towards the worker is someone the organization needs. Is tolerating bad behaviour from an important donor just the cost of doing business? And if so, what are the costs?

Employer Obligations

Taking steps to protect workers from violence, harassment and sexual harassment is the law. Employers – and by the way, an employer is defined in the Occupational Health and Safety Act (OHSA) as anyone who employs or contracts for the services of ONE or more workers – must have policies and programs in place regarding their OHSA violence and harassment obligations. Check out the Ministry of Labour’s Guide on this topic for a helpful breakdown. The truth of the matter, however, is that often even employers who have their ducks in a row in terms of policies and programs do not walk the walk when it comes to important clients, investors or donors and look the other way when it comes to bad behaviour. So what happens then?

Complaints and Investigations

If an employee is being harassed and they either complain – formally or informally – or the employer somehow comes to know about the harassment, the obligation to conduct an investigation appropriate in the circumstances is triggered. This is a legal requirement under OHSA and can be a really big deal. If the alleged harasser is someone powerful either in the organization, or an important donor or client, it will likely be difficult to keep the investigation in-house. The person who investigates should neither be involved in the incident nor under the control or influence of the harasser. If the harasser is powerful, it will likely be best to retain a neutral 3rd party investigator. Our own Marnie Baizley is one of these investigators, so feel free to give her a call if you want to learn more.

Investigations can be expensive and disruptive. Arrangements must be made while the investigation is taking place to protect workers and witnesses – this could mean temporarily re-assigning people so they don’t work together, for example.

The investigator will make findings about the allegations and the employer will need to take action based on those findings.

The Consequences of Tolerating Bad Behaviour: Employer Liabilities

While investigations, and whatever tough decisions flow from their findings, aren’t cheap or easy, there are also liabilities for an employer if proper actions regarding harassment are not taken.

Employees who experience harassment in the workplace have the option to bring a variety of claims against an employer who did not take adequate steps to protect them. These could be in the form of notice damages if, for example, an employee leaves claiming that the harassment they endured constituted a constructive dismissal. Employers could also be liable for damages for bad faith, where the employee suffered mental distress as a result of the harassment, or human rights damages where the harassment has a connection to a protected ground, such as sex. Damage amounts are all over the map, but the mere fact of having an employee or ex-employee send an organization a demand letter will start the clock on what can be huge legal fees and a huge suck of energy and moral for an organization.

Employees who feel that their employer is not taking steps to protect them can also complain to the Ministry of Labour, who will then investigate themselves and potentially issue an order to the organization to do something. Often the order will be that the employer conducts an impartial investigation into the harassment complaint. Ministry of Labour inspectors can also initiate Provincial Offences prosecutions for violations of OHSA.

Employer Excuses – But we need that guy!

The need to preserve donor, client or business relationships is not a sufficient excuse for not complying with the law. Employers may think that a decision maker will be sympathetic to them if they could only know how much the organization relies on the harasser and his or her money, but this is not the case. Even if protecting employees from harassment might mean losing the funding that pays their salary, employers still have a legal obligation to protect employees from harassment. The consequences will not be any lighter because of how needed the harasser is.

Takeaways

While looking the other way may be tempting when the harasser brings needed funding or work, not complying with the law and not letting these offending individuals know that their behaviour is unacceptable can be hugely expensive and embarrassing for an organization. Not to mention disruptive and potentially harmful to employees and the workplace. Fortunately, we are seeing a cultural shift where more bad behaviour is being exposed, instead of silently tolerated, and where bullies and harassers are being stood up to. The more we all do our part within our own organizations the faster this needed change will come.

If you’d like to talk more about how to deal with harassment in your organization get in touch! We are passionate about this issue and eager to help.      

Sexual Harassment in the Fundraising Donor Space – Part One

We have talked a lot about workplace sexual harassment on this blog. Practising exclusively in workplace law we, unfortunately, see the issue of workplace sexual harassment come up a lot. Helping employers and employees of all shapes and sizes deal with issues related to sexual harassment makes up a lot of what we do.

Employer Obligations

Ontario organizations and businesses, be they big or small, for-profit or non-profit, as long as they have at least one worker of some type, paid or unpaid, have obligations regarding workplace harassment, violence and sexual harassment under the Ontario Occupational Health and Safety Act (OHSA), as well as the Ontario Human Rights Code. Other provinces have similar legislation and employer obligations. Employers must take steps to protect workers from violence, harassment and sexual harassment on the job and in the workplace.

Workplace, by the way, does not just mean the physical office or worksite but any land, premises, location or thing at, upon, in or near which a worker works. If a worker goes on a work trip, attends an event as part of their job, or travels to a client site then those places are also the workplace and the employer’s obligation to keep the worker safe travels with them.

Safe From Whom?

Given the expansive definition of the workplace, readers will likely not be surprised to learn that employers – who must take every precaution reasonable in the circumstances to protect the worker – must guard against violence and harassment that may come from outside of the workplace. Workplace harassment does not just mean harassment that may occur between employees or co-workers. Harassment may also come from donors, clients, outside vendors, board members, volunteers or investors.

When the Harasser is Important to Business

The unfortunate reality in many workplaces is that the harasser is powerful and needed. This is why, presumably, all those people in the know at CBC kept quiet about Jian Gomeshi for so long. His ratings were good and he was an important part of the show. That he has been replaced by the great Tom Power and that Q is still going strong is perhaps a lesson in how even the seemingly irreplaceable are replaceable.

In 2017 and 2018, we saw many news stories about sexual harassment in Silicon Valley and the venture capital world.  Many stories came from women entrepreneurs seeking funding from powerful and wealthy venture capitals. Seed funding, in many cases, seemed to come with the condition of grinning and bearing sexual harassment or worse.

Of course we all know about the #metoo movement over the last couple of years in which the arts industry found a very public online voice that brought down some of the most powerful aggressors in Hollywood and beyond.

This begs the question of what to do when needed money, support, power or influence comes with the condition of tolerating harassment? Or, how to handle the situation if your most important client keeps hitting on your receptionist?  Or the job is conditional on agreeing to sexual conduct? An employer may want to keep a top performer, an important client or take the money of a smarmy investor or donor but can they? Or equally as important, should they? What are an employer’s obligations in these cases? We will explore these questions in our next post.

In the meantime, if you are dealing with harassment in your work get in touch or read our past posts on harassment and sexual harassment for more on this issue.

Let’s talk ergonomics!

You may be scratching your head at our title. What’s ergonomics got to do with law? Maybe even asking, what the heck is ergonomics? Well in this post we will answer both of those questions and tell you why workplace ergonomics should be on the radar of employees and employers alike.

Ergonomics is the science and study of working conditions with respect to the physical body and duties of the worker.  If you work in the public sector or a large organization you’ve probably heard this word, maybe you have even had an occupational therapist come and give you an ergonomic assessment! Lucky you! Ergonomic adjustments for office workers will include things like chairs, standing desks, special keyboards or computer displays.

Ergonomics in the Workplace

Ergonomics is on our mind because the Ontario government recently published a useful new guide called Ergonomics in the workplace. As the guide explains, and as we know from working with clients, ergonomic workplace issues can impact all kinds of workers from construction workers to desk workers and everyone in between. Ergonomic issues can be things like sitting in an awkward position, being in a desk set up where you are constantly having to look over your shoulder to serve clients at the counter, holding a vibrating jackhammer all day, lifting or transferring a patient out of bed in a care setting, changing a beer keg and so on. Think anytime you’re using your body to do your job, yes even if all your body is doing is sitting and clicking a mouse.

Ergonomics and the Occupational Health and Safety Act

The Occupation Health and Safety Act (OHSA) applies to almost all workers and workplaces. Covered employers have a legal obligation to protect workers from hazards, including those that could be caused by poor ergonomics. Ergonomic issues most often turn into workplaces issues when workers develop musculoskeletal disorders (“MSD”) and/or fall.    

The OHSA requires employers to keep equipment, materials and protective devices in good condition. Even things like office chairs that don’t raise and lower properly could cause MSD through extended awkward posture. MSD can result in lost productivity and lost time for employees. Even poor lighting is considered an ergonomic issue that could result in employee eye strain or headaches.  

Employers also have a duty to provide information, instruction and supervision on health and safety. This could be where an ergonomic assessment comes in. Employers have an obligation to teach their employees how to do things like lift safely. Employers also have an obligation to communicate hazards to employees and to take every precaution reasonable in the circumstances to protect workers.

Ergonomics in the Modern Workforce

Many workplaces are moving towards more flexible work arrangements where employees are not necessarily spending all their time working in an office. Some employees work exclusively outside of the office. How do ergonomics and the employer’s OHSA obligations apply in these workplaces? OSHA does not apply to work an employee performs in his or her own home. However, even where there are no legal obligations to do so, it’s a good idea to make sure that your employee’s home office is set up in an ergonomically effective way to ensure that your employee is as comfortable and productive as they can be.

If you have questions about the OHSA or workplace injuries get in touch!

Bill 66 Passes

Bill 66 has passed! Further to our past post on Bill 66 the oh so neutrally named Restoring Ontario’s Competitiveness Act received Royal Assent in the Ontario legislature on April 3, 2019.

This Bill ushers in further changes to the Ontario workplace statutory landscape, with amendments to the Employment Standards Act, 2000 (ESA), the Labour Relations Act, 1995 (LRA) and the Pension Benefits Act (PBA). The ESA and PBA changes are now in effect. The majority of the LRA changes will come into effect on a day to be named by proclamation of the Lieutenant Governor.

Changes to the ESA

The changes to the ESA came into force on April 3, 2019, and have a practical impact on workplaces where overtime is common and where employees work more than the ESA maximum weekly hours of work – 48 hours.

Bill 66 amends the ESA to remove the requirement that employers obtain the approval from the Director of Employment Standards regarding agreements with employees or bargaining units on overtime and excess weekly hours of work.

Overtime Averaging – As was previously the case, employers are allowed to enter into agreements to average the hours an employee works over a specified number of weeks in order to limit the employee’s entitlement to overtime. Prior to Bill 66, approval from the Director of Employment Standards was required. Approval is no longer required, though there are new requirements:

  • Averaging can occur over a maximum of 4 weeks
  • The averaging agreement must include a start date and an end date

Excess Weekly Hours of Work – The maximum weekly hours of work remains the same, 48. Approval was previously required to have employees enter into agreements to exceed the maximum. A written agreement between the employee or bargaining unit and the employer is still required to exceed the maximum, but approval from the Director of Employment Standards is not.

ESA Poster Requirement – Previous to Bill 66, the ESA required that the ESA poster, which is a one-page graphic about employment rights be posted in a conspicuous place in the workplace. Bill 66 has removed this requirement. Employers are still required to provide employees with a copy of the poster upon hire.

Changes to the LRA

Bill 66 amends the LRA to expand the definition of “non-construction employers” to include a wide number of public sector organizations such as municipalities, hospitals, universities and various administrators. The LRA has specific provisions for the construction industry and this change will impact whom those provisions apply to. This provision is not yet in effect, however, a provision allowing some entities to “opt-out” of this change is now in effect and these entities now have three months to file an “opt-out” election.

Changes to the PBA

The Bill 66 amendments to the PBA impact the process by which private sector employers convert single-employer pension plans to jointly sponsored pension plans.

Takeaways

We expect the changes to the ESA to have the biggest impact on day to day operations of private workplaces. If your workplace has averaging agreements or excess hours agreements in place these changes may impact you. Get in touch to talk about the specifics of your situation, we’re here to help!  

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