Another Cannabis Update

This post is a quick update to our past posts on the legalization of cannabis. You can see everything we have written about the legalization of cannabis and how to prepare your workplace here.

More changes are afoot to Ontario’s planned rollout of recreational cannabis. The Doug Ford government has reversed the previous administration’s plan to sell cannabis through government-owned stores only. The latest is that cannabis will be available for sale through the government owed Ontario Cannabis Store online only on October 17, 2018. It is projected that private retailers will be able to sell recreational cannabis starting April 1, 2019. The private stores will be “tightly regulated.” The Ontario Cannabis Store will be the wholesale supplier to these private stores. Private stores currently selling cannabis are doing so illegally.

Public consumption of cannabis will not be permitted, this includes consumption in the workplace. Employees requiring accommodation for their use of medical cannabis will be subject to different standards.

If you have questions about the impact of the legalization of cannabis on your workplace, get in touch.

When Key Employees Leave

High turnover is a growing issue for companies. As I’ve written in the past, the Millennial generation are quick to jump ship for a better opportunity or when they feel the values of the company no longer match their own. Employers need to prepare themselves for the inevitable departures of key employees.

Considerations When a Key Employee Quits

When a key employee quits, while employers may be upset it’s best to put those emotions on the back burner and have a plan. In some situations, it may be worth it to start out the conversation by asking if there is anything the organization can do to retain the employee. If these efforts fail and the employee is for sure on their way out the following are important considerations.

Notice

Talk to the employee about how much notice is reasonable. If the employee has an employment contract, this may speak to how much notice they must provide upon resignation, if any. If it does not, ask the employee what he or she thinks is reasonable. In the absence of an employment contract term, there is no statutory obligation for employees to provide any notice.

While many employers find soon to be ex-employees a liability in the office, in certain key roles the company may have a hard time running without them. Depending on the employee’s role, they may have a duty to make sure their transition is smooth and that no harm comes to the company from their departure.

Reasonable notice for a departing key employee has been held to mean the amount of time it would take the employer to hire and train a replacement. Check out the Ontario Court of Appeal’s comments in GasTOPS Ltd. v. Forsyth for more on this.

Confidentiality and Restrictive Covenants

The departing key employee may be subject to certain obligations that will continue beyond the end of their employment. These include confidentiality agreements, non-competition and non-solicitation agreements. Likely the employee would have entered into these agreements as a condition of their employment when they joined the company. It is a good practice to review the terms of these agreements and remind the departing employee of their continuing obligations. If there are concerns, for example, the employee is leaving for a job at a competing company or the employee is leaving and taking existing clients or staff with them, consult a lawyer to review your options.

It is also important to ensure that confidential information about the company remains confidential. Most confidentiality agreements will also prohibit the departing employee from using confidential information about the company for any purpose other than their job at the company.

Protect Digital Data

Key employees likely have wide access to critical company data. Employers will want to take steps to protect data and to verify that data has not been stolen prior to the employee giving notice. IT support should be able to provide information about what the employee has been forwarding or downloading, as well as what devices have recently been connected to the employee’s computer.  

Exit Interview

The moment when an employee leaves often presents a great opportunity for the employer to get candid feedback on their experience at the company. This feedback can be valuable in helping the company to fix issues that may not be visible to upper management.

Communication to the Rest of the Office

The departure of a key employee can create uncertainty and destabilize the rest of the office, let alone impact the value of the company if the key employee is particularly high profile. The employer should be mindful of the effect that the departure can have and take steps to ensure consistent, positive messaging and a smooth transition plan.

Think Ahead!

A good set up at the beginning of the employment relationship will go a long way to ensure a smooth ending. Prior to bringing key employees on, or promoting them from inside, employers should prepare employment contracts that address issues such as reasonable notice on resignation, confidentiality, non-solicitation and non-competition.  

Workplace Harassment – Employer Obligations

We see almost daily news items about workplace harassment, and employers can expect an uptick in worker awareness and complaints of workplace harassment.  Whether or not an employer has received a complaint, they should be aware of their obligations when it comes to workplace violence and harassment.

Violence and Harassment Under the Occupational Health and Safety Act

The Ontario Occupational Health and Safety Act (OHSA) sets out requirements and duties for employers regarding the prevention and management of violence and harassment, as well as the risk of violence and harassment in the workplace. Workplaces must have policies and programs in place to educate their workforce, prevent and address workplace violence and harassment.

Programs must include policies and training that address the following:

  • What constitutes harassment and violence
  • What are possible sources of harassment and violence in the workplace, including from customers, workers, domestic partners of workers etc.
  • Roles and responsibilities of the workplace parties
  • How to report incidents of workplace violence or harassment
  • How incidents will be investigated and dealt with
  • How information about the complaint and the individuals involved will not be disclosed unless necessary
  • How the worker who has made the complaint will be informed of the results of the investigation

Investigations

The OHSA dictates that complaints of workplace violence or harassment, whether formal or informal, must be investigated. In Ontario, the employer has a legal duty to make the workplace safe, so if there is any indication of behaviour that would make the workplace unsafe, the employer must address it. This may be the case even if the alleged harasser no longer works for the company or if they were a one time customer.

Investigations into workplace violence and harassment should be conducted promptly, within 90 days, and by someone who is not directly involved. This means that if the complaint is about the head of HR, the head of HR should not investigate the complaint, even if investigating harassment complaints falls within their job description. In some workplaces it will be necessary to bring in a third party investigator to ensure that the investigation is conducted without bias.

An investigation must also be thorough. This means that the involved parties and any witnesses should be separately interviewed, and that all relevant documents should be gathered and reviewed. The investigation should result in a report, outlining whether or not a violation of the workplace harassment and violence prevention policy was found and remedial steps to be taken.

Above all, be sure to hear both sides of the story!  The accused/respondent is innocent until proven guilty and her/his version of the dispute must be heard. Every workplace is full of different opinions, and it’s very easy for two people to see the same set of facts from very different perspectives.  Not every complaint amounts to “harassment” under OSHA, but you will never know until you sit and hear both sides out. Getting the process right is just as important as getting the substantive outcome right.

Outcomes

If a violation of the policy is found, the employer will need to address the situation with remedial measures. These could include:

  • Employee training
  • A transfer of the violating employee
  • Termination of the violating employee
  • Mediation
  • An apology
  • Instituting measures to protect workers from the risk of harassment by customers

Learn More If you need help managing a harassment complaint in your workplace, or to ensure that you have a compliant prevention program in place, get in touch. For more about employer duties specific to sexual harassment, as well employer duties under the Ontario Human Rights Code, see our previous post.

Is my employment contract still good?

abstract image of black alphabet letters on a white backgroundIn our practice the question of whether an employment contract is still enforceable comes up often. This usually happens around terminations — whether we are advising a recently terminated employee or helping an employer prepare for a termination, the question of whether dated contract provisions can be relied upon is crucial. Assuming that the contract is otherwise valid, the entire contract may be obsolete if the employee’s role has changed significantly since the time the contract was signed.  

What renders a contract obsolete?

Significant changes to an individual’s employment can render an old contract void. Changes a court may consider significant are:

  • Significant changes to title or position
  • Increased responsibility
  • Major compensation changes
  • Changes to reporting relationships

When these changes are numerous and significant enough it can be said that the “substratum of an employment contract entered into at the time of original hiring has disappeared or it can be implied that that contract could not have been intended to apply to the position in the company ultimately occupied.” Thank you, Justice Robins — writing for the majority of the Ontario Court of Appeal in Wallace v. Toronto-Dominion Bank.

A contract may no longer apply if the employee’s role now looks very different from that which they were hired into. A court may determine that the change to the role was not contemplated when the contract was entered into and therefore the parties could not have intended the contract apply to the new role.

Changes to the law, such as increased employee leave and vacation entitlements under the Bill 148 changes to the Employment Standards Act may also have the effect of rendering a contract unenforceable. An obsolete contract is something additional to watch out for as employees change roles and progress in an organization.

If you are concerned that your employees’ contracts are out of date, or obsolete, contact us for a contract checkup. We can help you figure out if new contracts are necessary and the right steps to take to introduce them to existing employees.

What is solicitor-client privilege?

two people shaking hands over a desktopSolicitor-client privilege is an important legal concept that allows clients to trust their lawyers with private information. The Supreme Court of Canada has called it, “a principal of fundamental justice and civil right of supreme importance in Canadian law.” Given its importance to the relationship, we think it is important for individuals to understand what solicitor-client privilege is.

What is solicitor-client privilege?

Communications and documents protected by solicitor-client privilege are confidential as between the client and the lawyer. This means that what might otherwise be relevant evidence or information, admissible in court or required to be disclosed to the other side in a lawsuit, can be kept confidential.    

In order to claim solicitor-client privilege, and keep otherwise relevant information private, three preconditions must be met. The communication must be:

  • Between lawyer and client;
  • For the purpose of seeking or giving or legal advice; and
  • Intended to be confidential by the parties.

Solicitor-client privilege protects legal advice seeking/giving communications between the lawyer and client, as well as any related materials.

What is not covered by privilege?    

Not every communication that passes between a lawyer and her client is privileged, as it must relate to legal advice. For example, communications from a lawyer providing business advice or a restaurant recommendation would not necessarily be privileged.

Privilege also does not apply to communications that are criminal, or to communications made with a view to obtaining legal advice in order to facilitate the commission of a crime. Watch out Saul Goodman!

Legal information abounds in the information age. It is easy to access legal information on firm blogs and easy to contact lawyers via the web. Information communicated to a lawyer, for the purposes of seeking legal advice, will generally trigger the lawyer’s duty of confidentiality. This means that even if the individual does not end up retaining the lawyer, the lawyer will have a duty to keep information communicated to them confidential. Solicitor client relationships are often established informally, prior to a retainer every having been signed. However, simply accessing legal information on a lawyer’s blog, for example, does not trigger a relationship.

Solicitor-client privilege belongs to the client. This means that, in general, only the client can waive the privilege. Waiver must be done voluntarily. A compelled or unintended disclosure of privileged information does not waive the privilege. Privilege can, however, be broken by a lawyer in limited circumstances. For example, when there is a clear, serious and imminent threat to public safety, or where the lawyer must disclose limited information about the client to defend herself from allegations of misconduct.

Privilege, confidentiality, privacy and the workplace

Issues of privacy and confidentiality often arise in the workplace. Distinct from your relationship with your lawyer, the majority of what takes place at work will not be confidential. This is generally true even where there are sensitive allegations of harassment.

We value our relationships with our clients and this important underpinning principle. If you have questions about privilege, confidentiality or privacy get in touch!

Millennials at Work: Common Legal Issues

There is no shortage of writing about millennial workers. Millennials are the fastest growing cohort of workers, and they are reshaping the way we work, especially in traditional industries. Millennials, the group broadly defined as those born between 1982 – 2000, have different views and different needs than the generations that came before them. They can also present new legal challenges for employers.

What Millennials Want

Millennials are commonly accused of being lazy, entitled, thinking that the rules don’t apply to them and attention hungry. Rates of attrition among this generation are often high, as they tend to be less tolerant of workplace practices that don’t meet their needs and expectations than previous generations. But we need millennials to work, and we need them to be engaged.   

Millennial workers need to be approached with feedback and engagement strategies that differ from those used with the baby boomers. Work needs to be meaningful for millennials. They want to feel like they are an important part of the team and that their contributions make a difference. They have an expectation that they will be treated with respect and that their ideas will be valued, just as much as the ideas of those who are more senior to them.

Millennials tend to see hierarchies as flat, rather than vertical. They expect a high level of socialization and collegiality in the workplace and often prefer to work in groups rather than individually.

Not knowing life before the internet and 24/7 connectivity, Millennials do not typically draw the same distinction between work and the rest of their lives, as other generations have. Millennials think about “work-life blend” not “work-life balance.” Flexibility and doing work they care about are important engagement tools. Another crucial motivation for millennial employees will be whether they feel proud of their organization and the work it does. Those who do not are less likely to stay, even if they are well treated and well-paid.

Feedback is important to millennial works, who were raised having peer-like relationships with adults who provided them with continuous guidance and praise. An annual review is unlikely to be enough for a millennial worker. They want to know how they are doing in real time. Feedback should also be clear and specific and leave no room for misunderstanding. Millennials are relationship based, so receiving feedback from a direct manager will be more meaningful than from someone more remote, like HR.

Raised on technology and connectivity, millennials are less accepting of work models that require long hours in the office. Millennials question arbitrary rules and policies. If they don’t see a good reason to work specific hours in the office when they could get the work done just as effectively in the middle of the night at home, they are likely to question this. The millennial generation is less likely to stick it out in demanding professions that require workers to “pay their dues.”

Legal Challenges

Because millennials are more likely than previous generations to question policies or directions that don’t make sense to them, it is important for employers to have their workplace rules clearly set out and their rational explained. For example, if it is necessary that employees work in the office because of the confidential nature of the information, and the specific confidentiality measures set up on work equipment, this should be explained to workers.

Similarly, because of the way they view work and life as blended, millennial workers are more likely to demand flexibility. This means conducting personal business and socializing at the office, as well as frequently working remotely and outside of business hours. Without clear policies in place, these practices can expose employers to potential overtime claims or data breaches. As 24/7 connectivity and remote working becomes increasingly popular, employers need to be prepared to confront these issues before they crop up.

Millennials are plugged into social issues and equity. They are well-educated and know their rights. Human rights, bullying and harassment issues can be more likely to arise where work-life boundaries are less clear and when personal relationships develop in the workplace. While millennials are likely to want closeness with their co-workers, they are also likely to speak up when things go sideways. Educating the entire workforce about human rights, accessibility and harassment is crucial, not to mention legally required.

While millennial employees may be throwing traditional workplaces for a loop, at SpringLaw we think that change has many benefits that far outweigh the perceived headache of rethinking traditional hierarchies.  The emerging new workforce is as engaged as ever, keen to participate in a meaningful way without merely clock-punching, and can bring an important perspective to any workplace looking to continue being relevant in the modern workforce.

Employee or Independent Contractor? The Effect of Bill 148

people sitting in a subway carOne Bill 148 amendment that could hit businesses hard is the tightening of the law around who is an employee. In the event of a misclassification — an independent contractor who should be classified as an employee — the onus is now on the business to prove the individual is NOT an employee.

Why Use Independent Contractors vs. Employees and What’s the Difference?

Often businesses use a blend of workers. Employees can be hired for either fixed or indefinite terms, and independent contractors or consultants can be retained to provide services on a specific project without becoming employees. There are practical differences between these two categories for the worker and the business. The following chart highlights some of them.

Employee Independent Contractor
Employees are entitled to statutory benefits and protections under the Ontario Employment Standards Act like minimum wage, overtime pay, personal emergency leave, parental leaves, notice of termination, severance pay etc. Independent contractors have no entitlement to Employment Standards Act benefits or protections.
Employees are paid wages with payroll deductions such as CPP, IE and Income Tax  taken by the employer. Independent contractors invoice the business for their work and make their own remissions to the government — Income tax, HST etc.

Independent contractors run their own business and can deduct business expenses from their earnings.

Employees are paid a salary or wages, usually in the same amount regardless of the profitability of the business. Because independent contractors run their own businesses, they assume risk for the businesses profitability or losses.
Employees are usually required to devote their full time and attention to their employer and cannot have side businesses or work elsewhere. Independent contractors run their own business and can provide services to multiple clients at one time.
Employees are provided with all tools and equipment required to do their job — uniform, computer, office space, cell phone etc. Independent contractors furnish themselves with the tools and equipment they need to perform services for the business.
Employees must perform their work themselves and cannot hire someone else to do their job. They are constrained in how they carry out their duties by the direction of the employer. Independent contractors design their own working arrangements, can hire their own employees and can control the way in which they provide services.

 

Consequences of Misclassification for Businesses

The current state of the law in Ontario is that if an independent contractor claims to be an employee, the onus will be on the business to prove that the independent contractor is not. This can be difficult for businesses who will not have access to evidence about the inner workings of the independent contractor’s business. For example, it may be difficult for a business to prove that an independent contractor has other clients when they do not have access to their books.

If an employee is found to have been misclassified as an independent contractor this can generate significant financial liability for employers. A freshly classified employee can make a retroactive claim for minimum wage, vacation pay, public holiday pay, overtime pay as well as termination and severance pay. An employer may also be in a position of backpaying unpaid CPP and EI contributions to the government.

What Can Businesses Do?

Businesses should do a proactive review of their workforce and contracts. If there are independent contractors who are effectively being treated like employees, it may be time to bring them on board. When hiring, even if a worker insists that they want to be an independent contractor and not an employee, employers will be wise to take a hard look at the situation and seek legal advice before agreeing. In the event of a later challenge, the practical reality will govern the classification and not what is written in a contract.

If your business is dealing with staffing decisions or is facing a potential misclassification situation contact us. We can provide you with practical advice and help you sort through the complexities. For more on Bill 148 check out our past posts or our compliance program.

Legalization of Cannabis Update

marijuana leavesThe Canadian government’s legalization of recreational cannabis has again lately been a hot news item. Initially, there were some reports that recreational cannabis was to be legalized this week, by July 1, 2018. For a variety of reasons that date has been pushed back. Legalization is now set for October 17, 2018.

For more details about what exactly will be legal and illegal the Federal Department of Justice web page on Cannabis Legalization and Regulation provides a good starting place. The provinces have been tasked with creating their own laws within the federal framework. For information on Ontario specifically, check out the Ontario government’s Cannabis Legalization page.

Given the push back of the legalization date, employers have a bit more time to update their workplace substance abuse policies and develop strategies to deal with how recreational cannabis use may waft into the workplace.

Given our new provincial government in Ontario, we can’t say that things won’t change but at the moment the legal age limit for recreational cannabis will be 19. Starting October 17, 2018 products will be sold exclusively by the Ontario Cannabis Store. Edible cannabis products are expected to be available by October 2019. Edibles may cause a host of new issues to address, given ease of discrete consumption of cannabis in this form.

Recreational Cannabis and the Workplace

In Ontario, use of recreational cannabis will be permitted only in private residences or the outdoor space of a private residence, for example a porch, and in apartment buildings and condos only in your unit or on your balcony. Use in multi-unit dwellings will be subject to any rules specific to the lease or the building. This means that if the condo board decides to create a cannabis free building they are free to do so, though it is expected that this type of rule will be legally challenged.

Recreational cannabis therefore will not be permitted in the workplace, in any public space or in motorized vehicles. If you have an employee who is slipping out to the parking lot to smoke up during their lunch break they could be subject to the fines of $1,000 for a first offence and $5,000 for subsequent offences for using in public.

Employers and workers have a duty to keep workplaces safe and work safely. While employers have a duty to accommodate medical cannabis use, recreational use of cannabis in the workplace will be a violation of the law.

The Smoke-Free Ontario Act, 2017 comes into force on July 1, 2018. This legislation addresses the use of medical marijuana in the workplace. It prohibits the smoking of cannabis in any enclosed workplace or other designated area over which the employer exercises control, and also requires employers to remove anybody from the workplace who refuses to comply.

Employers should update their substance abuse policies to include language specific to cannabis, or to general impairment and fitness to work. If you’d like to chat about a concern specific to your workplace, get in touch. For more on workplace issues related to substance abuse check out our past posts here.

Termination of Benefits at Age 65 Violates the Charter

The Ontario Human Rights Tribunal (HRTO) has issued an important decision on age discrimination and benefits. In Talos v. Grand Erie District School Board, 2018 HRTO 680 the HRTO found that terminating an employee’s health, dental and life insurance benefits at the age of 65 constitutes age discrimination and is a violation of the Ontario Human Rights Code (the Code).

This is a big deal in the human rights world because s.25(2.1) of the Code actually permits differential treatment in connection with benefits at age 65. The HRTO has now found that this section violates the equality rights guaranteed to all Canadians by section 15 of the Canadian Charter of Rights and Freedoms.

Mr. Talos, the applicant in this case, worked as a teacher. Even though he continued working past age 65, the group health benefits and life insurance he had previously received were terminated when he turned 65. The Grand Erie District School Board relied on s.25(2.1) of the Code to justify terminating his benefits.

In deciding that s.25(2.1) violated the Charter the HTRO decided that, based on evidence from various expert witnesses, it was not cost prohibitive to continue benefits for employees beyond age 65.

Message for Employers

Practically this means that it is now a violation of the Code for employers to terminate the health, dental and life insurance benefits for employees at age 65. Prior to this decision this practice was permitted and common.

Employers who have benefits plans and policies that terminate benefits for employees at age 65 should consider extending these benefits. Continuation of a policy that terminates at 65 will invite discrimination claims.

Given that this is a big shift in the law, we expect the decision will be judicially reviewed by a court. We will keep you up to date on developments. For more on benefits, check out our past posts on this topic. If you’d like help sorting out a benefits issue in your workplace, get in touch, we are happy to help.

Remote Workers: Pros, Cons and Tips

desk with computer, plants, notebook and lightsI love technology and embrace the changes it brings to the workplace. One way we see a big shift is the rising popularity of remote working. Our firm, SpringLaw, is totally remote so perhaps I have a slight bias, but remote working has several advantages.

Remote working can also present some challenges. Employers interested in shifting towards remote working need to be prepared with policies and systems to ensure that everything runs just as smoothly as though you and your team were all sitting within the same 1000 square foot office.  

Opening your office to remote working can widen the talent pool. Employees can live anywhere and still work for you. The wildly talented marketer who just can’t bring himself to leave Yellowknife might be exactly the right fit for your Toronto business. Offering remote work increases accessibility to jobs for workers and to talent for employers.

Advantages

While some employers might be nervous that their remote employees will just be watching TV in their PJs all day, there is evidence to suggest that remote workers are more productive and engaged than office workers. Remote workers actually live at work. The time they don’t spend commuting and chatting at the office water cooler can be put towards productive pursuits. One study conducted by Stanford researchers found remote workers were 13% more productive than onsite workers. These workers put in more time per shift and also took fewer sick leaves and breaks. Another study found that remote workers were actually more invested in their work than their in-office counterparts. Similarly, a 2017 study by Gallop found that remote workers were more likely to feel engaged than office workers (41% vs. 30%).

Challenges

Many of the issues with remote work tend to be around creating a sense of community, sharing common knowledge and supporting career progression. Workers in the Gallop study note that they missed conversations, office celebrations and also that it was more difficult to stay in the loop. I can attest to the fact that there is decidedly less birthday cake in my remote working life than there was in my big office days. Remote workers often experience weaker relationships with their managers and co-workers than office workers. Remote work can also present challenges with respect to collaboration and teamwork — one reason why Yahoo and IBM have decided to bring remote workers back into the office.

Tips

Employers interested in introducing remote workers should be prepared with good employment contracts and with remote working policies. When you do not physically see your employee every day, it is especially important to make expectations clear. Employment contracts should clearly set out when employees are expected to work, what technology and insurance requirements are needed for their remote office space, how they are expected to keep in touch, how frequently they are expected to communicate, and also include the right to bring a remote worker back into the office, should the need arise. If employers have an operation that is partly remote and partly in an office, a policy should clearly address how requests from office employees to work remotely will be dealt with.

On a practical level, incorporating video conferencing, phone calls and some sort of in-person meeting once a month or quarter are all good practices to make sure the human beings in your office do still talk to other human beings.  As text and messaging become a default quick way to communicate, we need to bake in deliberate voice and personal contact, remotely or occasionally in person.

Finally, some workflow and infrastructure will need to adjust if working remotely.  The more paperless and automated, the easier it is to make the transition.

On January 1, 2019 the Scheduling provisions of Bill 148 will come into effect in Ontario. One of these allows employees to request a schedule or location change once they’ve been employed for three months, without fear of being penalized. Whether this will encompass requests to work from home remains to be seen, but remote working is certainly not going away.

If you need help developing contracts and policies for remote workers, please don’t hesitate to contact us.

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