As employment lawyers, we all have times when we wish our employer-side clients had come to us for advice before making certain decisions.  There’s a lot that can be done to protect an employer who seeks assistance early in the process – especially if it involves a termination.  Costs can be reduced, risks can be mitigated, and whole potential areas for future disputes can be eliminated entirely with careful consideration and planning.

The result of failing to get proper employment law advice can be catastrophic.  Not only can it be exceedingly expensive, but the reputational damage for an organization can be profound.  And if you’re an employer who has made some mistakes in the process – do not double down on those errors by adopting unreasonable and ill-supported litigation strategies.  The patience of Canadian courts has worn thin and there appears to be an increased willingness to award moral and punitive damages, as well as substantial cost awards, when finding that employers have behaved badly.  2023 has produced some truly prodigious decisions on this front.  Here are my top three 2023 cases in which employers f***ed around and found out.

Continue Reading Bad Employer Conduct – 2023’s Top 3 Most Scathing Canadian Employment Law Decisions

Are employers required to accommodate an employee at Christmas?

If an employee requests December 25 off for “family time” or religious events, are those protected grounds under Canadian human rights law?  This arises in industries that stay open 365 days a year, such as hospitals, public transit, variety stores, movie theatres and some restaurants. 

For those employees working in these industries, can an employee request accommodation to have December 25 off on the grounds of family status or religion? 

Christmas off as a Family Status Accommodation

Employers will not be required to accommodate an employee’s request for accommodation on Christmas day for “family time”. This is not a protected ground under Canadian human rights law and is simply a preference.

“Family Status” is a protected ground under human rights law and refers to necessary caregiving duties between a parent and child. Accommodation (up to undue hardship to the employer) may be required if an employee is unable to work because of required caregiving duties, but these will rarely be the factors triggering a request on Christmas day, particularly if other parents or caregivers are available that day to perform the caregiving duties.

Christmas off as a Religious Accommodation

Religious accommodation will have more traction. Under Canadian human rights law, employers are required to accommodate employees’ religious beliefs and practices to the point of undue hardship. This might include requests for religious observances, including Christmas.

All jurisdictions in Canada include religion or creed as a human right to be protected, with Christianity enjoying no greater weight than any other religion during the Christmas holidays.

Employee obligations:

  • Inform the employer about their religious requirements in a timely manner.
  • Cooperate with the employer to provide reasonably requested documentation to support the request. This could include a letter from a priest or pastor confirming membership in a church that requires attendance on Christmas Day.
  • Be able to demonstrate a genuinely held belief triggering the request.

Employer obligations:

  • An employer must consider the request to accommodate but is not obligated to automatically grant accommodation.
  • Once accommodation is granted, the employer must provide an accommodation that respects the employee’s dignity and allows them to fully participate in the workplace, not necessarily the best possible accommodation or exactly what the employee requests.

Factors to Consider for Religious Accommodation

1. Reasonableness: The accommodation should not impose undue hardship on the employer. This includes factors such as cost, disruption to the workplace, and impact on other employees.

2. Sincerity of Belief: The individual requesting the accommodation must have a sincerely held religious belief. This does not necessarily mean that the belief must be part of a mainstream religion or recognized by all followers of that religion.

3. Impact on Others: The accommodation should not infringe on the rights or beliefs of others. This includes both coworkers and customers.

4. Nature of Work: The nature of the job and the workplace may affect the feasibility of certain accommodations. For example, certain safety regulations may limit the types of accommodations that can be made.

5. Size of the Organization: Larger organizations may have more resources and flexibility to provide accommodations than smaller ones.

6. Alternatives: If there are alternative accommodations that would fulfill the individual’s religious needs without causing undue hardship, these should be considered.

7. Fairness: The accommodation should be fair and not give the individual an unfair advantage over others.

8. Consistency: The organization should be consistent in how it handles requests for religious accommodation. This helps to ensure fairness and avoid claims of discrimination.

Undue Hardship

The right to accommodation is not universal. Employers are only required to accommodate up to “undue hardship” to the employer. This is a high threshold that is determined based on factors like cost, outside sources of funding, and health and safety requirements. If an employer can prove that the accommodation would cause undue hardship, they may not be required to provide it.

Emotional Impact

As Hallmark and Hollywood movies will attest, Christmas is full of emotion and big feelings. An employer’s denial of a request to attend what may be a decades long family tradition will trigger an emotional reaction beyond contractual niceties. On the other hand, granting the request to the most upset employee will most certainly have a ripple effect on some other employees prepared to accept the sacrifice.

In many cases, it’s impossible to make everyone happy. Rotating shift obligations year to year and having an objective rationale for selecting employees to work on December 25 will help reduce the overall temperature. Throwing in some perks may also help incentivize employees less fussed about working at Christmas.

If you need a hand navigating this highly-charged time of the year, give us a shout!

On November 8, 2023, we wrote about the new pay transparency legislation in British Columbia that is now in effect and also noted that the Ontario government announced plans to introduce similar legislation. On November 14, 2023, the Ontario government did just that with Bill 149, Working for Workers Four Act, 2023. 

Bill 149, among other things, would require employers who advertise a “publicly advertised job posting” to include “information about the expected compensation for the position or the range of expected compensation for the position.”

Continue Reading Ontario Introduces Pay Transparency Bill as It Aims to Keep Pace with British Columbia and Prince Edward Island

The English magician Tony Corinda once said: “Good timing is invisible. Bad timing sticks out a mile”. As employment lawyers, we talk a lot about the “why”, “what” and definitely the “how much” of terminating an employee, but the “when” is a sometimes overlooked aspect.

Some termination timing issues are a question of best practice or common courtesy, while others can attract significant legal liability and can be costly for employers. An employee who is being terminated may not recognize an employer’s considerate timing, but they will certainly recognize inconsiderate timing, and this will make everything go a lot less smoothly. 

Continue Reading It’s All in the Timing: The Best and Worst Times to Terminate Employees 

Earlier today we learned that Sam Altman, CEO of OpenAI the company behind ChatGPT, was returning to his post as CEO, bringing a captivating story to a close (well at least for now).

In case you missed it, the company dismissed Altman on Friday. The company provided few details on its decision to terminate Altman beyond citing a lack of candour on his part when communicating with its Board.

Continue Reading Learning from OpenAI’s Pitfalls: Termination Ripple Effects

Proposed new job posting requirements regarding AI disclosure

The Ontario government recently introduced Bill 149 – Working for Workers Act, 2023 which includes planned amendments to the rules regarding job postings in the Employment Standards Act. The planned amendments include a requirement that employers disclose the use of artificial intelligence (“AI”) in the hiring process.  The specific language proposed for this amendment in Bill 149 is as follows:

Every employer who advertises a publicly advertised job posting and who uses artificial intelligence to screen, assess or select applicants for the position shall include in the posting a statement disclosing the use of the artificial intelligence.

Continue Reading AI in the Hiring Process – Legislative Changes and Risks for Employers to Consider

On November 1, 2023 British Columbia’s new Pay Transparency Act (“Act”) took effect, which requires employers throughout British Columbia to post expected salary ranges for job postings. Notably, as explained by the British Columbia government in a guidance document, this requirement will also apply to postings for remote positions if the position is open to candidates in British Columbia, among other locations. 

British Columbia is now the second province in Canada with such legislation in effect following Prince Edward Island in 2022. Ontario may also follow suit with the Minister of Labour, Immigration, Training and Skills Development recently announcing the intent to introduce legislation next week regarding pay transparency. As details emerge and if the legislation progresses toward becoming law in Ontario, we will keep you informed.

Continue Reading British Columbia Becomes The Second Province with Pay Transparency Legislation

On October 26, 2023, the Working for Workers Act, 2023(the “Act”), the Ontario government’s third iteration of this legislation aimed at protecting workers,  received Royal Assent and came into force. The Act introduces amendments to several employment-related statutes, impacting employers across the province. Below are some of the most relevant amendments. 

Mass Terminations Under the ESA:

One of the most notable changes introduced by the Act is the expansion of the definition of an employer’s “establishment” under the Employment Standards Act, 2000 (“ESA”). This expansion now includes the private residences of employees who work from home. As a result, employers must take these employees into account when assessing mass terminations. Mass terminations occur when 50 or more employees are terminated within the employer’s “establishment” in a four-week period.

Continue Reading Ontario’s Working for Workers Act, 2023: Key Changes Affecting Employers

In Ontario, employers must abide by the Occupational Health and Safety Act (OHSA) to ensure the safety of their workplace and workers. One legal requirement under OHSA that we often get questions about is an employer’s obligations around Joint Health and Safety Committees (JHSC). Here are some practical tips for employers to meet these obligations. 

Continue Reading Practical Tips on How Employers Can Meet Their Joint Health and Safety Committee Obligations

Receiving notice to bargain can be overwhelming for an employer, especially if it is to negotiate a first collective agreement. It is important to understand key steps in the process in order to be prepared to achieve the best outcome for your business. 

Do not feel rushed 

There is no need to immediately schedule bargaining sessions once you receive notice to bargain. The obligation is to commence bargaining within a reasonable time frame such that the employer is not interfering with the union’s right to collective bargaining. Understandably, it could take up to a few months to align schedules of the bargaining teams on both sides and to ensure adequate time for preparation. 

Continue Reading “You’ve been served with notice to bargain, now what?”