Woohoo!  Mandatory policies, postings, training, legally enforceable contracts… Actually, no client has ever told us they LOVE thinking through legal compliance for their workplace. Rather, it’s the thing you have to do on top of the other revenue-generating tasks to keep the lights on. 

For owner-operator employers, there is often no one to delegate this to. The internet is full of best practices and comprehensive lists of what to do, but it all eats up your time to figure out.

How to cut through the noise? What HR law compliance tasks must get done today to be legally compliant, and the nice-to-haves when you can in a quarter or two?

We advise our employer clients frequently on how to sort through the mandatory essentials, the things that will get you in trouble with the Ministry of Labour if you fail to comply. As you grow your business and bring on more people to do the additional layers, you can build on that foundation of compliance.

Where To Start?

  • Policies: There are a collection of workplace-related statutes that set out certain policies every Ontario employer must have. Examples include anti-harassment and violence policies, accessibility policies, and certain Employment Standards Act policies.
  • Postings: Ontario employers are required to post certain materials from the government in their physical and/or virtual workplace.
  • Training: Depending on your size and industry, employers have mandatory training obligations
  • Reporting: Also depending on the size of your workplace, there may be certain reporting obligations around accessibility.

In addition to the legal compliance mandated by the government, there are two highly recommended areas to frontload when getting your compliance house in order:

  • Anti-Discrimination: Rolling out an anti-discrimination policy is a critical due diligence step should you receive a claim of discrimination from an employee, as well as a tool of communication to your workplace about your standards of practice to hopefully minimize discrimination claims in the first place.
  • Contracts: Drafting and implementing employment contracts with an enforceable termination clause will not only set out clear job expectations with your candidates and team, but will also be the primary document you lean on in the rising wrongful dismissal cases. A good termination clause can manage expectations and contain the broad packages that many owner-operators find very difficult to afford. 

Much of the content for these compliance steps is common from one workplace to another, but not all. Having the documents capture your workplace’s unique practices will strengthen your legal compliance. Practically, having the core policies, contracts and mandatory compliance steps in place will communicate expectations to your team in a clear and relevant manner.

How We Can Help You Save Time

Too busy to sort through all the details?  Lack the resources or enthusiasm to sift through the mandatory obligations and just want it done as efficiently as possible? 

The overwhelm is real for many of our clients. It’s why we built our 2024 HR Law Compliance Program

If you need a hand identifying the roadmap and setting out an efficient roadmap for your 2024 HR law compliance, we can take the weight off your plate. We will do the heavy lifting for you, stagger out the workplace throughout the year to make it manageable for you, and check in with you once a quarter with a 1:1 compliance coaching call to help you stay on track. We charge a flat fee so there are no surprises over the year of implementation. We want this easy for employers.

We are employment lawyers who actually enjoy this HR law compliance stuff and can cut through the noise for you, giving you confidence you are on track and relief that it’s getting done without eating up all your bandwidth. Come to our website or email us at welcome@springlaw.ca for more details.

When bringing people in to work with your business, the distinction between an “employee” and an “independent contractor” is not just an administrative detail; it carries significant legal implications, particularly in the realms of tax and employment law.

If a court, the Ministry of Labour, or the Canada Revenue Agency (CRA) finds a worker has been “mischaracterized” by being treated as an independent contractor when they are an employee, this can have serious and expensive implications. 

Continue Reading Navigating the Legal Distinction: Employee vs. Independent Contractor Relationships

There has been no shortage of high-profile workplace investigations and discussions surrounding the outcome of those investigations in the news over the past year. But what happens when you’re no longer reading about the investigation in the news and you’re suddenly at the center of one in your workplace? 

Whether you’re an employer who is considering whether investigating is really necessary or an employee who has asked for or been named in an investigation, read on for five basic but important tips:

  1. Employers may be required to conduct an investigation

An employer may be required to conduct an investigation based on its own internal policy or as a matter of law.

Many organizations introduce policies dealing with general complaints or more specific issues like harassment or discrimination. It may seem hard to believe but it’s easy, especially in mid-size organizations that are typically marked by harmony, for an employer to introduce a policy and be less than familiar with its content. Whether you’re an employer faced with a complaint, the person making a complaint or the person who is named in the complaint your first step should be to consult the applicable workplace policies. In your review ensure you understand how investigations are triggered and any information that the policy provides with respect to the procedure, mandate and potential outcomes of the investigation. It’s also a good step to consult workplace policies, if they exist, which define the conduct that is being complained of.

A workplace may also be required to investigate as a matter of law. The Occupational Health and Safety Act, for example, requires that employers conduct an investigation into complaints of workplace harassment, where appropriate. While Ontario’s Human Rights Code doesn’t compel an employer to conduct an investigation into a complaint of discrimination, whether one was conducted will be a primary question for Ontario’s Human Rights Tribunal. 

  1. Investigators may be internal or external to the workplace

Unless a workplace policy mandates that investigations be conducted either by an internal or external investigator, employers typically have a choice between having someone in-house conduct the investigation or hiring a third party. 

While third-party investigators can be very expensive, good investigators can also bring a great deal of expertise to a complex situation. If an employer is selecting an internal investigator, they want to be certain that the internal investigator has a thorough understanding of the investigation process. Obtaining legal advice, in which a lawyer can help guide the internal employee in conducting an investigation may assist an employer in achieving a sounder outcome. 

  1. Investigators are neutral decision-makers

Whether they are internal or external to the organization, it’s important that the employer, complainant, respondent and all witnesses understand that the investigator is not their advocate. The investigator is a neutral party who is expected to collect relevant facts, and assess those facts against the applicable workplace policy or law to determine if the conduct alleged has occurred and to render a decision. If any party needs advice, advocacy or assistance through the process they have to look elsewhere. 

  1. Complainants and Respondents may be owed representation 

Depending on the parameters of your workplace policy, parties to the investigation may 

be owed a representative. This is particularly common in unionized workplaces and unionized employees are often promised the representation of their union throughout the investigation process. 

However, it is increasingly common for non-unionized employees to be offered the opportunity to have a support person present even if this is not promised by a workplace policy. Ultimately, a support person can be very valuable to parties to an investigation, especially if the subject matter of the investigation is particularly sensitive. It is incredibly important that the support person understands that they are there to support the party and cannot provide answers or intervene on their behalf. While many complainants and respondents chose to hire a lawyer to help advise them through the complex investigation journey, a support person can also be a trusted family member or friend. 

  1. Workplace investigations can and do go wrong

Ultimately, the most well-intentioned investigations can and do go wrong. Investigation shortcomings can range from things like extreme delay to a lack of impartial decision-making and everything in between. Investigations can be extremely complex and whether you’re an employer, complainant, respondent or witness, we’d encourage you to reach out with your questions.

As we start a new year, it’s one of the most common times for an employer to review its structure, payroll, and overall organizational needs. While it’s no secret that many companies are doing mass terminations right now, a delicate trend that we are also seeing is mass terminations while simultaneously hiring new employees.

This situation is not only challenging from a legal perspective but also from an employee morale standpoint. This blog post delves into Ontario employment law considerations surrounding terminating while also hiring.

Understanding Mass Terminations under Ontario Employment Law

Ontario’s Employment Standards Act, 2000 (“ESA”) provides the minimum legal framework for mass terminations. According to the ESA, a mass termination occurs when an employer terminates 50 or more employees at a single establishment within a four-week period. Employers are required to provide written notice to the Ministry of Labour, Training and Skills Development and to each affected employee.

However, the law becomes a bit murkier when an employer is simultaneously hiring new staff. The ESA does not explicitly address this scenario, so it is technically legal for an employer to fire and hire at the same time but it can often lead to confusion and potential legal disputes.

Employee Morale Considerations

Beyond the legal implications, mass terminations coupled with hiring new staff raise questions among employees. It can be perceived as unfair, leading to negative impacts on the company’s reputation and employee morale. Employers should strive to uphold fairness and transparency when making these difficult decisions. This includes clearly communicating the reasons for the mass termination, the selection process for layoffs, and the rationale for hiring new staff.

Navigating the Legal Landscape

Employers can take several steps to navigate the legal complexities of mass terminations while hiring:

  1. Fair Selection Process: The selection process for terminations should always be based on objective criteria, such as performance or seniority, rather than personal biases or discrimination.
  2. Fair Notice and Termination/Severance Pay: Employees being terminated should be offered reasonable notice and a fair termination and severance package. What is “fair” will vary by employee depending on their contract, and specifically their termination provision. If an employee is not capped at their ESA entitlements, they will be subject to common notice which depends are various factors.  
  3. Transparent Communication: Employers should strive to communicate openly and honestly with employees about the reasons for the mass terminations and new hires. This can help to alleviate concerns and maintain trust with your current workforce.
  4. Offer Support for Displaced Employees: Employers should provide support for displaced employees, such as outplacement services or assistance with job searches. This can help to soften the blow of the termination and demonstrate the company’s commitment to its employees.
  5. Ensure Ethical Hiring Practices: When hiring new staff, employers should ensure that the process is fair and transparent. This includes clearly communicating the job requirements and selection criteria, and treating all candidates with respect and dignity.
  6. Seek Legal Advice: Most importantly, given the complexities of Ontario employment law, we always recommend consulting with an employment lawyer before proceeding with mass terminations. This can help ensure compliance with the ESA and minimize the risk of legal disputes.

Mass terminations while simultaneously hiring new staff can be a legal minefield for employers. Do you have questions about your legal obligations? Get in touch for a consultation.

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