Happy Boxing Day everyone! Holidays and vacations are interesting topics for us employment lawyers. We have blogged about Public Holidays under the Ontario Employment Standards Act, 2000 (“ESA”) and in the past. Check out our posts on this topic here.

For workplaces in Ontario, governed by provincial law, there are nine Public Holidays. These are:

  • New Year’s Day
  • Family Day
  • Good Friday
  • Victoria Day
  • Canada Day
  • Labour Day
  • Thanksgiving Day
  • Christmas Day
  • Boxing Day

Working on a Public Holiday

A designation as a public holiday does not mean that employees cannot work on that day. Obviously, lots of people are working and selling us stuff today!

Under the ESA an employee can agree to work on a Public Holiday. If they do so, they can take another day off, which will be paid, or they can be paid premium pay for the Public Holiday worked. Section 73 of the ESA allows retail employees to refuse to work on a Public Holiday or a Sunday, but they do so at the risk of losing hours.

Employees who do not work on Public Holidays generally need to be paid Public Holiday Pay. See our posts on the drama swirling around Public Holiday Pay for more on this topic.

Holidays that are Not Public Holidays

You’ll notice that three of the Public Holiday days listed above fall around this time of year. Many workplaces are shut down around now, for more than these three days. It is certainly not uncommon for offices to be closed from Christmas to January 2. But these extra days off, December 27 – 31, are not Public Holidays.

This raises the question, what is an employee’s entitlement to these unofficial holiday days?

Falling into the same curious category are Easter Monday, Easter Sunday and Civic Holiday. Many employees expect these days off with pay, but employers are not required by the ESA to give them.

This does not mean that employers who have historically provided these days off as paid days can, upon reading this post, take them away. Like any change to the terms of employment, employers must tread carefully or risk constructive dismissal claims, or at the very least, a disgruntled workforce. Generally, some changes can be made upon providing sufficient notice but we recommend getting legal advice about your particular situation before any action is taken.

Get in touch if you’d like to discuss Public Holidays or making changes in your workplace.

Happy Boxing Day everyone!

It’s Clawbies time!  We nominate the following blogs for the 2018 Canadian Law Blog Awards. Click here for more details on #Clawbies2018 and click here for a great list of Canadian Law Blogs to add to your reading list.  We blog weekly and get plenty of inspiration and wisdom from our fellow legal blogging community. There are many to choose from, but here are 3 of our favourites:

1) Macleod Law Firm’s Navigating The Employment Law Waters – https://www.macleodlawfirm.ca/employers/blog-2/

The lawyers at Macleod Law are on the ball and quick to provide relevant and timely info in concise and readable posts. They’ve also made the innovative move to put out two different blogs, one for employers and one for employees.

2) Precedent: New Rules of Law and Style – https://lawandstyle.ca/

This is not a new blog, but it remains current, sometimes spicey and always a great, behind-the-scenes alternative to the heavy work side of law. Lawyers are people too.

3) Of Counsel Podcast – https://robichaudlaw.ca/podcast/

Sean Robichaud has managed to interview a very broad and impressive range of lawyers over 2018. He asks insightful questions and gets interesting and relevant information from the guest. Each show leaves us with plenty to think about and inspiration for practice development and the role of lawyers in the current legal environment.

The season of the office holiday party is upon us! In addition to merriment, this time of year can bring a lot of risk for employers. A new risk this year comes in the form of Prime Minister Trudeau’s legal recreational cannabis and Premier Ford’s relaxed consumption laws. In addition to monitoring intoxication levels from alcohol consumption, employers will now be tasked with monitoring for the added risk of impairment created by cannabis. Employees can now legally step out of the party to enjoy something a little stronger than a post-dinner cigarette!

Social host liability, always a hot blog topic this time of year, now has this added element. Employers, who can be held liable for accidents that happen as a result of overly intoxicated party goers, now need to educate themselves on how to monitor for cannabis impairment or combined alcohol/cannabis impairment.

If this sounds like enough to make you want to institute a dry brunch party, we don’t blame you. The fact is, however, that many employees look forward to the holiday party. It’s also a nice time to meet employees’ families and to say thank you for their hard work and their families support.

What’s a Party Host to Do?

What should employers in the legal cannabis era do? As always, employers need to take precautions to ensure that their parties are safe and that they have taken reasonable steps to ensure that everyone behaves appropriately and gets home safe. This can include ensuring that alcohol is served by a licensed bartender, trained to spot impairment and comfortable cutting people off, providing free transportation to and from the event and providing non-alcoholic options and fun “mocktails” so that employees don’t feel social stigma if they chose not to drink. Employers should also be proactive in addressing the potential for the use of cannabis, recognizing that it is legal and social stigma-wise should be on par with drinking alcohol and it may not be appropriate to ban it outright.

Just as we recommend for the workplace, have a member of the management team trained to spot signs of cannabis impairment. This person (lucky them) should be on duty at the party keeping an eye out for impaired guests. Employers should not allow impaired guests to leave the party without a safe way home. Cannabis and alcohol can combine to heighten impairment.

Employer policies should address legal drug and alcohol use, both in the workplace and at employer-sponsored events. Ensure that these policies are followed at the holiday party. Employers and senior management should practice what they preach and should be reminded of the overall tone they will set. While this can be a challenge in flatter organizations where the boss is very young, the negative memory of missteps will long outlast the temporary restraint recommended for the workplace holiday party. But don’t forget to still have fun in the midst of it all!

Throughout the year we have been blogging on the progress of Bill 203, Ontario’s Pay Transparency Act, 2018 (the Act). Check out our posts discussing the Act here and here. As of our last post in May 2018, this Act was set to come into force on January 1, 2019. Well, in the spirit of keeping things interesting, the Ford government has decided that that is not to be.

Bill 57

Bill 57, a Ford government initiative titled the Restoring Trust, Transparency and Accountability Act, 2018 received Royal Assent in the legislature of Ontario on December 6, 2018. One aspect of this omnibus bill was delaying the commencement of the Act from January 1, 2019 to “a day to be named by proclamation of the Lieutenant Governor.” So basically for an unknown amount of time and possibly indefinitely.

The Pay Transparency Act, 2018 would have done the following:

  • Required publicly advertised job postings to include a salary range;
  • Prohibited employers from asking candidates about their past compensation;
  • Prohibited reprisals against employees who discuss or disclose compensation; and
  • Established a reporting framework that would have required employers with 100 or more employees to track, report and post-compensation gaps based on gender and other diversity characteristics.

Bill 57 will also make other changes that will affect workplaces, including more oversight of public sector union bargaining and public sector executive compensation, a review of the WSIB, various pension law changes,  changes to OHIP drug coverage for children and an increase in the employer health tax relief limit.

Bill 47

The Ford government’s Bill 47, the Making Ontario Open for Business Act, 2018 also did away with some of the Bill 148 changes to increase pay transparency. Bill 47 will repeal the Equal Pay for Equal Work provision of the Employment Standards Act, 2000 related to equal pay for workers of different employment statutes, as well as the provision requiring the employer to respond in writing when an employee makes an inquiry about their rate of pay.

If you have questions about Bill 57, pay transparency, Bill 47 or anything related to employment standards in Ontario get in touch! We are here to help.

Pre-employment police record checks have become common in our information-obsessed society. This is where the employer requires a job candidate to pass a police record check as a condition of being hired. The Police Record Checks Reform Act  (the “Act”) was designed to standardize why and when these record checks can be obtained, as opposed to leaving it up to individual police forces to figure out.

As of November 1, 2018, new requirements regarding pre-employment police record checks are in force.  

Consent

Under the new law, an individual must give written consent at two stages in the record check process:

  1. Consent to the type of check to be conducted
  2. Consent to disclose the results of the check

Candidates need to provide written consent to the type of check the employer requires. Once the check is complete, candidates will be provided with their results and must again provide written consent to have these results shared with the potential employer. Record checks are usually performed by a third party record check provider who liaises between the potential employer, the police service and the candidate.

Types of Record Checks

Under the new law there are three types of record checks:

  1. Criminal record check;
  2. Criminal record and judicial matters check; and
  3. Vulnerable sector check.

The Act includes a helpful table describing the types of checks and what information each check will include, which you can check out here.

In general, the Act tightens up what various checks will disclose. For example, even where a vulnerable sector check is completed, non-conviction information cannot be disclosed unless certain criteria for “exceptional disclosure” are met. These criteria centre around information that may present a risk to vulnerable populations, such as if the individual was charged with a crime where the alleged victim was a child.

There are exceptions to the Act which are detailed at section 2(2) and in the regulations.

Takeaways

This is a complex area of law. If your workplace has routinely required pre-employment checks, you will want to ensure compliance with the Act and make sure that written consent is being obtained. It is also expected that check may not take longer to process. If you have questions about the application of this Act or any other questions about privacy in your workplace get in touch!

Bill 47, the Ford government’s Making Ontario Open for Business Act has passed. One big change the bill makes is to the much discussed (and much used) Bill 148 amendment regarding Personal Emergency Leave. This amendment will come into force on January 1, 2019.

For historical purposes, you can read all about the Bill 148 version of Personal Emergency Leave on our blog here.

Under the Bill 47 version of the Employment Standards Act, we will soon have Sick Leave, Family Responsibility Leave and Bereavement Leave instead of Personal Emergency Leave.

Sick Leave

Sick Leave will consist of an unpaid leave of three days per year for personal illness, injury or medical emergency. Employers can require that the employee provide “evidence reasonable in the circumstances that the employee is entitled to the leave.”

Family Responsibility Leave

Family Responsibility Leave will consist of an unpaid leave of three days per year because of illness, injury or medical emergency or an urgent matter that concerns:

  • the employee’s spouse
  • parent, step-parent or foster parent of the employee or the employee’s spouse
  • child, step-child or foster child of the employee or the employee’s spouse
  • grandparent, step-grandparent, grandchild or step-grandchild of the employee or of the employee’s spouse
  • the spouse of a child of the employee
  • the employee’s brother or sister
  • a relative of the employee who is dependent on the employee for care or assistance

Again the employer can require evidence reasonable in the circumstances that the employee is entitled to the leave.

Bereavement Leave

This leave is two unpaid days per year in the event of the death of an individual in the bulleted list above. Again the employer can require evidence reasonable in the circumstances that the employee is entitled to the leave.

What’s Different?

Personal Emergency Leave entitled a worker to ten days per year, two of which were paid. The leave covered the same three situations as the three new leaves but the days were not allocated to specific reasons. Under Personal Emergency Leave an employee could have taken the full ten days for a sick child, for example. These three new leaves entitle an employee to a possible total of eight days but only if each reason should arise. None of the days under the new leaves are paid.

Under Personal Emergency Leave, employers were not permitted to require medical notes from employees to substantiate their leave entitlement. This protection has been removed and employers can now require whatever evidence is “reasonable in the circumstances.”

An employee is entitled to the new leaves after two weeks of work. Employees were entitled to Personal Emergency Leave immediately and the two paid days after one week of work.

Reality Check

In reality, just because an employee needs more than three days of sick time (or time to care for a family member) per year does not mean that they are no longer entitled to their job. Employers who terminate ill employees or employees who take time off to care for ill relatives, risk human rights complaints. The Ontario Human Rights Code provides accommodations for employees who are ill or who need time off to care for a sick relative. The employer has a duty to accommodate the employee up to the point of undue hardship. Allowing an employee an extra few sick days will rarely, if ever, amount to undue hardship.

Personal Emergency Leave was well-used and employees will be sorry to see it go. Employers will need to update their policies and ensure that employees are aware of the changes to their statutory leave entitlements.

If you need help understanding the changes to Ontario’s employment landscape brought in by Bill 47 get in touch.

This was the question asked in English v. Manulife Financial Corporation, 2018 ONSC 5135 (English). In this case, English, a 66-year-old employee decided to retired when her employer, Manulife Financial Corporation, announced in 2015 that they would be converting their technology and employees would be required to learn a new system. She made this decision on her own and voluntarily. English presented her resignation letter to her boss on September 22, 2016, which stated that she would retire, effective December 31, 2016.

The Employer’s Response

When presented with her resignation letter, English’s boss asked her if she was sure about resigning. He also told her that if she changed her mind she could take back her resignation. English left the meeting with the impression that she could change her mind about her decision.

On October 11, 2016, Manulife announced that it was suspending the technology conversion. This announcement did change English’s mind about retirement. She verbally told her boss that she wished to rescind her notice of retirement. Her boss said nothing in response.

Meanwhile, Manulife had started to take steps to eliminate English’s position. On November 5, 2016, Manulife confirmed in writing that it accepted English’s notice of retirement. English worked until December 12, 2016, when she was told she no longer needed to come back. English was not provided with any notice pay. She then sued Manulife for wrongful dismissal.

What Makes A Retirement or Resignation Real?

A resignation from one’s job must be clear and unequivocal. It must objectively look like the person intends to resign or has resigned. In this case, the court found that English’s retirement letter did provide a clear and unequivocal intention to resign. The question was, could she take it back? Her boss had said so but the court said no.

Manulife accepted English’s retirement. When English stated that she wished to take back her intention to retire, Manulife did not confirm that it would allow her to do so.  

Using contract law principles, the court found that while English’s offer to retire had been accepted by Manulife, her later offer to rescind her retirement was not. Her offer to retire and its acceptance by Manulife created a binding contract. English could not decide to not hold up her end of the bargain.

Takeaways

Previous decisions have held that an employee can rescind their notice of resignation as long as the employer has not relied upon it to their detriment. This case rejected that approach, instead relying on contract law principles. Once an offer has been accepted, a contract is formed and it is not open to the employee to rescind his or her notice of resignation once it had been accepted.

So employees, when you offer your resignation be sure that you mean it! If your employer accepts it, you won’t be able to take it back!

Employers, if an employee resigns confirm that their resignation is accepted IN WRITING! This will protect you if the employee later decides that they want to take it back. It’s noteworthy that English voluntarily tendered her resignation in this case. Pressuring an older worker into retiring is a violation of the law.

How would you like to perform only the most high-level and uniquely human elements of your job?  Are your skills really best utilized on data entry, rote memorization and pushing paper? Artificial Intelligence (AI) promises to delegate all the drudgery of your job to machines while freeing you up to mingle with clients on the golf course and answer phone calls from your private yacht in the Adriatic Sea.

It almost sounds too good to be true.  But are machines really up to the task?

One industry that has highly leveraged AI is recruitment.  As we have previously written about here, the task of sifting through hundreds or thousands of resumes is uniquely suited to machines.  An important feature of the application of AI to recruitment is reducing human bias in the selection of candidates.  But as we warned, an AI system is only as good as the data inputted into it – a critical point recently confronted by Amazon.

The Amazon Story

Amazon developed an AI tool to automate recruitment and reduce bias.  While it appears to have been effective at the former, it seriously failed at the latter.  Since the AI was trained to select applicants based on resumes previously submitted over a 10 year period, the algorithm was in effect trained with tainted data.  The sample contained resumes that were disproportionately from male candidates, and as such, the AI began to prefer male candidates.

Thankfully, Amazon was alerted to and rectified the gender bias in its AI, but eventually scrapped the program altogether.  What if the issue was not discovered, or other biases remained? Further, who is responsible when an organization uses an algorithm to select candidates that in effect discriminates against an identifiable group on human rights grounds?  Since an algorithm cannot explain its decision-making process, how can you be sure it is working as intended and not simply perpetuating existing biases?

Controlling Bias and AI

This raises new and challenging issues for employers and HR professionals. The issue of liability could differ depending on whether companies develop their own AI such as Amazon, or where a company utilizes third-party recruitment applications (the more likely scenario).  

Using third-party software that creates biased outcomes could arguably simply be a result of historical biases in a company’s hiring decisions, and have nothing to do with the AI itself.  But do most employers or HR professionals have the capacity to evaluate whether the bias is created by the algorithm or their company data fed to the algorithm (or both)?

AI recruitment vendors can perform adverse impact tests to determine the integrity of the data.  However, this is often one of the last steps and can come after an organization has invested significant time and resources in implementing the technology.  A best practice could be for organizations to negotiate that vendors detect bias at the start of the project or mitigate it in the course of algorithm development.

Still, this doesn’t guarantee that bias will be eliminated entirely or clarify who is ultimately responsible for biased outcomes.  

Takeaways

So should employers and HR professionals hold off on using AI in recruitment? No, technology is nothing to be afraid of.  AI is still an expedient and efficient tool for large-scale recruitment, and organizations with a long history of unbiased decision-making processes will have better results.  If nothing else, it does turn an organization’s attention to the input and underlying data that feeds into the selection process. This is always a good internal conversation to have, whether or not technology is involved.

This is something to keep on eye on as the technology evolves and policy develops to address the above issues

As always, we would be happy to answer any questions you have regarding the use of AI in the selection of candidates for your workplace.   

Earlier this year the federal government amended the Holidays Act to include Remembrance Day as a legal holiday. You can read more about this in our past post Remembrance Day Enacted as a Legal Holiday. In Ontario, Remembrance Day has not been added to the Employment Standards Act as a public holiday and consequently, workers governed by provincial legislation do not get the day off.

Why Don’t We All Get the Same Days Off?

The answer to this question goes back to our Constitution and the division of powers. Different spheres are governed by the provinces versus by the federal government. This is why workers in Ontario (or any province) do not all get the same days off. Workers in Ontario (or any province) also do not all have the same employment rights because federal and provincial spheres are governed by different laws.

Federal Holidays

Spheres governed by federal legislation are those that concern “national interest.” This encompasses areas that cross provincial borders like mail, shipping, banking, telecommunications and fisheries. Federal industries are governed by the Canada Labour Code. The Canada Labour Code provides for nine “general holidays”:

  • New Year’s Day
  • Good Friday
  • Victoria Day
  • Canada Day
  • Labour Day
  • Thanksgiving Day
  • Remembrance Day
  • Christmas Day
  • Boxing Day

This is why banks are closed on Remembrance Day!

Provincial Holidays

The majority of workplaces in Ontario are governed by the Employment Standards Act. This rapidly evolving piece of legislation provides for nine public holidays. Instead of Remembrance Day, Ontario workplaces have Family Day.

  • New Year’s Day
  • Family Day
  • Good Friday
  • Victoria Day
  • Canada Day
  • Labour Day
  • Thanksgiving Day
  • Christmas Day
  • Boxing Day

For more information on holidays and holiday pay, check out our past post.

Last week the Ford government tabled Bill 47,  Making Ontario Open for Business Act, 2018. This legislation would repeal many of the amendments made by the Bill 148, Fair Workplaces, Better Jobs Act, 2017, most of which came into force in January 2018 but some of which are slated for January 2019.

Not surprisingly the changes proposed by Bill 47 are employer-friendly, in direct response to the employee-friendly changes brought in by Bill 148. The current versions of the Employment Standards Act, 2000 (“ESA”) is still in force and it is important that employers continue to comply with the Bill 148 version of the ESA until the new revisions are passed.

Here are some highlights of the proposed changes. Check out Bill 47 or the Ontario government’s new release for more details.

Minimum Wage

Under the proposed changes, the minimum wage would remain at $14 per hour until 2020, after which point increases would be tied to inflation. Under the current version of the ESA the minimum wage will increase to $15 per hour on January 1, 2019.

Scheduling

The various scheduling provisions of the ESA, set to come into force on January 1, 2019, would be repealed. These include:

    • The right to request changes to schedule or work location after an employee has been employed for at least three months.
    • Minimum of three hours’ pay for being on-call if the employee is available to work but is not called into work, or works less than three hours.
    • The right to refuse requests or demands to work or to be on-call on a day that an employee is not scheduled to work or to be on-call with less than 96 hours’ notice.
    • Three hours’ pay in the event of cancellation of a scheduled shift or an on-call shift within 48 hours before the shift was to begin.

Personal Emergency Leave

Personal emergency leave, currently consisting of 2 paid days and 8 unpaid days of protected leave annually for each worker, has been a tough pill to swallow for many employers. Bill 47 would replace personal emergency leave with the right to 3 sick days, 2 bereavements days and 3 family responsibility days annually. These days would be all unpaid. The provision prohibiting the employer from requiring a medical note would also be repealed.

Equal Pay for Equal Work

This is another provision that has caused many employers a fair bit of pain. The current version of the ESA requires that employees be paid equally for equal work, regardless of their employment status (part-time, casual, temporary). Bill 47 would repeal this provision and allow different classes of workers to be paid different wages.  

Takeaways

The employment law landscape has been pretty wild for the past year and the introduction of Bill 47 suggests that things will continue to be so. Employers need to keep complying the with Bill 148 version of the law for now and should continue to ensure that policies and contracts are up to date. If you have questions about the impact of these changes on your workplace, get in touch! We will keep you updated as the legal landscape evolves.