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If you are concerned that your employees’ contracts are out of date, or obsolete, contact us for a contract checkup.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.

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!

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.

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.

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.

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.

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.

poppies in a fieldRemembrance Day in the Spring? With long weekends on the horizon as summer finally rolls in, we turn our minds to the holiday that only some of us get off – Remembrance Day.

Spring discussion of Remembrance is, in fact, timely. In March 208, a law amending the Holidays Act passed in the House of Commons. The change to the Holidays Act makes Remembrance Day a legal holiday, along with Canada Day and Victoria Day. The addition of Remembrance Day to the Holidays Act does not, however, mean that everyone will now get the day off work. Whether employers are required to give employees the day off is up to the provinces. Remembrance Day is currently a statutory holiday in every province except Manitoba, Ontario, Quebec and Nova Scotia.

Federal legislators recognize that adding Remembrance Day to the Holidays Act does not practically have much effect, but are hopeful that the change will encourage the outlier provinces to recognize the holiday and give employees the day off.

In Ontario, public holidays have lately been a contentious issue. The Bill 148 change to how public holiday pay was calculated, which generally saw part-time workers getting paid for a full day on a public holiday, is being reversed. For more information on what this is all about see our recent post on public holiday pay change. Whether Ontario can tolerate more changes in the employment landscape remains to be seen and will also depend on who wins our provincial election. Election Day is June 7 in Ontario. Don’t forget to vote! Read these other posts if you’re curious about voting rights and time off work to vote.

As always, if you need help navigating legal issues in your workplace please get in touch.

the number 148 in a green circleOver the past year we have spent a lot of time thinking, writing, presenting and advising on Bill 148. As Toronto employment lawyers the Ontario employment laws are our bread and butter. Bill 148 overhauled many aspects of the laws we work with every day. This post provides an overview of some of the most significant changes and directs you to resources elsewhere on our blog and our site to help you navigate the changing legal landscape of your workplace.

Background

Bill 148 received Royal Assent from the Ontario legislature in November 2017. The Bill made significant changes to the Employment Standards Act (ESA) and the Labour Relations Act, among others. The Bill also changed the Occupational Health and Safety Act, banning mandatory high heels for women in most industries. Some changes, mostly related to leaves of absence, came into force in early December with the majority following on January 1, 2018. Many changes are still to come, including additional increases to the minimum wage and scheduling changes in January 2019. You can get a full breakdown of the Bill 148 timelines by accessing the Compliance Checklist in our Bill 148 Compliance Program.

Highlights of the Changes

As we’ve helped our clients to navigate the changes we’ve blogged and advised on a variety of topics. The Bill 148 changes are largely employee and union friendly and have presented both financial and practical challenges for our employer and management clients. Below is a short round-up of Bill 148 topics we have covered on our blog.

Leaves

In December 2017, the federal government changed the Parental Leave program so that new parents in federally regulated workplaces could take up to 18 months off of work. With Bill 148, the Ontario government followed suit by amending the ESA to allow for the same benefit for workers covered by provincial legislation. For an overview of the various types of leaves created and changed by Bill 148, see our post on Scheduling, Leaves and Vacation.

One leave change that has gotten a lot of attention is the expansion of Personal Emergency Leave. Bill 148 amended this ESA leave to provide all employees with two paid days of leave and eight unpaid days for an illness, injury or an urgent matter related to an employee’s health, or the health or death of an employee’s loved one. The full ten days of leave are available to all employees, even those who are short-term. Check out our post on Personal Emergency Leave for Short-Term Workers for a full explanation.  

Vacation

The Bill 148 changes to vacation entitlements also created a lot of buzz in the workplace. January 1, 2018, saw workers with at least five years of seniority getting bumped up from two weeks of vacation per year to three. See our post on Vacation Entitlements for more on this topic.

Equal Pay for Equal Work

The Equal Pay for Equal Work amendments came into force on April 1, 2018. These change how part-time, casual or seasonal staff are paid. It is now a legal requirement that compensation be equal for all employees performing substantially the same job, regardless of their employment status. Exceptions to this requirement can be made based on seniority, merit or where employees are paid based on quantity or quality of production.   

Public Holiday Pay

The most recent Bill 148 news item is related to Public Holiday Pay. Reportedly the Bill 148 change to how Public Holiday Pay is calculated generated a high volume of Ministry of Labour complaints. Consequently, this change is being reversed. Starting July 1, 2018, Public Holiday Pay will be calculated according to the pre-Bill 148 formula. For further details see our post on the Public Holiday Pay changes.  

Preparing for the Future

We recommend that employers prepare for January 1, 2019 changes now, specifically those related to scheduling. For example, the Three Hour Rule changes will impact how employers build their schedules and when they notify employees of those schedules. See our Scheduling, Leaves and Vacation post for an overview of these changes.

We have also blogged about wage changes and changes affecting unionized workplaces. Few in Ontario would have escaped the news about the minimum wage increase on January 1, 2018, from $11.40 to $14.00. It will increase again to $15.00 per hour on January 1, 2019. Changes affecting unionized workplaces largely provide more protections for unions and make it easier for workplaces to unionize.

Because Bill 148 is so far-reaching, we’ve prepared an entire client program to get employers up to speed. You can purchase access to our Bill 148 Compliance Program, including a full length eBook, four training webinars and a Compliance Checklist by contacting us.

Bill 148 has become one of our favourite topics. If you need advice about how to implement any of the changes specific to your workplace, we would be pleased to assist.

It has become commonplace for employers to review the social media presence of candidates before hire. A look at a candidate’s Facebook profile, Twitter or LinkedIn is a different kind of background check. How a candidate presents themselves on social media can tell an employer a lot about them, but potentially get employer into hot water. Employers might also be disconcerted by a lack of social media presence from a candidate.

While social media can be an important and useful recruitment tool, employers need to use it with some caution. A Facebook account, even one with decent privacy settings, might tell an employer if the candidate is a parent, if they like to party, where they have gone on vacation, how they lean politically, what concert they went to last week and so on. While some of this information may be harmless, some of it could run an employer into human rights issues. While it is impermissible to ask a candidate if they have children in a job interview, if their Instagram is all bump and baby pictures that is information an employer will have. Decisions about whether to hire cannot, under human rights legislation, be made based upon prohibited grounds such as family status, age, religion or other protected characteristics which may be evident from a candidate’s social media presence.

On the other hand, a social media check may provide an employer with valuable information about a candidate’s level of tech savvy or about their professional judgment. It may be reasonable to decide that a candidate is not an appropriate spokesperson for your daycare if they are constantly tweeting obscenities. In order to avoid potential human rights issues, employers who do want to conduct social media checks should have the check performed by someone other than the hiring manager. The individual who conducts the review can provide the hiring manager with any pertinent information and keep information that touches on protected grounds to themselves.

What if an applicant has no online presence? Although it may sound strange, there remain a significant number of adults who do not have a social media presence. For example, only around 25% of American adults use Twitter. A similarly small number use LinkedIn. And, though it is the most popular, I’m sure we all know a few people who have deleted their Facebook. A 2018 study found that 68% of American adults were Facebook users.

What might it say about a candidate who has no social media presence? While it may suggest that they may not be appropriate for roles that require high levels of social media savvy, it also may not. It is likely unreasonable to make any sort of assumption about a candidate based on a lack of social media presence.

Social media is now a part of our lives, including our work lives. While it can be an important tool, employers need to use their good judgment and use it wisely.

If you have questions about using social media in your recruitment process, contact us. Read more about tech in recruiting on our previous post.