Photo Credit - Sandi Gerrard
Photo Credit – Sandi Gerrard

Toronto is a great place to be a tech employer. It’s a cool city with exciting innovation and talent. If you’re a US company considering getting in on the action in Toronto, there are few things you should know about the True North.

Canada strives to have workplaces that are tolerant and inclusive and employees have some serious protections and benefits. In Ontario, our Human Rights Code expects employers to play a big role in preventing all forms of discrimination at work against a number of protected groups.

Here are a few things employers should be aware of:

1) We do not have at will termination

In Canada, unless the employer has a really good reason, it cannot terminate an employee without providing reasonable notice or pay in lieu of notice. Without at will termination, and with a high threshold for just cause to terminate, terminations are typically accompanied by pay to the terminated employee. If there is no employment agreement, the amount can be substantial.

2) Our employees have privacy rights at work

Employees have an expectation of privacy, even on work devices, and increasingly Canadian courts are recognizing this. While many Canadian employers monitor their employees’ use of technology, there is a fine line to tread between invading privacy and managing the workplace. While some of this can be managed through effective workplace policies, employers should proceed with caution when viewing potentially private digital information.

We advise about privacy and technology a lot! For more information about privacy in the workplace and issues specifically related to BYOD, cyberloafing and co-working, see my past posts on these topics: https://www.canadaemploymenthumanrightslaw.com/category/privacy/

3) Canadians like babies!

In Canada, parental leave is available for the birth or adoption of a child. A new mother can take up to 17 weeks of maternity leave and an additional 35 weeks of parental leave can be shared between both parents or taken by one. During this time off, employees get to continue on benefit plans and earn seniority. At the end of the leave employees must be given their old job back, or be placed in a comparable position.

New parents are entitled to employment insurance benefits while they are away from work, and many employers provide a “top up” to the employment insurance benefits, to ensure the employee does not suffer economically because of the leave.

If you want to make sure your company is compliant with Ontario employment laws, please feel free to send me your questions and I may address them in a future post.

Because of the recent controversy surrounding unpaid interns, we have been getting many calls from concerned employers about their obligation when working with interns and employers’ rights when interns do not work out.

Pay

As a general rule, unpaid internships are not permitted in Ontario. There are a few exceptions, the most common of which is where the intern is a “trainee”.

To qualify as a trainee, ALL of the conditions below must be met:

  1. The on-the-job training is similar to training at vocational school;
  2. The training is for the benefit of the intern and the intern receives a benefit, such as new knowledge or skills;
  3. The employer derives little, if any, benefit from the activity of the intern while he or she is being trained;
  4. The intern does not take an employee’s job;
  5. The employer is not promising the intern a paid position at the end of the training; and
  6. The intern has been advised that he or she will not be paid for his or her time.

If an employer provides an intern with training in skills that are used by the employer’s employees, the intern will generally not fall under the “trainee” exception.

Another situation where unpaid interns are permitted is where the intern performs work under a placement program approved by a university or college.

Simply agreeing to work without pay does not preclude an intern from later filing a claim against an employer for unpaid wages.

Terminatioffice 1on of Employment

If an intern is paid for work performed, the Employment Standards Act (ESA) applies. As a result, ending the internship must comply with the ESA. Employers should have interns sign contracts, setting out a clear (and lawful) termination provision. If the internship is for a fixed term, and if an employment contract with an appropriate termination provision was not signed, an employer may well be found to have to pay the intern what the intern would have earned during the term of the contract, even if the intern is asked to leave before the end of the term. If the term is not fixed and the internship ultimately lasts less than three months, notice will not be required.

Buyer beware – As simple as it may seem, it’s a good idea to call your lawyer before agreeing to let your employee’s niece hang out in the mail room for a few months.

Machines are taking our jobs. Researchers at Oxford have analyzed the skill sets required for more than 700 jobs to determine which of them will be most susceptible to automation. They concluded that in the next few decades, over 47% of the jobs we have today will likely be taken over by machines. we can take some comfort in the fact that growth is predicted in ways we cannot likely conWomen Telephone Operators at Workceive of today, another side of this story is the disproportionate effect job automation will have on women.

Our workforce continues to be divided along gendered lines. For example, according to the US Census Equal Employment Opportunity  Tabulation, 95% of the truck drivers in the US are men and 95% of secretaries and administrative assistants are women. Men hold 97 percent  of U.S. construction and carpentry jobs, and women hold 93 percent of the registered nurse positions. While traditional male job categories like transportation are expected to take a hit, sectors that employ the most women, such as customer service, office support, sales and administration, are expected to be hit harder.

Women are also expected to be disproportionately affected by the job growth in more male dominant sectors. Growth is expected in the STEM careers (science, technology, engineering and mathematics), as well as in fields such as architecture.  According to the World Economic Forum Future of Jobs report, women hold just 11% of worldwide jobs in architecture and engineering and just 23% of jobs in computing and mathematics. According to the World Economic Forum, “women stand to gain only one new STEM job for every 20 lost across other job families, whereas the ratio for men is one new job for every four lost elsewhere.”

The efforts to support and encourage women in tech are critical to address both the current and potential future trends.  Technology itself will otherwise undermine the number of jobs women hold in the STEM fields.  It is not enough to suggest merit will take care of the problem – the historical problem is much deeper and sophisticated than mere hiring quotas.  Creating communities and workplaces where women feel they genuinely belong and are able to contribute meaningfully will help keep women in tech once they get there.

Examples such as the Women in Tech meetup at WPC in July are opportunities to send your women employees to important career and company growth initiatives.  I’ll be there, and look forward to connecting with women entrepreneurs and tech experts.

shoesMicrosoft Corp. and LinkedIn recently announced that Microsoft will soon acquire LinkedIn in a transaction valued at $26.2 billion – click here for the company’s announcement.

Under the deal, Microsoft will purchase LinkedIn’s shares at $196 each. If a share sale like this happened in Ontario, the identity of LinkedIn would not change – Microsoft would simply step in to the shoes of LinkedIn. Microsoft would inherit all employees and employment-related liabilities and obligations of LinkedIn after the deal closed.

Continue Reading Microsoft Acquiring LinkedIn: What is the Employee Impact in a Share Transaction?

Toronto skyline - red
WPC in Toronto

This summer, our firm will be hosting a booth at the 2016 Microsoft World Partner Conference (WPC).  We’re excited to connect with many of the 15,000 MS partners from around the globe who will be coming to Toronto July 10-14.  Come and visit us at Booth 1737, near the coffee shop.

Canada has a deep and highly skilled tech talent pool, and our dollar makes scaling out into Canada an attractive option for growing companies.  Our team looks forward to meeting up with business owners who are navigating the complex Canadian workplace law landscape.

We’re a tech-savvy, virtual law firm that speaks the same language as the WPC community.  We love the entrepreneurial passionate that drives so many of the business that will be coming to the annual conference in Toronto this summer.  There are a ton of great speakers and events, and we can’t wait to be surrounded by that energy and the smarts that drives so much of our modern economy.

Feel free to connect with us @koldorfstamlaw or @lisastam if you’re going to be there and would like to meet up!

 

photo cretit: Matthew Wiebe via UnsplashOn January 11, 2016, Vadim Kazenelson, a former project manager with Metron Construction, received a three and a half year prison sentence as a result of employee fatalities and injury that occurred under his watch. While Kazelnelson’s sentence is the first of its kind in Canada, it will likely be the first of many prison sentences for managers who do not take reasonable action to prevent injury to employees.

Kazenelson’s sentence stemmed from his failure as project manager to take any action that may have prevented the deaths of four employees and serious injury to another employee that resulted when a swing stage scaffold snapped in half on December 24, 2009. The employees had been standing on the swing stage thirteen stories above ground to repair balconies on a high rise apartment building in Toronto. Only two workers on the swing stage were actually were secured by lifelines, as required by law. While Kazelnelson had known about the lack of sufficient lifelines, he did nothing about it after being told not to worry by Fayzullo Fazilov, the site supervisor. Fasilov also died when the swing stage snapped.

Continue Reading Manager Ordered Prison Time for Employee Fatalities

fire hydrantA blog post just in time for some downtime over the holiday – when can personal tweets become grounds for termination?  Some of you may remember when in August of 2013 Canadian news outlets were a-buzz with the termination of two Toronto Firefighters for sexist comments made on Twitter. For a media report on the details of the tweets and reactions, click here.

While the tweets were made off-duty, and not in reference to anything work related, management got involved partly because the Firefighters in question identified themselves as such on their Twitter profiles. The conduct was deemed to be in violation of employer policies, including their Social Media Policy, damaging to the reputation of Toronto Fire and ultimately worthy of termination.

Both individuals grieved their terminations, asking for their jobs back. These two cases are a good example of when tweets can amount to grounds for termination and when reinstatement may be ordered. Continue Reading Tweeting Your Way to Termination

lampshadeWe all have an office party horror story.  The partner who got too sloppy and friendly with the summer student, the awkward aversion of eye contact the next day, or the overly honest comments from the disgruntled employee.

While holiday parties can be an important employee morale booster, for the employer they can present a minefield of potential liability and complaints. For start-ups and entrepreneurs, the informal culture can particularly be an invitation to indulge and live it up in the name of hipster, relaxed office counter-culture.

Employer host liability, however, applies to all workplaces.  Even if it’s a Saturday night and you’re at a fancy bar, the employee’s right to harassment free work environment extends to off-site employer sponsored events. If your company’s New Year’s resolutions have something to do with avoiding human rights complaints, harassment allegations or claims for social host negligence here are our top tips to get you started on the right path. Continue Reading Holiday Party Tips for the Young Boss

settlement by computerWill technology replace or merely enhance our abilities to achieve settlements?  Last week I spoke at an Osgoode Professional Development session on Settlement in the Digital Era: Essentials for Non-Techies.  My co-panelist was Colm Brannigan, a mediator very familiar with Online Dispute Resolution (ODR).  Colm and I have had some good discussions beforehand about how technology can assist the settlement process, whether an informal negotiation between parties or a formal court-ordered mediation.

Ultimately, despite the tech fan and early adopter in both of us, we realised that nothing can replace the human aspect of resolving most disputes beyond a traffic ticket.  For many people, they simply need to physically face their opposing party and ‘have their day in court’.  The emotions in our voice and on our face, the passion of our positions and the human needs that have to be addressed in dispute resolution cannot be completely replaced by technology.

But….  Continue Reading Does technology replace or enhance dispute resolution?

OPC BYOD GuidelinesI’ve written several posts about BYOD in the past, and continue to believe that for many workplaces, BYOD will be difficult if not impossible to resist. However, it won’t be news to anyone that BYOD raises a full array of privacy and security issues related to the potential blurring and blending of employee personal information and business/customer information on devices.

Recently, the Office of the Privacy Commissioner of Canada, along with the Alberta and British Columbia Information and Privacy Commissioners, have published guidelines to assist organizations considering or implementing BYOD policies.

While the publication does not introduce anything overly novel, it does provide a good roadmap in one document, a roadmap with quite a bit of weight if you are trying to prove your organization did its due diligence around implementing a prudent BYOD program.

Continue Reading Privacy Commissioner’s BYOD Guidelines