manager exemption for overtime
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Last week we wrote about ways employers can manage overtime liabilities with Averaging Agreements and Time in Lieu. This week we will tackle a commonly litigated overtime issue – the manager exemption. 

The Manager Exemption 

Not every worker is entitled to overtime pay. Exemptions are set out in section 8 of Ontario Regulation 285.1 under the Employment Standards Act, 2000. Included in the list of the exempt is the manager or, to be exact, “a person whose work is supervisory or managerial in character and who may perform non-supervisory or non-managerial tasks on an irregular or exceptional basis.” Who exactly falls under this exemption can be unclear. 
Continue Reading Overtime Part 2: The Manager Exemption

vacation pay class actions
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Since 2019, there have been five proposed class actions against insurance companies and banks for failure to pay proper vacation pay to employees, both past and present. The total amount claimed in the aggregate of these five actions is around $1.2 billion. Royal Bank of Canada is a named party in three of the five actions; in one, it is facing a proposed $800-million class-action lawsuit involving thousands of advisors. Bank of Montreal and Allstate Insurance are also named in these class actions. A significant aspect of the allegations against these employers revolves around the calculation of their employees’ vacation pay. The issue is that for many of these employees, the majority of their compensation is and was made up of commissions and bonuses. Their vacation pay, however, was and continues to be based solely on their much lower base salaries.
Continue Reading Vacation pay class actions a heads up for employers

Leave to Appeal Waksdale Decision
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The highest Canadian court has just confirmed that an invalid “just cause” termination section in an employment contract will also knock out the entire termination section, including the “without cause” section. 

In our earlier blog discussing employment termination packages –Termination Entitlements: Benefits, Bonuses, and Commissions – we promised to keep you updated on 2020’s employment law decision of the year, Waksdale v. Swegon North America Inc. So here we go. 

Leave to Appeal Denied

To recap, Waksdale was a decision from the Ontario Court of Appeal that immediately put termination provisions in jeopardy. In the case, the Court of Appeal found that the employer, Swegon North America, could not rely on their properly drafted “without cause” termination provision, in a without cause termination of their employee, Benjamin Waksdale. The reason is that the  “with cause” provision in the same termination section of his contract was missing certain criteria and did not comply with Ontario’s Employment Standards Act, 2000. We wrote about the decision last summer here
Continue Reading Waksdale: Now the Final Word on Termination Provisions – Leave to Appeal Waksdale Decision to the Supreme Court of Canada is Denied

IDEL extension July 3, 2021
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We had a feeling this might happen! And it has. The Ontario government has extended the length of the Deemed Infectious Disease Emergency Leave (IDEL) AGAIN! Enacting O. Reg 765/20, amending O. Reg 228/20 both under the Employment Standards Act (ESA). 

We have been warning our clients – and webinar attendees – about the upcoming January 2, 2021 end to the Deemed IDEL – it has now been extended to July 3, 2021. 

What is a Deemed IDEL? 

Employees who were laid off or had their hours reduced from March 1, 2020, until July 3, 2021, are on a deemed IDEL. During normal times, we would consider these employees to just be laid off but these regulations convert any reduction in hours – including all the way to ZERO hours and ZERO pay – to be deemed IDELs and not layoffs. 
Continue Reading New! IDEL Extension Until July 3, 2021

Toolkit helps employers during latest Covid-19 lockdownAs COVID-19 continues to create barriers for businesses across the province, many employers face tough decisions regarding their staff. With so much uncertainty regarding when and if things will return to normal, scaling down or shutting down is becoming a reality in many industries. 

At SpringLaw, we help employers navigate these difficult decisions every day, but are also aware that not every business needs traditional legal services. This is why we created our Pivot DIY employer toolkit. Pivot DIY contains guides to help employers decide how to adjust their workforce and template legal documents with instructions on how to customize them. 

Layoffs/Deemed IDEL

Where employers are hopeful that more work will be available in the future, layoffs may be appropriate. A layoff is a temporary stoppage of work. An employer normally needs the contractual right to lay an employee off. Normally, layoffs can only last for specified lengths of time. 
Continue Reading Pivoting Your Business During Yet Another Lockdown

executive termination package entitlements
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Unfortunately, lots of terminations are coming across our desks these days. While most employers understand that they need to provide notice of termination, many employees have a variety of different types of compensation which may or may not continue during the notice period. As with many things in law, it depends! 

Let’s go over some of the common aspects of executive termination packages.

A Primer on Notice

It all starts with notice! Unless an employee is being terminated for cause, they are entitled to notice of termination. “For cause” or “with cause” terminations are rare, so in most cases and absent egregious employee behaviour, employers will owe employees notice.

Continue Reading Termination Entitlements: Benefits, Bonuses and Commissions

Considerations for employers recalling employees to work
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Employers are encountering issues as they ask their employees to come back to work. We will take a look at some of these in today’s blog. 

A Recap 

Many employees were placed on layoffs in March 2020, when the shutdowns occurred. In Ontario, these layoffs were then converted into deemed Infectious Disease Emergency Leaves. While statutory layoff timelines normally restrict the amount of time an employee can be on a layoff before being considered terminated, in Ontario the Infectious Disease Emergencies Leave amendments to the Employment Standards Act changed this. Ontario employees can now be involuntarily off work (laid off) until January 2, 2020, without having a  termination triggered. 

A layoff does not end the employment relationship. It’s just a temporary pause, which anticipates that the employer will bring the employee back to work or recall them. 
Continue Reading Recalling Employees to Work: Considerations for Employers

workplace law advice for employers
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In these challenging times, in the midst of the pandemic, as workplaces re-open, pivot and change, we see the importance and immense value of having strategic employment and workplace law advice. Just a small allocation of thought space and time to being proactive could have changed the outcome of so many situations. We see it now in our firm in many ways. 

Having run a small business for over a decade, I can appreciate that employers are often triaging the urgent demand of finding solutions to client’s needs. Rarely did I have the time or opportunity to “smell the roses” let alone try to proactively anticipate the workplace law needs of my growing organization. However, I now see the critical importance of taking a proactive approach.
Continue Reading Workplace Law: It Pays To Be Proactive

enforceability of specific termination provisions
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This Ontario Court of Appeal decision has been the talk of the town on all the Ontario employment law blogs and while we don’t like to be followers, we also wanted to make sure our readers did not miss this important decision. In Waksdale v. Swegon North America Inc. the Ontario Court of Appeal ruled on the enforceability of specific termination provisions in an employment contract, finding the “without cause” termination provision enforceable because of a flaw in the “with cause” provision. 

Courts frequently come up with new ways of invalidating employer drafted termination provisions that would restrict an employee’s entitlement to notice. The enforceability of termination provisions is what lots of employment cases are about. A properly drafted termination provision in an employment contract can significantly limit an employee’s entitlement to notice of termination. For example, a long service employee terminated “without cause” could be entitled to as little as 8 weeks or as much as 2 years of notice depending on the contract. 
Continue Reading Employers Get Out Your Contracts: An Important Ruling on Termination Provisions

We blogged about David Heller and his fight against Uber last May when leave to the Supreme Court of Canada was granted. You can catch up on the history and read that post here. If you’re a true nerd you can also watch footage of the arguments made in the Supreme Court here!  The Supreme Court’s decision has now been released.

A Brief History

Heller, a driver for UberEats, brought a class action suit against Uber in 2017 alleging that he was an employee under the Employment Standards Act, 2000 (“ESA”). Uber, in response to this suit, said that Heller could not sue in Ontario because of the arbitration clause in his contract with Uber. 

The Arbitration Clause

Putting aside the issue of whether Uber drivers are employees – entitled to things like public holiday pay, vacation pay, notice of termination etc. under the ESA – the suit became about the correct forum. Could Heller bring Uber to court in Ontario? Or did the arbitration clause in the contract with Uber apply?
Continue Reading UberEats Driver Fight Stays in Canada