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Posts tagged: employment standards act

Will Changed Workplace Laws Increase Competitiveness for Ontario Businesses?

By , December 27, 2018 12:32 pm

“We’ve heard loud and clear from businesses across Ontario that job growth starts with cutting the burdensome, job-killing red tape that is driving jobs and investment out of our province … We are making Ontario open for business.” 

Premier Ford in his closing speech this October at the annual Ontario Economic Summit.

Less than 2 months later,  the Ontario government tabled Bill 66, Restoring Ontario’s Competitiveness Act, 2018.

Bill 66, an omnibus bill, is part of the Ontario Open for Business Action Plan and announces over 30 actions to make it easier for businesses to create jobs.

Bill 66 at Schedule 9 outlines, among other things, the proposed changes to Ontario’s Employment Standards Act, 2000 (“ESA”).

How Bill 66 Proposes to Amend the ESA

The changes Bill 66 makes to the ESA are intended to reduce regulatory burdens on businesses. Firstly, Bill 66 amends section 2 of the ESA so that employers no longer must display a poster that provides information about the ESA and its regulations in the workplace. However, the requirement to provide a copy of the most recent version of this ESA poster to each employee is retained.

Second, Bill 66 would remove the requirement for employers to obtain approval from the Director of Employment Standards for excess hours of work and overtime averaging. Specifically, Bill 66 would amend Part VII of the ESA so that a Director’s approval would no longer be required for employers in order to make an agreement that allows their employees to exceed 48 hours of work in a work week.

Further, Bill 66 proposes to amend Part VIII of the ESA to remove the requirement to obtain the Director’s approval for employers to make agreements which allow them to average their employees’ hours of work for the purpose of determining the employees’ entitlement to overtime pay. This means that for the purposes of overtime entitlement, an employee’s hours may be averaged over a period that does not exceed 4 weeks,  in accordance with the terms of an averaging agreement between the parties.

Bill 66 also proposes that existing averaging agreements be deemed to have met the requirements set out in the ESA. Therefore, such agreements would continue to be valid until it is revoked by the employer, employee, or the Director.

As a result of these changes, employers would no longer be required to apply to the Ministry of Labour for approval of their employees’ excess weekly hours of work and overtime averaging. Employers are for these changes because it provides for increased flexibility to manage employee shifts. Employee groups oppose these changes, believing that they could result in more hours and less overtime pay for workers.

Lesson To Be Learned

If Bill 66 becomes law employers should review their employment contracts to make sure employees agree to work excess hours if requested, and also make sure that employees agree that their hours can be averaged over 2 or more weeks for the purpose of calculating overtime pay. This will ensure that there are enough employees available to address surges in business, and reduce payroll costs in workplaces where there are ebbs and flows in hours of work. We would would be pleased to assist with this contractual review.

Although Bill 66 is not yet law, it is expected to proceed quickly through legislature, just as Bill 47 did. For more information on the impact Bill 66 will have on your business, contact an employment lawyer at MacLeod Law Firm. You can reach us at [email protected] or 647-204-8107.

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

Doug’s Top 10 Employment Law Stories of 2018

By , December 27, 2018 9:36 am

In 2018 there were many new developments in the employment law world.

Here are my top 10 stories of the year:

1. Bill 148 Bit the Dust

Ontario’s Employment Standards Act received its last major update in 2000. During the last three years, the Liberal provincial government consulted widely and introduced comprehensive changes to this law by way of Bill 148. After this year’s spring election, the PC government reversed almost all of these changes. See here and here for blogs on the to and froing on changes to Ontario’s minimum employment standards law.

Bottom line: the time that employers, human resources consultants, and employment lawyers spent on this process was all for nought and a law that needed updating has not really changed.

2. The Ontario Government is Now Selling Recreational Cannabis

In October 2018, Canada became the second country in the world to legalize the sale of cannabis. When edibles start being sold by the Ontario government in 2019, it will be difficult to detect cannabis use or impairment in the workplace. As a result, we recommend that all employers introduce or update its substance abuse policy and we can draft one for you. Here and here are links to blogs on this issue.

3. #MeToo is Alive and Well

In 2018, several senior executives in a number of industries were fired for sexual harassment. The public and employers are keenly aware of this issue. So are employees and as a result the number of complaints have increased. Employees in Ontario can file a complaint at work or file an application with the Human Rights Tribunal of Ontario. See here and here for some of our blogs on this issue.

We recommend that every employer introduce a no-discrimination policy and we can draft one for you.

4. The Number of Workplace Harassment Complaints Has Skyrocketed

In the fall of 2016, Ontario’s health & safety law was amended to require Ontario employers to investigate any incident or complaint of workplace harassment and the investigator must be trained on how to investigate. Since that time, we have seen a significant increase in the number of complaints. Here is a link to a blog on this issue.

In 2018, the number of external, professional workplace investigators mushroomed and most are currently working at full capacity. We recommend that every employer make sure that one employee is trained on how to conduct a workplace investigation. We are offering a one day training session on February 14, 2019. For more information, contact Judy Lam at 647-204-8107.

5. The Uncertainty Around the Enforcement of Termination Clauses Continues

This story has been in my top 10 list for 3 years. Many wrongful dismissal cases involve a dispute as to whether or not the termination clause in the employee’s employment contract is enforceable. Despite numerous court cases on this issue (including several cases from the Ontario Court of Appeal) it is still difficult to predict whether a judge will enforce a termination clause in an employment contract. See here, here, and here for some of our blogs on this issue.

I sincerely hope our Court of Appeal will provide some clear guidance in this area in 2019. In the meantime, we can draft legally enforceable termination clauses for you.

6. Limiting Group Benefits for Seniors has Been Found to be Unconstitutional

There are provisions in Ontario’s human rights and employment standards legislation which permit employers to discriminate against employees who are 65 years old when it comes to providing coverage for some group benefits. Here is a link to a case which stated that these laws are unconstitutional.

We therefore suggest that you talk to your benefit provider to find out whether senior citizen employees are excluded from any of your group benefits.

7. Wrongful Dismissal Damages are Increasing for Older Workers

Since 1960, judges have been directed to take an employee’s age into account when determining the appropriate reasonable notice period. In 2006, mandatory retirement was eliminated in Ontario. Recently, a number of judges have suggested or implied that notice periods should be extended for employees over 60 years old and that these employees are not really expected to find alternative employment. Here is a blog on this issue.

8. Are Executives Entitled to Variable Compensation During the Applicable Notice Period?

Variable compensation makes up the majority of many senior executives’ compensation.  One issue that often arises when an executive is terminated is whether or not the employee is entitled to pay in lieu of this variable compensation during the applicable notice period. The employer says no because the employee has not done anything to achieve the results needed to trigger this compensation. However, Courts are not sympathetic to this kind of argument. See here, here, and here for cases where the employer’s argument was rejected by a judge.

The good news is that it is possible to draft contractual language that precludes an executive from receiving any variable compensation after his or her last day of active employment. Please contact me if you want to discuss how this can be accomplished.

9. Secretly Recording Conversations at the Workplace

Michael Cohen secretly taped Donald Trump and more and more employees are taping conversations in the workplace. In this age of social media and the use of a cell phone as a person’s appendage, I think this trend will continue. Depending on your perspective, doing so undermines the trust needed between employees and employers or is evidence that such trust does not exist. Managing this possible scenario is tricky. Here is a blog on this topic.

10. The Number of Employment Standards Act Audits is Increasing

In 2017, the Liberal government announced it was hiring 175 Employment Standards officers who would randomly visit 1 in 10 Ontario workplaces each year to make sure the employer is complying with the Employment Standards Act. As a result of the PC government’s hiring freeze not all of these people have been hired, however, these audits have begun on a more limited scale. A number of our clients have been randomly selected for an audit. If you receive notification that your organization has been selected for an audit we can help you prepare for the audit.

Fun Fact: In 2018 the MacLeod Law Firm was nominated as one of Canada’s top employment and labour law boutiques by the Canadian Lawyer Magazine and by the Canadian HR Awards.

For almost 30 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him directly at 416-317-9894 or at [email protected]

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

Keeping you Posted on Mandatory Postings in the Workplace

By , November 20, 2018 8:39 am

As an employer, there are several documents that you must post in your workplace. Some postings are mandatory for all workplaces, while others depend on the nature of the business and the hazards present in the workplace.

This blog describes some of these mandatory postings and provides you links to some of these required postings.

Please note that posters that are sold by private companies do not comply with the legal posting requirements, so please make sure that the workplace posters you use are the official and most recent versions.

Employment Standards Act (“ESA”)

All workplaces that are covered by the ESA are required to put up a poster called Employment Standards in Ontario. Developed by the Minister of Labour, this poster provides a high-level summary of employers’ obligations and employees’ rights.

Employers must post the latest version of this poster in an area where it is likely to come to the attention of employees. Further, all employees must be provided with a copy of this poster within 30 days of when they begin working.

Note, this poster is provided in several languages so if English is not the majority language of the workplace, then the poster must also be posted in the majority language –  if made available by the Minister of Labour. Multilingual material can be found on the Ministry of Labour’s website.

Occupational Health and Safety Act (“OHSA”)

Employers that are covered by the OHSA must display this poster titled “Health & Safety at Work: Prevention Starts Here” on the rights and duties of workers and employers. This poster also includes the contact number of the Ministry of Labour that is to be used for reporting work refusals, critical injuries, and fatalities.

Employers must also post a copy of the OHSA in the workplace. This Act contains safety regulations and outlines employee rights and responsibilities. It can be downloaded for free online here or hard copies can be purchased from ServiceOntario for $8 each.

In addition, under OHSA, employers must place the names and locations of their workplace Joint Health and Safety Committee members in a conspicuous place so that it is easy for employees to find. For example, a good location may be the a lunchroom. A committee is required in each workplace that employs 20 or more workers.

If your workplace has more than 6 regularly employed workers, then you must prepare and post policies on health and safety, workplace violence, and workplace harassment. We can help you develop these policies.

If your workplace has fewer than 6 regular employees workers, then there is no obligation to post the above three policies in writing unless ordered to do so by an inspector.

Workplace Safety and Insurance Act (“WSIA”)

Employers that are covered by the Workplace Safety Insurance Act must display the “in case of injury” poster that outlines steps workers need to take if there is an injury at work. The link above is to the newest version of the poster, released September 17, 2018. Although there is no date as to when employers must post this version, it is recommended that employers switch to this new version.

Smoke-Free Ontario Act (“SFOA”)

Employers that have an enclosed workplace or other smoke-free and vape-free places mentioned in the SFOA must post enough individual signs regarding tobacco  and e-cigarettes or the combined version of the tobacco and e-cigarette signs. These signs must be placed at every washroom, entrance, and exit to make sure that all are aware that they cannot smoke tobacco or cannabis or vape anything in these areas.

Areas where individuals are prohibited from holding or smoking lighted tobacco, lighted cannabis, using an e-cigarette, or consuming a prescribed substance in a prescribed manner include an enclosed workplace, enclosed public place, a school, a building of the grounds surrounding the building of a private school, a child care centre, and indoor common areas in buildings or university residences. Indoor common areas include, but are not limited to, elevators, hallways, parking garages, entertainment rooms, laundry facilities, and exercise areas. However, there are exemptions listed in the SFOA that allow a person to smoke or hold lighted tobacco or cannabis or an e-cigarette in an indoor room in a residence that also serves as an enclosed workplace if certain conditions are met.

Other Recommended Posters and Information to Have at the Workplace

Employers who use or store hazardous products at their worksites have additional duties under the OHSA such as ensuring that hazardous products are labeled and obtaining material and safety data sheets for hazardous products. For instance, safety data sheets should be made available in the workplace in order to provide training and instruction for workers.

Finally, to comply with the Accessibility for Ontarians with Disabilities Act (“AODA”), employers with 50 or more employees must develop a Customer Service Policy and an Accessibility Plan. This Policy and Plan are to outline what actions the employer is taking to comply with AODA as well as so employees (and others) know what to expect regarding accessibility.

This Policy and Plan can be posted in the workplace or on the employer’s website or in such a place as is reasonable.

Conclusion

You now have the tools to download, print, and post some of the posters that must be posted in your workplace. Others may be required at your workplace.

If you would like more information on posting requirements about your specific workplace, you may contact an employment lawyer at MacLeod Law Firm. You can reach us at [email protected] or 647-204-8107.

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

“We’re Getting Rid of Bill 148”, says Premier Ford

By , October 3, 2018 10:34 am

After two years of public consultations, the Liberal government introduced many changes to the Employment Standards Act in November 2017 but delayed implementing several of these changes until 2019. The changes were contained in Bill 148.

During the election campaign, Premier Ford said he would stop the $ 1 an hour increase in the minimum wage that is currently scheduled to take place on January 1, 2019. But based on statements he made in the legislature yesterday, it looks like he may be rolling back other Bill 148 changes.

This is yet another example of a government changing the legal landscape at Ontario’s workplaces. Judges and administrative tribunals also impose new obligations on employers each year.

Every two weeks I blog about a recent employment law development but every year I pick three issues that I believe deserve special, in-depth attention.

Our Annual Employment Law Seminar

On October 23rd and October 24th, the MacLeod Law Firm will cover three important workplace issues at half-day seminars in Toronto and Barrie.

What Topics Are We Covering This Year?

(i) The Impact of Legal Recreational Cannabis in the workplace

In about two weeks, the federal government is legalizing the sale of recreational cannabis. Each province is going to decide how to sell cannabis and introduce laws that will prohibit a person from ingesting more than a prescribed amount of cannabis and driving. In the last week, Ontario has introduced such a law. We will discuss the components of a workplace policy that addresses recreational cannabis use.

(ii) Rolling Back Bill 148

Yesterday, Premier Ford signalled that legislation is coming that will roll back some parts of Bill 148. We will discuss the fate of the proposed increase in the minimum wage, recently introduced paid personal emergency leave days, and new scheduling, on call, and pay transparency laws that are scheduled to take effect on January 1, 2019.

(iii) Ontario’s Human Rights Minefield

The Human Rights Tribunal of Ontario has released a number of decisions this year which could significantly impact your employment practices. One decision may force employers to extend group extended medical benefits to employees who are over 65 years old. Another decision will force some employers to change the way they hire employees from different countries. We will discuss what these decisions mean to you.

Click here for more information on this seminar.

Who Should Attend Our Seminar

If you are responsible for HR issues at your workplace or you have to deal with employment issues as part of your job or you are ultimately responsible for paying monies to settle employee complaints, then you will benefit from attending this seminar.

The cost of this seminar is $199 plus H.S.T. To register, please email [email protected] or call 647-204-8107.

For over 30 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him directly at 416-317-9894 or at [email protected]

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

The Cost of Terminating Employees When a Business is Sold

By , April 17, 2018 8:29 am

When a business is sold the cost of terminating unwanted employees can significantly impact the sale price. The purchaser does not want to pay the cost of terminating long service employees, and the seller doesn’t want to incur termination costs which reduces the net sale price.

General Rules on Termination Pay Obligation when a Business is Sold

  1. Under the Employment Standards Act (the “ESA”)

A section in the ESA states that when a business is sold an employee’s service with the seller is deemed to be service with the buyer when the buyer subsequently terminates the employee. So if an employee worked five years with the seller and is terminated six months later by the buyer then the buyer owes the employee five weeks notice of termination; not one week notice.

  1. At Common law

Unless the buyer stipulates otherwise, an employee’s service with the seller is taken into account by the courts when determining common law reasonable notice of termination when the buyer subsequently terminates the employee.

How the Seller of a Business Can Reduce Termination Costs

If you are thinking of selling your business over the next 2 to 3 years then a great way to reduce termination costs is to make sure that all of your employees have signed an employment contract with an enforceable termination clause. This clause can significantly reduce your termination pay obligations for employees you are required to terminate as a condition of the sale.

Existing employees can sign an employment contract but managing this process can be very tricky. We help sellers navigate this legal and HR minefield.

How a Purchaser of a Business Can Reduce Termination Costs

If you are buying a business then a great way to limit liability for termination pay for the employees you inherit from the seller is to require them to sign an employment contract with an enforceable termination clause.

We help buyers prepare employment contracts for the seller’s employees that address employee benefits, vacation, termination pay and other terms of employment that are of interest to the seller’s employees. This is especially important for key employees who are critical to the continued success of the business.

Lessons to Be Learned:

1. The cost of terminating long-term employees can be significant. In fact, in some cases I have seen termination costs eat up most of the sale proceeds.

2. To avoid this situation, termination costs can be reduced by including a termination clause in an employment contract. These contracts can significantly benefit the seller.

3. Often one of the key challenges for the seller is convincing the buyer to take on all employees on substantially the same terms and conditions of employment. We help our clients with this issue.

4. On the other hand, one of the key success factors in a sale of a business for the buyer is retaining certain key employees. Negotiating a “fair” employment contract with these employees can be difficult because these employees have so much bargaining power. We help our clients with this negotiation.

5. Sellers and buyers can benefit from speaking with an employment lawyer well in advance of the sale of a business.

For over 30 years Doug MacLeod has been advising employers on all aspects of the employment relationship. You can contact Doug directly at 416 317-9894 or at [email protected]

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

 

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