Employee, Independent Contractor or something in between?

As an employment law lawyer, one of the most common issues I face is confusion from clients over whether they are (or a particular worker is) an “employee,” or “independent contractor.” It is important to understand how workers are classified, and what that means for them in terms of rate of pay, benefits, and legal protections upon termination. Employers must be diligent in properly classifying their workers, as failure to do so can result in serious penalties and tax consequences.

Employees vs Independent Contractors

Strict definitions for the terms “employee,” “independent contractor,” and “dependent contractor” have not been very useful, so courts have relied upon various common law tests for determining the differences between them. Despite these tests, it is not always easy to determine the proper classification of any individual worker.

Employees

A worker may be an employee under the law even if they have agreed in writing to be classified as an independent contractor, submit invoices, or use their own vehicle while completing work tasks.

If having a contract or submitting invoices doesn’t make someone an independent contractor, what does?

In determining whether a worker is an employee, there is not one single overriding factor. Each worker’s situation will be viewed independently, and several different factors will be weighed. With that being said, a worker may be an employee if some of the following factors describe their work situation:

  • The employer provides all the tools and equipment needed to perform work duties;
  • Pay does not fluctuate according to how quickly or how well work is done. For example, the worker is not paid more if a task is finished by Wednesday, instead of Friday;
  • The employer can discipline or suspend;
  • The worker does not determine what job tasks need to be completed;
  • The worker does not set his own rate of pay for his services;
  • The employer determines the location where work is performed; or
  • The employer determines when tasks need to be completed by.

If a worker is an employee under the law, then she is entitled to all the employment rights and protections found in the Employment Standards Act. These rights and protections include:

  • Minimum wage;
  • Overtime pay;
  • Vacation pay;
  • Protected leave; and
  • Notice, or termination pay in-lieu-of notice.

Independent Contractors

Factors that the Court considers in deciding on the issue are similar, but opposite, to those considerations for employees, and include:

  • The worker owns or provides the tools and equipment needed to perform work duties;
  • The worker is in business for him/her self. This means the worker has the ability to make a profit (if the work is done quickly, efficiently, or inexpensively, for example) but also that their is a risk that he looses money (if, for example, the worker under estimated his costs, or circumstances arise that make the work more expensive than anticipated);
  • The worker may be paid more or less money depending on when the job tasks are completed;
  • The worker can subcontract the job tasks;
  • The employer cannot discipline the worker but he could cancel the contract;
  • The worker can work for multiple organizations at the same time; and
  • The worker exercises some control in where or when work is done and who performs that work.

An independent contractor will not have any of the rights outlined above for employees, unless such rights have been negotiated in a valid Independent Contractor Agreement.

What does the case law say?

In Belton et al. v. Liberty Insurance Company of Canada, the Ontario Court of Appeal heard a case where the classification of insurance agents as employees or independent contractors was the central issue. Mr. Belton, and similar workers, were commissioned sales agents, selling insurance for Liberty Insurance. Each agent had signed a written employment agreement with Liberty Insurance in which they acknowledged they were independent contractors. Liberty Insurance eventually presented the agents with new contracts, which reduced their commission rates and added minimum production levels. The agents refused to sign the new contracts, and Liberty Insurance terminated their employment. The agents sued their employer for wrongful termination. The trial judge concluded that the agents were employees under the law, not independent contractors.

In reviewing this case on appeal, the Ontario Court of Appeal noted that a written agreement stating workers will be classified as independent contractors is not determinative of the proper classification under the law. The Court also outlined the specific factors the trial judge had identified as factors she had weighed in reaching her conclusion:

  1. Whether or not the agent was limited exclusively to the service of the principal;
  2. Whether or not the agent is subject to the control of the principal, not only as to the product sold, but also as to when, where and how it is sold;
  3. Whether or not the agent has an investment or interest in what are characterized as the “tools” relating to his service;
  4. Whether or not the agent has undertaken any risk in the business sense or, alternatively, has any expectation of profit associated with the delivery of his service as distinct from a fixed commission;
  5. Whether or not the activity of the agent is part of the business organization of the principal for which he works. In other words, whose business is it?

The Court of Appeal acknowledged, as the Trial Court had, that there was no direct contact allowed between the agents and their customers regarding policy changes or renewals, all of the agents had Liberty Insurance managers, the agents were not permitted to advertise using Liberty Insurance’s name, and the agents did not have any ownership rights to their customers. Therefore, that the agents were employees of Liberty Insurance, not independent contractors.

Dependent Contractors

The courts have more recently recognized a middle ground between employee and independent contractor by the classification of some workers as “dependent contractors.”

It is important to note that the courts are not creating an entirely new third category of workers with this distinction. Instead, dependent contractors are considered a subset of “contractors,” who merit different treatment upon termination than independent contractors do.

In McKee v. Reid’s Heritage Homes Ltd., the Court of Appeal heard a case which illustrates this distinction. Heritage Homes, owned by Reid, entered into a written independent contractor agreement with Nu Home Consultant Services, which was operated by its owner McKee. McKee was to advertise and sell 69 homes for Reid, for a fee of $2,500 per home sold. Reid was to have sole use of McKee’s services until the relationship ended. The 69 homes were quickly sold, and the contractual relationship continued. The relationship even continued after Reid’s death, at which time his son-in-law, Blevins, succeeded him.

Blevins eventually decided that McKee and her sub-agents should have to work as direct employees. McKee requested the new employment agreement be put in writing, but the parties were never able to reach mutually agreeable terms. The employment relationship subsequently ended, and McKee sued for wrongful termination. After examining the relevant factors, the trial court found McKee to be an employee, and awarded her eighteen months of termination pay in lieu of notice.

In reviewing this case, the Court of Appeal looked at the classifications of employees, independent contractors and dependant contractors:

I conclude that an intermediate category exists, which consists, at least, of those non-employment work relationships that exhibit a certain minimum economic dependency, which may be demonstrated by complete or near-complete exclusivity. Workers in this category are known as “dependent contractors” and they are owed reasonable notice upon termination.

The Court of Appeal went on to explain that the first step “is to determine whether a worker is a contractor or an employee.” If the first step determines the worker to be a contractor, then step two “determines whether the contractor is independent or dependent, for which a worker’s exclusivity is determinative, as it demonstrates economic independence.”

The courts have made it clear that dependent contractors are entitled to reasonable notice, or termination pay in lieu of notice. The length of notice can be specified in an employment agreement. If there is not a valid employment agreement speaking to this issue, then the length of appropriate notice will vary on a case by case basis, determined by the weighing of several factors.

Final Thoughts

It can often be difficult to determine how a worker should be classified. There are great differences in these classifications, and those differences can have a huge impact on both employees and employers.

The fact is that that vase majority of workers classified by their employers as independent contractors are not. If you are a worker, you are probably not an independent contractor. If you are an employer, that person coming into your workplace everyday is probably an employee. Regardless of what your contract may say, a Court may decide that the worker is entitled to all the protections in the Employment Standards Act.

For employees, if you have concerns that you have been improperly classified, speak to a knowledgeable Ontario employment lawyer as soon as possible. The lawyer can go over the specific details of your employment situation and give you advice on which classification is the most appropriate for you. With this information, you will know what rights are due to you while still employed, and also at the end of the employment relationship.

For employers, I also recommend speaking to an employment lawyer if you have concerns about the proper classification of your workers. Failure to properly classify workers can result in serious penalties. You may be stuck with large severance payments because your improper classifications caused you to fail to meet the notice requirements. If workers are properly classified, these are issues that can be specified to in a written employment contract. This limits your overall exposure. A lawyer well-versed in such employment issues can help you make the best decisions for your business.


Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btlegal.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

Employment Law for Bartenders, Waiters and Waitresses

Bartenders, waiters and waitresses, or “Liquor Servers” as they are referred to in the Employment Standards Act (“ESA”), are given special treatment under the law and by the Ontario Courts. While many of the ESA’s provisions apply equally to all types of employees, there are some important distinctions for liquor servers that hospitality employees and employers should know. This article is meant to highlight some of those important differences.

Minimum Wage

As of January 1, 2018, minimum wage for most workers in Ontario was increased to $14.00 per hour. However, the ESA permits lower minimum wage rates for certain designated groups of workers who receive tips as a significant portion of their income. Liquor servers fall into this category. Since January of 2018, the minimum wage rate for liquor servers is $12.20 per hour.

While the terms “Liquor Server” or “Bartender” are not specifically defined in the ESA, the relevant section on minimum wage provides helpful insight into whether an employee’s minimum wage rate can legally be lowered to $12.20 per hour. The ESA states as follows:

Determination of Minimum Wage
23.1 (1) The minimum wage is the following:
1. On or after January 1, 2018, but before October 1, 2020, the amount set out below for the following classes of employees:
ii. For employees who, as a regular part of their employment, serve liquor directly to customers, guests, members or patrons in premises for which a licence or permit has been issued under the Liquor Licence Act and who regularly receive tips or other gratuities from their work, $12.20 per hour. [emphasis added]

Minimum Wage After October 2020

As suggested in the above section, after October of 2020, the minimum wage rate for liquor servers will increase in accordance with a formula based on the Consumer Price Index. This formula is as follows:

Previous Wage × (Index A/Index B) = Adjusted Wage

In which:

“Previous wage” is the minimum wage rate that applied immediately before October 1st of the year;

“Index A” is the Consumer Price Index for the previous calendar year;

“Index B” is the Consumer Price Index for the calendar year immediately preceding the calendar year mentioned in the description of “Index A;” and

“Adjusted wage” is the resulting new minimum wage rate.

Termination, Reasonable Notice, and Wages

Like all employees in Ontario, liquor servers are entitled to a certain amount of notice, or pay in lieu of notice, when their employment is terminated.

That being said, for liquor servers, more often than not a significant portion of their income comes in the form of tips. Therefore, the biggest question I get as a Toronto employment lawyer, from both employees and employers, is whether tips should be included as wages for the purpose of pay in lieu of reasonable notice. The answer to that questions depends significantly on whether the bartender or liquor server has a valid employment contract that limits notice only to those minimums under the ESA.

Under the ESA, Wages Do Not Include Tips

Under the ESA, generally when an employer terminates an employee who has been continuously employed for at least 3 months, the employer must provide the employee with notice, or pay in lieu of notice. This pay in lieu of notice is often referred to as “termination pay.” The amount of written notice required by the ESA is as follows:

Employment Period Notice Length
3 months – less than 1 year 1 Week
1 year – less than 3 years 2 Weeks
3 years – less than 4 years 3 Weeks
4 years – less than 5 years 4 Weeks
5 years – less than 6 years 5 Weeks
6 years – less than 7 years 6 Weeks
7 years – less than 8 years 7 Weeks
8 years or more 8 Weeks

If an employee, by an enforceable employment contract, is only entitled to the minimums under the ESA, then that worker may NOT be owed tips. Wages under the ESA are defined as:

“Wages” means:
(a) monetary remuneration payable by an employer to an employee under the terms of an employment contract, oral or written, express or implied,
(b) any payment required to be made by an employer to an employee under this Act, and
(c) any allowances for room or board under an employment contract or prescribed allowances,
but does not include,
(d) tips or other gratuities,
(e) any sums paid as gifts or bonuses that are dependent on the discretion of the employer and that are not related to hours, production or efficiency,
(f) expenses and travelling allowances, or
(g) subject to subsections 60 (3) or 62 (2), employer contributions to a benefit plan and payments to which an employee is entitled from a benefit plan. [emphasis added]

Without an Enforceable Termination Clause, Tips Are Owed as Part of Termination Pay

Without an enforceable clause in an employment contract which limits reasonable notice to only the ESA minimums, the Ontario Courts ignore the strict wording of the ESA and require employers to pay tips as part of wrongful termination pay.

We can see an example of this in the case of Giacomo Violo v. Delphi Communications, Incorporated. Violo had worked as a waiter and bartender for a small restaurant in Ontario for 29 years. At the time of his termination, he was 51 years old. The parties did not have an employment contract, and the restaurant contended that Violo had been legally terminated due to excessive tardiness, alcohol abuse, and discourteous behaviour. After examining the evidence, including work records from the defendant and testimony from current employees, the Court determined that “there was no cause for the plaintiff’s dismissal.” The Court then turned to the issue of determining the reasonable notice period Violo was due. After examining numerous factors, including Violo’s age and the availability of similar jobs at the time he was terminated, the Court determined Violo was entitled to a reasonable notice period of 15 months. The Court then addressed the issue of damages, noting that tips would be factored in as such wages constituted a significant portion of his overall income: “… in 2010 he claimed $9,025 in tip income, almost as much as his income from wages.” In total, Violo was awarded $45,250, representative of his base salary and tips over the course of the 15 month notice period.

Final Thoughts

For employers, it is important to have a valid written employment contract with all bartenders, waiters, and waitresses. While the amount of notice cannot be below the minimum amount required by the ESA, employers can fashion contracts which provide for less notice than the employee would otherwise be entitled to at common law. When it comes to employees who receive customary tips, this can mean a substantial difference in the amount of termination pay. If you need assistance drafting employment contracts, we strongly recommend that you speak to an experienced employment attorney for guidance and assistance.

For terminated employees who received tips as a significant portion of their overall income, it is crucial to remember that they likely have rights under the common law that are far greater than the rights afforded to them under the ESA. It may be best for liquor servers and waitresses to sue their former employer in court for “wrongful dismissal,” seeking additional damages which would include tips. If you have been recently terminated from a position where you received tips as part of your income, we suggest that you speak to an employment attorney to help you determine the best course of action for your situation.


Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btlegal.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

Workplace Harassment, Health and Safety

All workers should have the ability to complete their job duties in a safe work environment. Unfortunately, workplace harassment is a very real problem that many workers have to face. In the past, workplace harassment was largely governed by Section 5(2) of the Human Rights Code, and common law rules of contract. However, in December of 2017, expansive changes were made to the Ontario Occupational Health and Safety Act (the “OHSA“), making it the cornerstone of workplace legislation. The OHSA now sets out the rights and responsibilities of all parties in a workplace, including both employers and employees. Notably, the OHSA is not limited to specific grounds of discrimination, such as age, sex, or national origin. Thus, employers are now required to have a policy which generally addresses harassment in all its forms and from all people.

Workers can face harassment in any workspace, from any individual, in a variety of ways. While the harassing individual might be a fellow employee, supervisor, or owner, the individual does not necessarily have to be someone employed by the employer. The harassing individual may be someone that the worker is required to interact with during the course of completing her job tasks. For example, interacting with a customer or a patient. The harassing individual might not have any professional connection to the workplace, such as a domestic partner of a fellow employee.  The OHSA defines a worker’s workplace as “any land, premises, location or thing at, upon, in or near which a worker works” (section 1). The range of unwanted behaviours can vary from offensive statements all the way to physical violence.

Workplace Harassment

The OHSA defines workplace harassment as “engaging in the course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome” (section 1.5(a). This definition also includes workplace sexual harassment. When we hear the word “harassment,” often scenes of physical violence or unwanted touching come to mind. However, workplace harassment also includes psychological harassment.

Workplace harassment can take many forms, but typically involves unwelcome words and/or actions that are known, or should be known, to be offensive, humiliating, or demeaning. Workplace harassment can also include behavior that intimidates a worker. Common examples include:

  • Making offensive or intimidating remarks and/or jokes;
  • Displaying or circulating offensive or intimidating pictures or written material;
  • Making offensive or intimidating phone calls;
  • Sending offensive or intimidating text messages or e-mails; or
  • Making unwanted sexual advances. See my earlier article on Sexual Harassment in Ontario for more information on that topic.

In most situations, the unwanted conduct occurs more than once. The offensive behaviour might take place over the course of a day, or over weeks or months. For example, a fellow employee who sends several racially offensive e-mails to another employee is most likely engaging in workplace harassment. While less common, it is possible that the offensive conduct only occurs once. For example, one unsolicited sexual advance from a manager towards an employee.

While the OHSA gives employees experiencing workplace harassment greater protections, it does not provide such an individual with the right to refuse to work, as one would have if she had reason to believe she may be endangered by workplace violence. Workplace harassment can easily escalate to threats of, or actual, physical violence. It is vital therefore that employers and employees work together to address and deal with workplace harassment properly before the situation turns into workplace violence.

Workplace Harassment Policy

The OHSA requires that employers prepare a policy on workplace harassment, and review the policy, at minimum, on a yearly basis. This is a requirement for all employers, regardless of size or number of workers. If there are six or more workers regularly employed, this policy must be in writing and be placed in a conspicuous location within the workplace. The workplace harassment policy should contain several pieces of information, including but not limited to:

  • Language on the employer’s commitment to properly handling workplace harassment;
  • A statement concerning the various sources workplace harassment may stem from, such as supervisors, fellow employees, customers, and domestic partners; and
  • Details concerning the responsibilities of each individual in the workplace in addressing workplace harassment.

The workplace harassment policy should encourage workers to report any and all harassment concerns they have. Once the policy is completed, it should be dated and signed by the highest level of management, such as the President or Chief Executive Officer.

Workplace Harassment Program

In addition to the workplace harassment policy, the OHSA requires employers to develop a program to implement the policy. This program must be developed in consultation with the joint health and safety committee or health and safety representative. Once completed, this program must be put in writing. This program must comprise several components, including but not limited to:

  • Procedures for workers to report workplace harassment to the employer or supervisor;
  • Procedures for workers to report workplace harassment to someone other than the employer or supervisor in the event the employer or supervisor is the alleged harasser;
  • Details on how the reported complaints of workplace harassment will be handled and investigated;
  • Details on how disclosure of identifying information will be handled; and
  • Details on how the individual who reported the workplace harassment will be informed of the results of the investigation and of any corrective action.

Once a harassment policy and program have been established, the OHSA requires the employer to provide appropriate instruction to all workers on their contents. Under the OHSA, workers include not only full-time employees, but also part-time, contract, and temporary employees.

Final Thoughts

While implementation of the OHSA’s requirements, including creating a workplace harassment policy and program, have made great strides in curbing workplace issues, it is important to remember that even the best efforts will not be able to solve every situation. Workplace harassment can all too easily turn into violence. The police should be immediately contacted if a threat of violence, or an act of violence, has taken place in the workplace.

The OHSA is also a complex piece of legislation, and failure to follow the appropriate requirements and measures can be costly mistakes for employers. If you are an employer and need help in determining your compliance requirements, we recommend that you consult with a lawyer. If you are an employee who has experienced unwanted workplace conduct, we also recommend that you consult with a lawyer to help protect any rights that may be available to you.


Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btlegal.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

How to Change Employment Contracts

Anytime you ask an existing employee to sign a new employment contract, it’s important to proceed cautiously. There are risks and pitfalls that wary employers may wish to avoid when making a change to their employment contracts. A misgauged approach may result in an unenforceable contract, or worse, result in a costly claim of constructive dismissal.

As set out below, the Ontario Courts have clarified generally two methods to change employment contracts. The first method is for when an employee consents and agrees to the changes, and the second is how to change employment contracts when the employee refuses.

Read more

Hours of Work and Breaks

The Law about Hours of Work

In Ontario, the Employment Standards Act (“ESA”) sets out the maximum daily and weekly limits on the hours of work. In general, the maximum number of daily and weekly hours are:

  • Eight (8) hours in a day or, if the employer establishes a regular work day of more than eight hours, the number of hours in its regular work day; and,
  • 48 hours of work per week.

An employee’s daily hours of work may exceed the maximum limits in the ESA if the employer and employee agree in writing. Likewise, an employee’s weekly hours of work may exceed the maximum limits if (a) the employee agrees, and (b) the employer obtains approval from the Director of Employment Standards. In addition to the employee’s agreement and the Director’s approval (for excess weekly hours), an employer must provide the employee with the most recent documents published by the Director of Employment Standards on Hours of Work.

If you are looking to apply to the Director of Employment Standards for excess weekly hours, or any reason, please do not hesitate to reach out to me.

Rescinding an Agreement for Excess Work

An employee can revoke an agreement to work excess hours on two weeks notice to the employer. An employer can revoke an agreement to work excess hours on reasonable notice to the employee.

Hours Free from Work

In general, an employee must receive at least:

  • eleven (11) consecutive hours off work each day;
  • eight (8) hours off work between shifts (if combined shifts exceed thirteen (13) hours);
  • either twenty-four (24) consecutive hours off work every week, or forty-eight (48) hours off work in every consecutive two-week period;

Daily Rest: the 11 Hour Rule

The daily rest requirement is mandatory. An employee and an employer cannot agree to less than eleven (11) consecutive hours off work each day. This maximum applies even if there is an excess daily hours of work agreement or an excess weekly hours of work agreement approved by the Director of Employment Standards.

This rule does not apply, however, to an employee who is on call and called in during a period in which the employee would not otherwise be expected to perform work for his or her employer.

It also does not apply in “exceptional circumstances”. The exceptional circumstances exception only applies if the employee is required to avoid serious interference with the ordinary working of the employer’s establishment or operations:

  • To deal with an emergency.
  • If something unforeseen occurs, to ensure the continued delivery of essential public services, regardless of who delivers those services.
  • If something unforeseen occurs, to ensure that continuous processes or seasonal operations are not interrupted. or,
  • To carry out urgent repair work to the employer’s plant or equipment.

Breaks and Lunch

Eating Periods, a.k.a. Lunch Breaks

An employer must provide an employee with an uninterrupted 30-minute eating period (lunch break) at intervals to ensure that the employee goes no more than five consecutive hours of work without a break to eat. If an employee and an employer agree, then the employee can be given two eating periods (i.e. two 15-minute breaks) in each consecutive five-hour period.

Unless the employee’s contract says otherwise, lunch breaks are unpaid. Further, lunch breaks are not included for the purpose of calculating hours of work, rest provisions, overtime pay or minimum wage entitlements under the ESA.

Coffee and Other Breaks

Besides eating periods, employees are not entitled to any other breaks.

If an employer elects to give other breaks to an employee then that break must be paid and included in calculating hours of work, rest provisions, overtime pay or minimum wage entitlements under the ESA, unless that employee is not required to remain at the place of employment.


Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btzlaw.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning Zibarras LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

Sexual Harassment at Work

Sexual harassment at work have severe consequences for the  victim, accused, and employer and contribute to a hostile, intimidating, and offensive working environment which can affect the quality of work and productivity. It is incumbent of all employees, managers, leadership, and owners to prevent, punish, report and discourage such workplace conduct.

What is Sexual Harassment?

Sexual harassment is verbal or physical conduct of a sexual nature which can effect another person’s dignity and interfere with their work. It refers to a form of discrimination that comprises of any unsolicited comments, conduct, or behavior concerning sex, gender, or sexual orientation. It typically encompasses objectionable and offensive behavior which may occur once or repeatedly.

Harassment can be expressed directly in face-to-face interactions, indirectly behind the targets back (such as spreading sexual rumors), or via electronic messages sent to the victim. Anyone, male or female, can be a victim. However, women are much more likely to be victims of sexual harassment than men, according to the Ontario Human Rights Commission.

Further, sexual harassment can occur no matter one’s seniority. Those people in leadership positions are just as capable of being harassed as more junior employees. By way of example, allegations that a woman in a position of authority slept her way to the top are too common and always inappropriate. Such allegations, even when baseless, tend to lessen the victim’s authority, dignity, and reputation.

While sexual harassment in the workplace is a widespread problem across all industries, some sectors are more prone to sexual harassment than others. Per the Ontario Human Rights Commission, jobs with a higher proclivity to sexual harassment include:

  • Heavily male-dominated occupations such as military, construction, policing, manufacturing, etc.
  • Jobs that involve a great deal of subservient activity such as nursing, waitressing, secretary jobs, flight attendant jobs, etc.
  • Occupations that require working in isolation such as live-in caregiver jobs.

What Kinds of Behavior Constitute Sexual Harassment?

The kinds of behavior that could constitute sexual harassment can vary depending on the circumstances and people involved. According to the Ontario Human Rights Code, some of the conducts that could be considered sexual harassment include:

  • A person bragging about how good they are in bed
  • Displays of explicit material
  • Making sexual jokes
  • Making unwelcome sexual comments about a person’s appearance, body parts, or clothing
  • Demanding hugs
  • Repeated requests for a date with a subordinate, boss, or co-worker
  • Sharing sexually inappropriate content, images, or videos with co-workers
  • Displaying sexual posters or pictures in the office
  • Making offensive comments that are sex-specific
  • Staring at a co-worker in a sexually suggestive or offensive way
  • Touching a co-worker in inappropriate places
  • After hours unwanted interactions by a supervisor

Impacts of Sexual Harassment on Workers and the Work Environment

Sexual harassment at work can have many consequences both for the victim who is facing harassment and for an employee who is indirectly but negatively affected by the bad behavior. This is because the workers who experience sexual harassment secondhand can become demoralized or intimidated at work.

Impact on Victims

In some cases, a victim of sexual harassment risks:

  • Emotional and physical impact: Sometimes, a victim of sexual harassment become so traumatized by the harassment that they suffer serious emotional consequences such as emotional and mental stress, as well as anxiety. Acts of sexual harassment can undermine a person’s sense of personal dignity and can prevent them from being able to perform their job properly.
  • Job loss: A worker who refuses to go along with the sexual demands of a superior or co-worker risks being fired even though the organization might use some other excuse. For instance, an employee who is temporarily unable to work or fail to give their best due to harassment might be fired on the grounds of unsatisfactory performance even though it’s still clearly related to bullying.
  • Loss of wages and other benefits: Victims who resist sexual advances from their supervisor suffer unfavorable job-related consequences such as demotion, not getting promoted, and loss of economic benefits like medical benefits, pension contributions, sick pay, etc.
  • Constructive dismissal: Sexual harassment may be considered constructive dismissal. It is important to speak with an employment lawyer if you are being sexually harassed at work.

Impacts of Sexual Harassment to Organization

Sexual harassment can impact a company negatively through:

  • Decreased productivity: Hostile working environment often leads to low employee morale, absenteeism, animosity, stress, and anxiety. These reduce performance and ultimately result in low productivity.
  • The unwelcome behavior of sexual predators in the workplace can negatively affect the work setting by creating an intimidating, hostile, degrading, humiliating or offensive environment. Such a situation can put pressure on a victim to leave the job.
  • High employee turnover: Workers who are targets of sexual harassment and witnesses of sexual harassment may have to quit to get away from threatening settings. This lead to high employee turnover, which may result in increased hiring and training costs.
  • Litigation costs: The Ontario Human Rights Commission and the Ontario Courts regularly litigate complains of sexual harassment. Defending these claims is often time consuming and expensive.
  • Public Image Costs: With the #MeToo movement at its height. Employees, no longer ashamed or embarrassed, often take to social media or the court of public opinion to attack employers who condone poorconduct.

How Employers Can Prevent and Respond to Sexual Harassment in the Workplace

Employers are encouraged to undertake all necessary measures to eliminate sexual harassment from the workplace and create a healthy positive work environment. The Ontario Human Right Commission recommends having anti-harassment programs that help create a work environment where every employee will feel welcomed.

This can be achieved by:

  • Defining what constitutes harassment and stating that harassment is not tolerated
  • Communicating the punitive consequences of harassment in the workplace
  • Revealing the harassment reporting system with an appointed HR staff for reporting claims
  • Making all employees aware that retaliation against employees reporting bullying is not allowed
  • Outlining the investigation and redress process

Employers should hold workers, and themselves, to high standards. Doing so will help create a positive and inclusive work setting.


Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btzlaw.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning Zibarras LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

Video Cameras in the Ontario Workplace

Increases in affordability and availability have made video cameras ubiquitous in both public and private places across Ontario. More so than ever before employers are installing cameras in the workplace.

Video camera surveillance raises interesting employment law issues for both employees and employers. While video cameras are common place in retail stores, banks, manufacturing facilities and casinos, what about in an office environment? Or in a break room? Does an employer have to tell its employees about surveillance cameras or can they be hidden?

Right to privacy at work

The Ontario Courts have commented that the Ontario legislature “has not gone very far in safeguarding an employee’s right to privacy in the workplace.” In Ontario, there is no specific privacy legislation aimed at the private sector. Neither the Employment Standards Act nor the Occupational Health and Safety Act make any mention of an employer’s obligation or the employee’s rights regarding privacy. Only Canada’s Personal Information Protection and Electronic Documents Act (“PIPEDA”) applies.

PIPEDA requires a genuine purpose for video camera surveillance in the workplace. Or, in other words, a purpose that a “reasonable person would consider appropriate in the circumstances.” The test set out by the Office of the Privacy Commissioner of Canada (the “OPCC”) to determine the appropriateness for video camera monitoring is as follows:

  1. Is the camera demonstrably necessary to meet a specific need?
  2. Is it likely to be effective in meeting that need?
  3. Is the loss of privacy proportional to the benefit gained?
  4. Is there a less privacy-invasive way of achieving the same end?

Although its aimed at public institutions, the OPCC publishes some very instructive examples:

  • “A minor offence such as littering would, in general, not be considered a substantial or pressing problem. It would, therefore, not meet the required criteria to justify the use of video surveillance.”
  • “A dimly lit area of a public school has been the site of ongoing vandalism and violence. Before considering video surveillance, the school should evaluate the effectiveness of less intrusive alternatives such as increased lighting and foot patrols.”
  • “A video camera that monitors a parking lot indirectly captures information about adjacent properties. To limit the amount of personal information collected by it, the camera is set up to automatically avoid or black out any area or property adjacent to the parking lot.”

Legitimate purpose can be to ensure the safety and security of customers and employees, reduce or deter illegal conduct, or to reduce the risk of legal liability.

Employers must balance the need for video surveillance vs employees’ right to privacy

For purposes of deterring theft, vandalism, assault and sexual harassment, surveillance cameras may be permitted. In grocery stores, banks, manufactories, retail or restaurants, where cash and inventory are stored, there is a reasonable purpose for having cameras. Further, for employees who work in public facing places, such as at reception of a business, there may be no reasonable expectation of privacy in the first place.

On the other hand, in private locations such as washrooms and lunch or break areas it is reasonable for both employees and customers to expect privacy.

In the case of Colwell v. Cornerstone Properties Inc., Ms. Colwell sued for constructive dismissal after her employer installed a secret hidden camera in her private office. The Court did not expressly address whether video cameras are permitted in the office, but instead found that the placement of the hidden cameras, and subsequent lies, violated the implied contractual term of employment, that “each party would treat the other in good faith and fairly”, and poisoned the work environment. Subsequently the Courts have stated that “the placement of a video camera in an employee’s office without his or her knowledge is a serious and intrusive violation of the employee’s privacy.”

Video cameras may be permitted in an office if employees are informed

In a decision from February, 2018, Rouse v. Drake & Drake, Justice Conlon dealt with a wrongful dismissal action of a hygienist from a Dental Office. In this case, Ms. Rouse made her dislike for the surveillance cameras clear prior to, during, and after their installation. She was found by the Court to have “deliberately manipulated the security cameras.” The Court considered her intentional conduct, in rendering the surveillance camera in her office ineffective, as one of the factors that could justify a termination for cause. Ultimately, however, the Court decided for other reasons that there was not cause for her termination.

Audio recording is not permitted

Did you know that Amazon’s Echo can be set up to allow listening in on conversations in other rooms. Amazon calls this feature “drop in”. Given how accessible devices like these are, what is an employees reasonable expectation of privacy, when it comes to their conversations around the office?

In terms of audio recording, employers could find themselves criminally liable under section 184 of the Criminal Code if they are intercepting private conversations unless one or more of the participants consents. Practically speaking this means that conversations between employees cannot be recorded.

Take away

Video cameras can be used in Ontario Workplaces to record video, but not audio, so long as there is a genuine purpose for doing so and employees are informed. Employers should publish and circulate to their employees a video surveillance policy containing guidelines and procedures for the collection, use, and disclosure of the information obtained by video surveillance and publish signage to remove any reasonable expectation of privacy.

In addition, employers should take measures to ensure the recorded images are stored securely, with limited access, and regularly destroyed or deleted.


Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btzlaw.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning Zibarras LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

Equal Pay in the Ontario Workplace

Over the past 30 years there has been a gradual progression to establish equal pay in the Ontario Workplace. For employers and human resource managers it’s important to recognize what your obligations are concerning equal pay and that these obligations are increasing.

The Pay Equity Act

For its time, the Pay Equity Act was revolutionary. Enacted in 1987, it requires equal pay between the sexes, not within one job classification, but for work of all job types that are of equal value. The classic example is the receptionist (which is female dominant) and the warehouse worker (which is male dominant). Both jobs are of equal value but the male dominant role is typically paid more.

The Pay Equity Act requires employers to assess the value of each job class and assign it a value based on the following factors:

  1. What qualifications are required?
  2. How much responsibility does the job class require?
  3. What level of effort is required (physical and mental)?
  4. What are the working conditions like (physical danger, stress-level, customer facing)?

If upon completing this analysis, two jobs are of equal value to the company then those jobs should be equally paid.

Equal Pay Under the Employment Standards Act

While the Pay Equity Act legislates equal pay for different work but of equal value, the Employment Standards Act (“ESA”) mandates that employers pay equally for work that is substantially the same. If two employees engage in work that requires the same skill, effort, responsibility, under the same working conditions and in the same establishment, those employees should be equally paid.

The equal pay provisions of the ESA extend beyond gender discrimination to employment status. Since April 1, 2018, employers must not only pay males and females equally, but part time, temporary and seasonal workers must be paid the same as full time workers so long as they are performing substantially the same job.

There are exceptions, however. differences in pay are permitted so long as they are the result of:

  1. a seniority system – a system that pays employee based on length of service;
  2. a merit system – a system that pays employees based on merit: their skills, education, competence, etcetera;
  3. a system that measures earnings by quantity or quality of production – a piecemeal system or similar; or
  4. any other factor other than sex or employment status.

I wrote about the new Equal Pay provisions in the ESA as the changes were taking effect at the beginning of April. Read more details about this section in my post Equal Pay for Part Time Work begins April 1, 2018

Employers should be careful to ensure that any system they are using to determine employee pay is being implemented fairly and communicated to employees in advance. Any measurements of quantity or quality should to the greatest extent possible be objective and recorded.

Further, the ESA considers hourly/salary pay, along with overtime and commission. It does not however, specifically discuss whether it includes benefits, stock options or bonuses. Nevertheless, it may be prudent to consider how these extras are distributed to employees and ensure they are done so fairly.

Bill 203, the Pay Transparency Act, 2018.

On April 26, 2018, the Ontario legislature passed the Pay Transparency Act, 2018. This Act continues the Ontario governments trend towards pay equalization by establishing requirements for employers on disclosing compensation information of employees and prospective employees. Ontario is the first province in Canada to have legislation of this kind.

The major pillars of this legislation are as follows:

  1. Employers will be prohibited from asking for or seeking out information on what a prospective employee was or is being paid;
  2. Employers will be required to include expected compensation or range of compensation in any publicly advertised job posting; and
  3. Certain employers (likely those with a larger payroll) will be required to prepare and post publicly “pay transparency reports.” These reports are to include anonymized wage data with respect to gender and other prescribed characteristics, specifically information about the employer, the employer’s workforce composition, and differences in compensation in the employer’s workforce.

These transparency measures come into force and effect on January 1, 2019. The same day as the $15 minimum wage. Employers with more than 250 employees will have to submit their first pay transparency report by no later than May 15, 2020. Employers with between 100 and 249 employees will have submit their first pay transparency report by no later than May 15, 2021.

The Human Resources Take Away

Employers of all sizes need to consider whether they are maintaining pay equity and equal pay in accordance with the Pay Equity Act and the ESA. With the recent increase to minimum wage and the new April 2018 equal pay requirements, now is the right time to review employee wages across the board and ensure there is no unintended breaches of these Acts.

There is also a need to prepare for the Pay Transparency Act. Even if it may not immediately apply to smaller employers, it may be a good corporate practice to implement.

Leslie Dizgun, the co-author of this article conducts a sophisticated commercial litigation and employment law practice at the law firm of Brauti Thorning Zibarass LLP. For further information on this topic, Leslie’s contact information can be found online at BTZLaw.ca

This post has been republished by HR Insider. If you’re a subscriber to HR Insider you can see the article there at: https://hrinsider.ca/equal-pay-in-the-ontario-workplace/ 


 

Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btzlaw.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning Zibarras LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

“My Boss Got Naked in Front of Me on a Work Trip”

While exploring one of the legal forums I frequent, a person posted a question about an incident that occurred on a work trip with his boss:

I recently went on a business trip with my employer and many other employees, and I spent the night in a hotel room with my employer (just me and him in this two-bed room). While I was laying in bed reading with the lights on, he walked out of the bathroom naked to get something from his suitcase. He knew I was in the hotel room before he stepped into the bathroom.

I commented that I was uncomfortable seeing him naked, and he apologised and went back to the bathroom. He could clearly see that I was in the room (in full sight of him), and did seem phased that I saw him naked until I commented about it.

We are both male, and he only recently found out that I am homosexual (he is openly homosexual as well). 12 people went on this trip in total (2 per room) and he made the room arrangements.

He has previously invited me to go to the bar with him for drinks. I said no to this and he hasn’t asked again.

I would like to know if this constitutes workplace harassment.

Are you shouting at the screen “Yes! This must be sexual harassment”? Are you all ready to retweet #MeToo? Well, I wouldn’t necessarily jump to that conclusion.

Workplace harassment is governed by the Ontario Occupational Health and Safety Act RSO 1990 c O-1 and is defined as follows:

“workplace harassment” means,

(a) engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome, or

(b) workplace sexual harassment; (“harcèlement au travail”)

“workplace sexual harassment” means,

(a) engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or

(b) making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome;

The Ontario Human Rights Tribunal gives these examples of sexual harassment:

  • demanding hugs
  • invading personal space
  • unnecessary physical contact, including unwanted touching, etc.
  • using language that puts someone down and/or comments toward women (or men, in some cases), sex-specific derogatory names
  • leering or inappropriate staring
  • making gender-related comments about someone’s physical characteristics or mannerisms
  • making comments or treating someone badly because they don’t conform with sex-role stereotypes
  • showing or sending pornography, sexual pictures or cartoons, sexually explicit graffiti, or other sexual images (including on-line)
  • sexual jokes, including passing around written sexual jokes (for example, by e-mail)
  • rough and vulgar humour or language related to gender
  • using sexual or gender-related comment or conduct to bully someone
  • spreading sexual rumours (including on-line)
  • making suggestive or offensive comments or hints about members of a specific gender
  • making sexual propositions
  • verbally abusing, threatening or taunting someone based on gender
  • bragging about sexual prowess
  • demanding dates or sexual favours
  • making offensive sexual jokes or comments
  • asking questions or talking about sexual activities
  • making an employee dress in a sexualized or gender-specific way
  • acting paternally in a way that someone thinks undermines their self-respect or position of responsibility
  • threats to penalize or otherwise punish a person who refuses to comply with sexual advances (reprisal or “payback”).

The conduct of this employer may not clearly rise to the level of harassment. Inviting a subordinate to drinks isn’t inappropriate on its face and this boss stopped pressing once he was told no. Likewise, the incident on this business trip may simply have been a potential hazard of same-sex lodgings. This employee told his boss that it made him uncomfortable and the boss apologized and went back into the bathroom. At worst, this was a clumsy attempt at starting a sexual relationship with this employee. But, there is no mention of any conduct by this employer trying to steer conversations towards sexual subjects, making suggestive or lewd comments, pressuring this employee into initiating a sexual encounter, or threats or acts of reprisal.

In a situation like this, I would recommend the employee approach the employer, after the trip and back in the workplace, to explain that this made him uncomfortable, and that, as a result, he would prefer not to lodge with him again. He may want to follow this up with an email to keep a record.

 


Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btzlaw.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning Zibarras LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

How quickly must I sue after being fired?

The limitation period for Ontario Employment Law disputes is governed by the Limitations Act, 2002. Under the Limitations Act all wrongful dismissal claims must be brought with in 2 years of the date the claim was discovered. Discovery has a very specific meaning:

Discovery
5 (1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

If a claim is not brought within the limitation period than in almost all circumstances the employee forever loses the opportunity to sue for wrongful dismissal or termination pay.

Limitation Period for Wrongful Dismissal Claims

In the employment law contact, the recent case of Bailey v Milo-Food & Agricultural Infrastructure & Services Inc., 2017 ONSC 1789, states:

[44] The leading case in Ontario on the commencement of the limitation period in a wrongful dismissal action is Jones v. Friedman, 2006 CanLII 580 (ON CA) (“Jones (CA)”). In that decision, the Ontario Court of Appeal held at para. 4 as follows:

A limitation period commences when the cause of action arises. In a breach of contract, the cause of action arises when the contract was breached. For the purposes of a wrongful dismissal action, the employment contract is breached when the employer dismisses the employee without reasonable notice

In ordinary circumstances this means that a wrongful termination claim is discovered on the date the employee first receives notice of termination. Not the date that the employee’s employment ended.

While there are some dissenting cases, such as the decision of Justice Pitt in Webster v Almore Trading & Manufacturing Co, 2010 ONSC 3854, it would be prudent for any lawyer or plaintiff to ensure that their wrongful dismissal lawsuits are started within two years of notice of termination.

Although there is an argument to be made that the limitation period should not start until after notice is given, you do not want to be in a position where you have to make that argument before a Judge.


Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btzlaw.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning Zibarras LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.