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.

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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.

Marijuana at Work after Legalization

The Canadian and Ontario governments have now announced the Rules and Regulations for marijuana, which is set to become legal across Canada for recreational use in October of this year. The legalization of marijuana raises many new challenges and concerns about the effect on workplace safety.

Can recreational marijuana be used at work?

Short answer: no. The Ontario regulations only permit the use of recreational marijuana in private residences. Use elsewhere, such as in cars, public parks, or workplaces can result in provincial offences and fines up to $5,000.

Ontario’s rational for this law is “to protect people from second-hand cannabis smoke, and reduce youth and young adult exposure to cannabis.”

Can an employee be high at work?

Impairment is a long standing issue in the Ontario workplace and marijuana use will complicate things further. Marijuana has psychotropic effects which, like alcohol, can impair judgement, however a direct connection to workplace incidents has not been definitely established. Maclean’s released an article on the health effects of marijuana in the workplace and reported that:

Several studies have examined the impact of marijuana use on workplace outcomes, but with mixed results.

Some have found associations between marijuana use in the workforce and work absenteeism, reduced productivity, job turnover, disciplinary measures, workplace accidents and injuries, unemployment and interpersonal conflict.

However, other studies have found no association with some of these outcomes. Overall, the evidence to date is quite inconsistent.

In 2017, the U.S. National Academy of Sciences published a major report on the health effects of marijuana use, including impacts on injuries and accidents in a workplace setting.

Based on six studies, the review did not find enough evidence to either support or refute a statistical link between marijuana use and occupational injuries or accidents.

The Occupational Health and Safety Act (OHSA) already imposes strict obligations on employers to keep their employees and workplaces safe. These obligations include ensuring workers are not introducing hazards to the workplace as a result of impairment arising from marijuana use.

What obligations an employer has will depend on the individual circumstances of the workplace. The appropriate policies and measures will be different. For example, if an employer, manager or supervisor becomes aware that a worker who operates heavy machinery appears to be impaired, the appropriate steps would be different from an employee who works at a desk most of the day.

In all circumstances a duty is owed to ensure the health and safety of workers are protected and the OHSA is being complied with.

What about Medical Marijuana in the Workplace?

Like any other prescribed medication, Ontario employers have a duty to accommodate an employees illness, including the use of  medicinal marijuana in appropriate places around the workplace in accordance with doctor’s directions.

The duty to accommodate extends to the point of undue hardship. A prescription for medical marijuana does not entitle an employee to compromise the safety of themselves or others. Nor does it entitle them to smoke around others or in doors – Smoke-free Ontario laws apply to the smoking marijuana in the same way they do for cigarettes. However, an employer may have to permit an employee a suitable workplace accommodation to use their medication.

What should I do if I am an Employer in Ontario?

If you already have good policies in place, then they will not need to be drastically changed.

To ensure a safe and hazard free work environment, employers should conduct a risk assessment of marijuana in their workplace, then update their written measures to control the risks or, where practicable, eliminate the hazards identified from substance abuse. It may be a good idea to provide training to management or supervisors on the signs of marijuana intoxication.


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.

Ontario Election 2018: Do employees get paid time off to vote?

With the Ontario Provincial Elections around the corner, some employees may be entitled to paid time off to vote pursuant to the Ontario Elections Act.

The Elections Act states:

Employees to have three consecutive hours for voting

[6](3) Every employee who is qualified to vote shall, while the polls are open on polling day at an election, have three consecutive hours for the purpose of voting and, if the hours of his or her employment do not allow for three consecutive hours, the employee may request that his or her employer allow such additional time for voting as may be necessary to provide those three consecutive hours and the employer shall grant the request.

 Deduction from pay prohibited

(4) No employer shall make any deduction from the pay of any employee or impose upon or exact from the employee any penalty by reason of his or her absence from work during the consecutive hours that the employer is required to allow under subsection (3).

 Time off best suiting convenience of employer

(5) Any time off for voting as provided in subsection (3) shall be granted at the time of day that best suits the convenience of the employer.

The 2018 Provincial Election is scheduled for July 7, 2018, and polls are open between 9:00am and 9:00pm. Accordingly, (1) if an employee is working on voting day, (2) does not have three consecutive hours to vote while polls are open, and (3) requests time off to vote, then their employer must provide them with paid time off to vote.

An employer does not have to give paid time off, or time off at all, if their employee is off work for a consecutive 3 hour period during poll open times. That means no paid time off is required for 9:00am to 5:00pm employees because there is more than 3 consecutive hours after work ends for the employee to vote.


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.

Equal Pay for Part Time Work begins April 1, 2018

For Ontario employers, employing part time and temporary workers is about to become a lot more expensive. On April 1, 2018, the “equal pay for equal work” amendments to the Employment Standards Act, 2002 (the “ESA”) by Bill 148, the Fair Workplaces, Better Jobs Act 2017, come into legal effect.

Ontario employees have long had the protection of the Pay Equity Act, and similar provisions in the ESA, that prevented women (and men too) from being paid less than their peers on the basis of sex. As of April 1, 2018, the ESA will now provide for an entitlement for equal pay from an employer regardless of a difference in employment status.

“Difference in employment status”, in respect of one or more employees, will now be defined as:

a difference in the number of hours regularly worked by the employees; or a difference in the term of their employment, including a difference in permanent, temporary, seasonal or casual status

As a result, employers will be required to pay casual, temporary, part-time, and seasonal employees the same rate as permanent and full time employees so long as:

  • they perform substantially the same kind of work in the same establishment;
  • their performance requires substantially the same skill, effort and responsibility; and
  • their work is performed under similar working conditions.

The legislature has attempted to define “substantially the same” to mean “substantially the same but not necessarily identical.” How this will be interpreted by the Ontario Courts is anyone’s guess but likely it will be used to grant discretion to the Tribunal, Judge or Jury on whether two similar jobs are “substantially the same”.

Exceptions

Differences in pay between employees of different sex or similar employment status are permitted so long as the difference in rate of pay is the result of:

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

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.

The Process

Any employee who believes that their rate of pay does not comply with the Equal Pay for Equal Work section of the ESA, may request a review from their employer. Employers are, thereafter, required to either:

  • Adjust the employee’s pay; or
  • Provide a written response setting out the reasons for refusing.

As discussed in my article Important Upcoming Changes to the Ontario Workplace, any written response must be saved according to the new record keeping requirements in the ESA for five (5) years.


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.

Arbitration Clause in Employment Contract puts the Breaks on the Uber Class Action in Ontario

The Ontario Court has confirmed that an arbitration clause in an employment contract is generally enforceable.

Much to the chagrin of Mr. Heller and his lawyers in the proposed class action brought against Uber, Justice Perell of Ontario Superior Court of Justice stayed the lawsuit against Uber. As a result, Uber drivers in Ontario that want to sue for their rights under the Employment Standards Act, 2002 will need to do so by way of Arbitration in the Netherlands.

In the lawsuit of Heller v. Uber Technologies Inc., Heller, the proposed class plaintiff for Uber drivers across Ontario, sued Uber for a finding that they were employees, not independent contractors. If correct, then Uber drivers would be entitled to all the benefits granted to employees under the Employment Standards Act. Uber brought a motion to stay the action in Ontario—effectively ending the law suit—on the basis that when Uber drivers signed up on the “Uber App”, they clicked accept to a long list of terms and conditions that included the following clause:

Except as otherwise set forth in this Agreement, this Agreement shall be exclusively governed by and construed in accordance with the laws of the Netherlands, excluding its rules on the conflict of laws. The Vienna Convention on the International Sale of Goods 1980 (CISG) shall not apply. Any dispute, conflict or controversy, howsoever arising out of or broadly in connection with or relating to this Agreement, including relating to its validity, its construction or its enforceability, shall be first mandatorily submitted to mediation proceedings under the International Chamber of Commerce Mediation Rules (“ICC Mediation Rules”). If such a dispute has not been settled within sixty (60) days after a request for mediation has been submitted under such ICC Mediation Rules, such dispute can be referred to and shall be exclusively and finally resolved by arbitration under the Rules of Arbitration of the International Chamber of Commerce (“ICC Arbitration Rules”) …. The Place of the arbitration shall be Amsterdam, The Netherlands.

After finding that the International Commercial Arbitration Act, 2017, applies the Court considered:

  1. Whether the Competence-Competence Principle applied? or
  2. Whether there was some other reason to refuse to send the matter to arbitration.

The Competence-Competence principle holds that in general “a challenge to the arbitrator’s jurisdiction should be first resolved by the arbitrator.” The Court found that this principle did apply and that there were no exception to rely on that would benefit Mr. Heller. The Court held that the arbitration provision was not illegal for being unconscionable.

In short, Mr. Heller’s argument was summarized as follows:

it would be an absurd result and contrary to public policy to enforce an arbitration agreement in an employment contract and thereby deny vulnerable non-unionized employees their rights and protections under the Employment Standards Act, 2000, which precludes employees contracting out of their rights under the Act.

The Court reasoned that it was their role to interpret statute and not enact it and the Employment Standards Act does not, unlike the Consumer Protection Act, preclude arbitration clauses. Therefore, the Court held that the class action lawsuit should be stayed as a result of the arbitration clause in the employment contract, “be the result absurd public policy or not.”

What is the take away?

The decision of Heller v. Uber Technologies Inc., 2018 ONSC 718, confirms that Arbitration clauses in employment agreements are generally enforceable.


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.

Public Holiday Pay: What You Need to Know

Read on to get answers to some of the most common questions about holiday pay in Ontario.

What are the statutory holidays in Ontario?

In Ontario, there are 9 public statutory holidays for which employees are entitled to take off work and be paid.

  • New Years Day
  • Family Day
  • Good Friday
  • Victoria Day
  • Canada Day
  • Labour Day
  • Thanksgiving Day
  • Christmas Day; and
  • Boxing Day.

Easter Sunday, Easter Monday, the first Monday in August and Remembrance Day are not public holidays.

Can employers force employees to work on statutory holidays?

Sometime yes and sometime no.

In most industries, employers cannot require employees to work on statutory holidays; however, if an employee agrees in writing – paper or electronic – then they may work but are entitled to either:

  1. Pay for that public holiday plus premium pay for all hours worked on that day; or,
  2. Regular wages for all hours worked on the holiday plus another substitute holiday off for which they are to be paid.

The employee gets to choose which of the above options they’d prefer. If they choose option 2, the employer must get the employees decision in writing.

If the business is “a hospital, a continuous operation, or a hotel, motel, tourist resort, restaurant or tavern”, then an employee may be required to work on public holiday if:

  1. That holiday would otherwise be ordinarily a working day; and
  2. That employee is not on a scheduled vacation;

If an employer requires the employee to work, then that employee is entitled to either:

  1. Pay for that public holiday plus premium pay for all hours worked on that day; or;
  2. Regular wages for all hours worked on the holiday plus another substitute holiday off for which they are to be paid.

In these circumstances, the employer gets to choose which of the above options they’d prefer.

How much is Premium Pay?

Premium pay must be at least 1.5 times an employees regular rate of pay.

How do Substitute Public Holidays Work?

If an employer is providing a substitute holiday to an employee, the employer must provide to the employee written notice that sets out:

  1. The public holiday which the employee is going to work;
  2. The date of the day that is substituted for the public holiday; and
  3. The date written notice is provided to the employee.

The substituted day must be no more than three months after the public holiday, unless the employee and employer agree in writing, then it must be no more than 12 months after the public holiday.

How to Calculate Statutory Holiday Pay?

An employee’s public holiday pay for any given public holiday is equal to the total amount of regular wages earned in the pay period immediately preceding the public holiday divided by the number of days the employee worked in that period.

Holiday Pay = Regular Wages / Days Worked

Note:

  • Regular wages does not include any overtime pay, vacation pay, public holiday pay, premium pay, personal emergency leave pay, domestic or sexual violence leave pay, termination pay, severance pay or termination of assignment pay payable to an employee.
  • If the employee was on leave or on vacation or both for the entire pay period before the public holiday, the regular wages earned by the employee in the pay period before the start of that leave or vacation, divided by the number of days the employee worked in that period is used to calculate the public holiday pay.
  • If the employee was not employed during the pay period before the public holiday, the public holiday pay is calculated using the regular wages earned by the employee in the pay period that includes the public holiday, divided by the number of days the employee worked in that period.[1]
Examples:

Freddie Full Time

Patrick Part Time

Olivia Occasional

  Freddie, Patrick and Olivia work for the same company. There is a two-week (or 10-business day) pay period and they each earn $20.00 Hour. In the pay period prior to the public holiday:

  • Freddie worked every day, 7.5  hours a day.
  • Patrick worked every afternoon except Fridays for 5 hours.
  • Olivia worked three 7.5 hour days.
Freddie’s Regular Wages = 10 days * 7.5 Hours * $20.00 per hour = $1,500 Patrick’s Regular Wages = 8 days * 5 Hours * $20.00 per hour = $800 Olivia’s Regular Wages = 3 days * 7.5 Hours * $20.00 per hour = $ 450
Holiday Pay = Regular Wages / Days Worked

= $1,500 / 10

Holiday Pay = $150.00

Holiday Pay = Regular Wages / Days Worked

= $800 / 8

Holiday Pay = $100.00

Holiday Pay = Regular Wages / Days Worked

= $450 / 3

Holiday Pay = $150.00

Yes, the above calculation is correct, Olivia who earned just over half of what Patrick earned in the previous pay period is entitled to more public holiday pay. You may be a little shocked and in fact there has been some controversy as a result. Nevertheless, as of today (Feb 2018), this is how public holiday pay is calculated in Ontario.

Anything else I might want to know?

Overtime – If an employee reviewed premium pay for work on a statutory holiday, then the hours worked do not count towards overtime.

Termination/Resignation  – If employment ends before the employee receives the substituted public holiday, then that employee is entitled to public holiday pay for that day.


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.

 

[1] Ontario Ministry of Labour, Your Guide to the Employment Standards Act – Public Holidays (Online: Ontario.ca; Feb 2018);