Dentons Canada LLP

Fall Employment and Labour
Law Update Seminar
Dentons Canada LLP

AODA update: What
employers should know about
the Accessibility for Ontarians
with Disabilities Act, 2...
Goal of AODA

• Recognizes past history of discrimination against those with disabilities in
Ontario

• As of 2006, approx...
General accessibility standards

• Policies
• Statement of organizational commitment
• Public Sector

January 1, 2012 to J...
Multi-year accessibility plans

• Only for public sector and large employers
• Outline for strategy to prevent and remove ...
Training

• Training on the Accessibility Standards and the Human Rights Code
requirements on disability discrimination

•...
Customer Service

Employment

9 October 2013

Communications

Transportation

Dentons Canada LLP

7
Customer service standards - Recap

• Applies to organizations that provide goods or services to members of
the public or ...
Customer service standards timetable

• Public Sector

January 1, 2010

• Private Sector

January 1, 2012

• Compliance re...
Penalties for non-compliance (including failure to file
an accessibility report)
• Inspections
• Order to comply
• Failure...
Employment standards
• Full inclusion of people with disabilities in the workplace to allow full
participation
• Create ac...
Stages of the employment relationship
• Recruitment

• Hiring
• Supports for employees
• Individual accommodation plan
• R...
Employment standards
• Time Frames
• Public sector

January 1, 2013 to January 1, 2015

• Large employers

January 1, 2016...
Employment
• Recruitment
• Notify public of accommodation for applicants with disabilities

• If select an applicant to pa...
Employment

• Recruitment (contd.)
• Offers of employment
• Include notice of your policies for accommodating employees wi...
Employment supports

• Inform employees of your policies used to support employees with
disabilities including a policy on...
Individual accommodation plans (small employers
are exempt)
Establish a process for developing individual accommodation pl...
Return to work (small employers exempt)

• Return to work process for employees who are off due to disability and
require ...
Performance management

• If you use performance management ….
• Take accessibility needs of employees with disabilities i...
Career development

• If you provide career development and advancement …
• Take accessibility needs of employees with dis...
Dentons Canada LLP

Returning sick and disabled
employees to work

Jeff Mitchell
09 October 2013
Returning sick/disabled employees to work

• Before considering how or whether to accommodate, ensure you
have a complete ...
Reasonable accommodation

• THEN: Review what accommodation would/could be appropriate:
• Ask yourself whether the person ...
Reasonable accommodation

• Obligation on the person seeking accommodation to co-operate, and
accept reasonable accommodat...
Dealing with the “revolving door”

• Where you have an employee who routinely takes short periods off, start
with active m...
Accommodation of disabilities

Hydro-Quebec v. Syndicat des employees de techniques professionelles et de
bureau d’Hydro-Q...
Accommodation of disabilities

• Disability and Performance Standards
• CAW-Canada, Local 1524 and Zettel Manufacturing Lt...
Innocent absenteeism

Schulz v. Lethbridge Industries Ltd., 2012 AHRC 3
• Mr. Schulz was employed as a sprocket manager.
•...
Innocent absenteeism

Re Sault Area Hospital and CAW-Canada, Local 1120 (Thompson Grievance),
2010 CanLII 15871
• Ms. Thom...
Innocent absenteeism

• Arbitrator ruled that the employer justifiably terminated Ms. Thompson for
innocent absenteeism:
•...
Bundling job duties

• Bowater Canadian Forest Products (October 23, 2003)
• Chip hauling truck driver was required to wor...
Bundling job duties

• Employer tried to accommodate employee by rescheduling shifts.
• Employer offered employee welding ...
Tribunal found:

• Employer had considered alternative positions within the Company.
• Adding another day-shift would amou...
Duty to accommodate

Bundling Job Duties

• Vanegas v. Liverton Hotels International Inc., 2011 HRTO 715
• Tribunal held t...
Duty to accommodate: Best practices

• Actively investigate the issue of accommodation:
1. Clarify ambiguous aspects of em...
Duty to accommodate: Best practices

• Engage the employee in discussions – he/she has an obligation to
facilitate accommo...
Duty to accommodate: Best practices

• Keep Records of every step in the process:
• Validate the need to accommodate, if n...
Non-solicitation and noncompetition covenants:
Making them enforceable

Andy Pushalik
9 October 2013
Agenda

• Legal Protections Even Without a Written Agreement
• Pre-Drafting Considerations
• The Four Commandments of Draf...
Legal protections even without a written agreement

• The Ordinary Employee
• General duty of good faith and fidelity
• Em...
Legal protections even without a written agreement

• Fiduciary Employees
• Confidential Information

• Non-Solicitation o...
Pre-drafting considerations

• Do you need a non-competition or non-solicitation covenant?
• When to enter into a non-comp...
The four commandments of drafting restrictive
covenants
• The clause must be reasonable
• The clause must not go further t...
Commandment #1: The clause must be reasonable

• “…the word one finds repeated throughout the cases is the word
„reasonabl...
Commandment #2: The clause must not go further
than necessary
• What do you need to protect?
• Nature of the business to b...
Commandment #3: The clause must protect a
legitimate proprietary interest
• No property in potential customers
• Client re...
Commandment #4: The clause must be clear

• Clear Definitions
• “Business”

• “Activities”

• “No Deal Clauses”
• “Blue-Pe...
Enforceable or not?

“Adam Paton agrees that in event of the termination of this

agreement by either party and after the ...
Enforceable or not?
“The Employee shall not, without the prior written consent of
the Employer directly or indirectly, sol...
Enforceable or not?
“I agree that if my employment is terminated for any reason by me or by
the Company, I will not, for a...
Making your covenant enforceable

• Set out the reasons for the non-competition/non-solicitation covenant
• Don‟t speculat...
Making your covenant enforceable

• Narrow the scope
• Clients that the employee dealt with during the last two years of h...
Thank you

Anneli LeGault
Dentons Canada LLP
anneli.legault@dentons.com
+1 416 863 4450
Jeff Mitchell
Dentons Canada LLP
j...
Upcoming SlideShare
Loading in...5
×

Fall 2013 Employment and Labour Law Update Seminar

514

Published on

October 9, 2013

Dentons Canada LLP hosted the Fall Employment and Labour Law Update, featuring presentations from Anneli LeGault (Partner), Jeff Mitchell (Partner) and Andy Pushalik (Associate).

Published in: Technology, Business
0 Comments
0 Likes
Statistics
Notes
  • Be the first to comment

  • Be the first to like this

No Downloads
Views
Total Views
514
On Slideshare
0
From Embeds
0
Number of Embeds
3
Actions
Shares
0
Downloads
2
Comments
0
Likes
0
Embeds 0
No embeds

No notes for slide

Transcript of "Fall 2013 Employment and Labour Law Update Seminar"

  1. 1. Dentons Canada LLP Fall Employment and Labour Law Update Seminar
  2. 2. Dentons Canada LLP AODA update: What employers should know about the Accessibility for Ontarians with Disabilities Act, 2005 Anneli LeGault 9 October 2013
  3. 3. Goal of AODA • Recognizes past history of discrimination against those with disabilities in Ontario • As of 2006, approximately 15½ per cent of Ontarians had a disability (Statistics Canada), and their rate of employment was only 51.8% • Goal to make Ontario accessible to people with disabilities by January 1, 2025 • Goods, services, facilities, accommodation, employment, buildings, structures, premises 9 October 2013 Dentons Canada LLP 3
  4. 4. General accessibility standards • Policies • Statement of organizational commitment • Public Sector January 1, 2012 to January 1, 2014 • Large employers (50+ employees in Ontario) January 1, 2014 • Small employers (1 to 49 employees in Ontario) January 1, 2015 9 October 2013 Dentons Canada LLP 4
  5. 5. Multi-year accessibility plans • Only for public sector and large employers • Outline for strategy to prevent and remove barriers and meet the requirements of the various regulations • Post on website • Update every five years • Public sector January 1, 2012 to January 1, 2014 • Large employers January 1, 2014 9 October 2013 Dentons Canada LLP 5
  6. 6. Training • Training on the Accessibility Standards and the Human Rights Code requirements on disability discrimination • Employees • Volunteers • People who participate in developing the company‟s policies • Everyone who provides goods, services or facilities on behalf of the company • Public service January 1, 2013 to January 1, 2015 • Large employers January 1, 2015 • Small employers January 1, 2016 9 October 2013 Dentons Canada LLP 6
  7. 7. Customer Service Employment 9 October 2013 Communications Transportation Dentons Canada LLP 7
  8. 8. Customer service standards - Recap • Applies to organizations that provide goods or services to members of the public or other business • Policies and practices on how to provide goods/services to people with disabilities • Allow use of personal assistive devices, guide dogs or service animals • Communicate with people with disabilities in a manner that takes into account the disability • Train staff, volunteers and contractors who interact with the public or other businesses on your behalf 9 October 2013 Dentons Canada LLP 8
  9. 9. Customer service standards timetable • Public Sector January 1, 2010 • Private Sector January 1, 2012 • Compliance report due December 31, 2012 (Small employers exempt from reporting requirement) 9 October 2013 Dentons Canada LLP 9
  10. 10. Penalties for non-compliance (including failure to file an accessibility report) • Inspections • Order to comply • Failure to comply administrative penalties $500 - $15,000 • Criminal prosecution 9 October 2013 Dentons Canada LLP 10
  11. 11. Employment standards • Full inclusion of people with disabilities in the workplace to allow full participation • Create accessible and inclusive work environments for those with disabilities • Addresses the stages of the employment relationship from recruiting to performance management • This is in addition to the Ontario Human Rights Code 9 October 2013 Dentons Canada LLP 11
  12. 12. Stages of the employment relationship • Recruitment • Hiring • Supports for employees • Individual accommodation plan • Return to work process • Performance management • Career development and advancement • Redeployment (reassignment to avoid layoff) 9 October 2013 Dentons Canada LLP 12
  13. 13. Employment standards • Time Frames • Public sector January 1, 2013 to January 1, 2015 • Large employers January 1, 2016 • Small employers January 1, 2017 9 October 2013 Dentons Canada LLP 13
  14. 14. Employment • Recruitment • Notify public of accommodation for applicants with disabilities • If select an applicant to participate in an assessment or selection process, inform applicants that accommodations are available upon request in relation to the materials or the processes • If an accommodation request is received, consult with the applicant about suitable accommodation and take into account accessibility needs 9 October 2013 Dentons Canada LLP 14
  15. 15. Employment • Recruitment (contd.) • Offers of employment • Include notice of your policies for accommodating employees with disabilities 9 October 2013 Dentons Canada LLP 15
  16. 16. Employment supports • Inform employees of your policies used to support employees with disabilities including a policy on providing job accommodations that take into account an employee‟s accessibility needs • Inform new hires • Inform employees when job accommodation policies are changed • Upon request: • Consult with the employee • Accessible format • Communication supports 9 October 2013 Dentons Canada LLP 16
  17. 17. Individual accommodation plans (small employers are exempt) Establish a process for developing individual accommodation plans for employees with disabilities Contents – • How the employee can participate in developing the plan • How the employee will be assessed • How outside medical and other experts will be involved • How the employee can ask for union participation • How the privacy of the employee‟s personal information will be protected • If the plan is denied, how reasons for denial will be forwarded to the employee 9 October 2013 Dentons Canada LLP 17
  18. 18. Return to work (small employers exempt) • Return to work process for employees who are off due to disability and require disability related accommodation to return to work • Outline the steps • Use individual accommodation plans as part of the process • Accommodations may be temporary or permanent • Often appropriate to work with the employee‟s doctor on consent 9 October 2013 Dentons Canada LLP 18
  19. 19. Performance management • If you use performance management …. • Take accessibility needs of employees with disabilities into account • Take accommodation plans into account 9 October 2013 Dentons Canada LLP 19
  20. 20. Career development • If you provide career development and advancement … • Take accessibility needs of employees with disabilities into account • Take individual accommodation plans into account 9 October 2013 Dentons Canada LLP 20
  21. 21. Dentons Canada LLP Returning sick and disabled employees to work Jeff Mitchell 09 October 2013
  22. 22. Returning sick/disabled employees to work • Before considering how or whether to accommodate, ensure you have a complete understanding of what you are accommodating. Ensure you are satisfied as to the need for accommodation: • Is it a prohibited ground? • Do you have sufficient information to justify the accommodation claimed? • If someone has been absent for a lengthy period, do not rely on old medical reports. • Request a medical report, if appropriate, to ensure you are satisfied as to the nature of the restriction and what the specific nature of that person’s needs are. • Ask for the prognosis and restrictions/limitations, NOT the diagnosis. • Consider including a Job Description/Requirements Summary. • After all that, consider independent medical examination. 9 October 2013 Dentons Canada LLP 22
  23. 23. Reasonable accommodation • THEN: Review what accommodation would/could be appropriate: • Ask yourself whether the person can/should return at this point • Sometimes its better to delay the return than to have a failed/unduly onerous return • “Reasonable”, not “perfect”, accommodation must be provided where possible, which meets both the individual‟s and the organization‟s needs. • All alternative means of accommodation should be reviewed • If the appropriate position is a lower paying one, it is acceptable to pay the lower rate, if there are no suitable positions at the person‟s regular rate (subject to any collective agreement provisions) 9 October 2013 Dentons Canada LLP 23
  24. 24. Reasonable accommodation • Obligation on the person seeking accommodation to co-operate, and accept reasonable accommodation • If an offer of reasonable work is made and the person refuses without reasonable basis, employer‟s duty to accommodate may be satisfied 9 October 2013 Dentons Canada LLP 24
  25. 25. Dealing with the “revolving door” • Where you have an employee who routinely takes short periods off, start with active management, distinguishing between “innocent absenteeism” and disciplinary absenteeism: • Coaching and counseling vs. discipline – get to the underlying root of the issue • Making expectations clear: requesting medical notes • Pointing out the “Monday and Friday” disability • Manage the disability, deal with the poor performance 9 October 2013 Dentons Canada LLP 25
  26. 26. Accommodation of disabilities Hydro-Quebec v. Syndicat des employees de techniques professionelles et de bureau d’Hydro-Quebec, section locale 2000, 2008 SCC 43 • “The employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee’s workplace or duties to enable the employee to do his or her work.” 9 October 2013 Dentons Canada LLP 26
  27. 27. Accommodation of disabilities • Disability and Performance Standards • CAW-Canada, Local 1524 and Zettel Manufacturing Ltd. [2006] OLAA No. 333 (F. Reilly) • Employee was unable meet minimum production standards due to limited mental capacity • Received progressive discipline • Employer not made aware of employee’s condition, and terminated employee, based on progressive discipline • Tribunal ordered reinstatement; dismissal was discriminatory 9 October 2013 Dentons Canada LLP 27
  28. 28. Innocent absenteeism Schulz v. Lethbridge Industries Ltd., 2012 AHRC 3 • Mr. Schulz was employed as a sprocket manager. • He was absent from work approximately 25% of the time. • He suffered from chronic depression, debilitating migraine headaches and a recurring hernia problem. • He was terminated in late March 2006 for excessive innocent absenteeism. • Tribunal: employer failed to establish a “bona fide occupational requirement” for the discrimination since it had not disclosed or previously enforced attendance standards and essentially withdrew accommodations without any examination of alternative methods of accommodation or inquiry about the employee’s health issues. 9 October 2013 Dentons Canada LLP 28
  29. 29. Innocent absenteeism Re Sault Area Hospital and CAW-Canada, Local 1120 (Thompson Grievance), 2010 CanLII 15871 • Ms. Thompson was employed as a records technician. • During April 2003-March 2008, she missed an average of 63 days per year (24% of the time). • Her absences were caused by a variety of health problems and she was terminated in June 2008 because of her excessive absenteeism. 9 October 2013 Dentons Canada LLP 29
  30. 30. Innocent absenteeism • Arbitrator ruled that the employer justifiably terminated Ms. Thompson for innocent absenteeism: • Excessive absenteeism • Future attendance not likely to improve • Employee warned her continued employment in peril • Suitably accommodated position to point of undue hardship • Relationship undermined: any further toleration of such absenteeism would have been an undue hardship 9 October 2013 Dentons Canada LLP 30
  31. 31. Bundling job duties • Bowater Canadian Forest Products (October 23, 2003) • Chip hauling truck driver was required to work three week, 12 hour shifts. • March 1999, grievor was diagnosed with sleep apnea and sleep disorder. • Three month disability leave. 9 October 2013 Dentons Canada LLP 31
  32. 32. Bundling job duties • Employer tried to accommodate employee by rescheduling shifts. • Employer offered employee welding work on day shift. • Employee no longer responded to offers. • Company assumed employee had quit. • Employee then complained that there had been a failure to accommodate. 9 October 2013 Dentons Canada LLP 32
  33. 33. Tribunal found: • Employer had considered alternative positions within the Company. • Adding another day-shift would amount to undue hardship. • Displacing another employee would amount to undue hardship. • Would disrupt collective agreement and cause morale problems. • There is no general obligation for an employer to “cobble together” parts of other jobs to create a position for disabled employee. 9 October 2013 Dentons Canada LLP 33
  34. 34. Duty to accommodate Bundling Job Duties • Vanegas v. Liverton Hotels International Inc., 2011 HRTO 715 • Tribunal held that the duty to accommodate may, in appropriate circumstances, require an employer to “bundle” and in essence create a new position for a disabled employee, unless to do so would create undue hardship for the employer. • In this case, duty to accommodate did not require employer to create a permanent job comprised of a limited number of duties within his restrictions since this would not result in the former employee performing a useful or productive job. 9 October 2013 Dentons Canada LLP 34
  35. 35. Duty to accommodate: Best practices • Actively investigate the issue of accommodation: 1. Clarify ambiguous aspects of employee’s condition. 2. Consider whether it is possible to reconfigure jobs. 3. Consider whether to offer other jobs. 9 October 2013 Dentons Canada LLP 35
  36. 36. Duty to accommodate: Best practices • Engage the employee in discussions – he/she has an obligation to facilitate accommodation by: • Providing information and documentation so that the need for accommodation is clearly justified, and the restrictions clearly outlined • Making suggestions as to accommodation that he/she thinks are suitable • Accepting “reasonable” (even if not perfect) accommodation • If an offer of reasonable work is made and the employee refuses without reasonable basis, employer‟s duty to accommodate may be satisfied 9 October 2013 Dentons Canada LLP 36
  37. 37. Duty to accommodate: Best practices • Keep Records of every step in the process: • Validate the need to accommodate, if necessary through use of an independent medical examination • List of options considered • Why the options were not viable, either from the employee’s perspective or your perspective: • Cost • Disruption to organization • Disruption to other employees • The Tribunal will not accept “impressionistic” responses; it looks for hard facts 9 October 2013 Dentons Canada LLP 37
  38. 38. Non-solicitation and noncompetition covenants: Making them enforceable Andy Pushalik 9 October 2013
  39. 39. Agenda • Legal Protections Even Without a Written Agreement • Pre-Drafting Considerations • The Four Commandments of Drafting Restrictive Covenants • How to Make Your Restrictive Covenants Enforceable 9 October 2013 Dentons Canada LLP 39
  40. 40. Legal protections even without a written agreement • The Ordinary Employee • General duty of good faith and fidelity • Employees cannot compete against their employer during the employment relationship • Confidential Information 9 October 2013 Dentons Canada LLP 40
  41. 41. Legal protections even without a written agreement • Fiduciary Employees • Confidential Information • Non-Solicitation of employees • Non-Solicitation of clients • Seizing a corporate opportunity • Riding the coat-tails of the fiduciary 9 October 2013 Dentons Canada LLP 41
  42. 42. Pre-drafting considerations • Do you need a non-competition or non-solicitation covenant? • When to enter into a non-competition or non-solicitation agreement 9 October 2013 Dentons Canada LLP 42
  43. 43. The four commandments of drafting restrictive covenants • The clause must be reasonable • The clause must not go further than necessary • The clause must protect a legitimate proprietary interest • The clause must be clear 9 October 2013 Dentons Canada LLP 43
  44. 44. Commandment #1: The clause must be reasonable • “…the word one finds repeated throughout the cases is the word „reasonable‟” • J.G. Collins Insurance Agencies v. Elsley, [1978] 2 S.C.R. 916 • Geographic Scope • Non-Competition Covenants vs. Non-Solicitation Covenants • Temporal Scope • Business Scope 9 October 2013 Dentons Canada LLP 44
  45. 45. Commandment #2: The clause must not go further than necessary • What do you need to protect? • Nature of the business to be protected • Where do you actually do business? • Sale of Business vs. Employment Context • Guay inc. v. Payette, 2013 SCC 45 9 October 2013 Dentons Canada LLP 45
  46. 46. Commandment #3: The clause must protect a legitimate proprietary interest • No property in potential customers • Client relationships • Client preferences 9 October 2013 Dentons Canada LLP 46
  47. 47. Commandment #4: The clause must be clear • Clear Definitions • “Business” • “Activities” • “No Deal Clauses” • “Blue-Pencil” and Notional Severance • KRG Insurance Brokers (Western) Inc. v. Shafron, 2009 SCC 6 9 October 2013 Dentons Canada LLP 47
  48. 48. Enforceable or not? “Adam Paton agrees that in event of the termination of this agreement by either party and after the term hereof has expired that he will not engage in tattooing for gain nor will he be a proprietor of, nor employee, servant or contractor of any person or corporation engaged in the operation of a tattooing business within a 200 mile (320 km) radius of the City of Yorkton for a period of 3 years commencing the final date at Drillers Tattoos.” 9 October 2013 Dentons Canada LLP 48
  49. 49. Enforceable or not? “The Employee shall not, without the prior written consent of the Employer directly or indirectly, solicit […], any person, firm, company, entity or other party soliciting, serving or catering to any of the customers of the Employer or its affiliates who dealt with Employee during the term of his employment, if such soliciting, serving or catering to is in any way directly or indirectly related to the business of the Employer or its affiliates while the Employee is in the employ of the Employer and for a period of two (2) years from the date that the Employee ceases to be employed by the Employer or its affiliates in and throughout the territory of Canada and the United States of America.” 9 October 2013 Dentons Canada LLP 49
  50. 50. Enforceable or not? “I agree that if my employment is terminated for any reason by me or by the Company, I will not, for a period of one year following the termination, directly or indirectly, for my own account or as an employee or agent of any business entity, engage in any business or activity in competition with the Company by providing services or products to, or soliciting business from, any business entity which was a customer of the Company during the period in which I was an employee of the Company, or take any action that will cause the termination of the business relationship between the Company and any customer, or solicit for employment any person employed by the Company.” 9 October 2013 Dentons Canada LLP 50
  51. 51. Making your covenant enforceable • Set out the reasons for the non-competition/non-solicitation covenant • Don‟t speculate – “businesses which may compete”; “potential customers” • Define Terms • Business • Solicitation 9 October 2013 Dentons Canada LLP 51
  52. 52. Making your covenant enforceable • Narrow the scope • Clients that the employee dealt with during the last two years of his employment • The shorter the better • Pay the employee during the non-competition or non-solicitation period 9 October 2013 Dentons Canada LLP 52
  53. 53. Thank you Anneli LeGault Dentons Canada LLP anneli.legault@dentons.com +1 416 863 4450 Jeff Mitchell Dentons Canada LLP jeff.mitchell@dentons.com +1 416 863 4660 Andy Pushalik Dentons Canada LLP andy.pushalik@dentons.com +1 416 862 3468 © 2013 Dentons. Dentons is a global legal practice providing client services worldwide through its member firms and affiliates. This publication is not designed to provide legal or other advice and you should not take, or refrain from taking, action based on its content. Please see dentons.com for Legal Notices. Dentons Canada LLP
  1. A particular slide catching your eye?

    Clipping is a handy way to collect important slides you want to go back to later.

×