CANADIAN EMPLOYMENT LAW 101 FOR US LEGAL & HUMAN RESOURCES

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  • 1. CANADIAN EMPLOYMENT LAW101 FOR U.S. LEGAL & HRUpdated March 2013 Kristin Taylor (416) 860-2973 ktaylor@casselsbrock.com
  • 2. Key differences: U.S. vs. Canadian Employment Law:1. Statutory requirements2. The Employment Contract3. Human rights differences generally and in three key areas: a) Disability b) Age c) Family Obligations4. Privacyslide | 2
  • 3. 1. Statutory Requirements● Under Canadas constitution, jurisdiction over employment law is given to the provinces, except with respect to federal government and certain industries with national implications (inter-provincial transportation, banks, telecommunication companies). Presumption is that employers are regulated by the province in which they are operating.● Each province has its own web of statutes and regulations that apply including minimum employment standards; labour relations; human rights; workers compensation; health and safety and, in some jurisdictions, pay equity. Certain provinces also have privacy legislation.slide | 3
  • 4. 1. Statutory Requirements● Employment Standards Minimums —similar to FLSA, these are different in each Canadian jurisdiction.● Any attempt or agreement to contract out of an employment standards minimum is deemed to be void. The provision then will default to either the minimum or common law.slide | 4
  • 5. 1. Statutory Requirementsa) Minimum Wage ● $10.25 / hour ● $9.60 / hour for students under 18, if weekly hours are more than 28 hours or if employed during a school break.slide | 5
  • 6. 1. Statutory Requirementsb) Leaves of Absence ● Leaves are job-protected. The employee must be reinstated in the position most recently performed, if it exists. If the position does not exist, a comparable position is required. There is an exception for terminations “solely for reasons unrelated to the leave”. ● Service is deemed to be active, seniority is protected and benefits must continue during these leaves. ● All leaves are unpaid.slide | 6
  • 7. 1. Statutory RequirementsPregnancy and Parental Leaves● Birth mothers are entitled to 17 weeks of pregnancy and 35 weeks of parental leave that run consecutively for a maximum of 52 weeks in duration.● Birth fathers and adoptive parents are entitled to 37 of parental leave to be started no later than 52 weeks after the birth or child coming into care, custody or control.● Six weeks of leave provided post-miscarriage or still birth.● Two weeks notice is required to take either leave. Four weeks’ notice is required to change the end date of either pregnancy or parental leave.slide | 7
  • 8. 1. Statutory RequirementsPregnancy and Parental Leaves● Employment Insurance (EI) provides for 17 weeks of pregnancy benefits and 35 weeks of child care benefits less a two week waiting period. Child care benefits must be split between parents.● The current rate of El benefits is 55% of average weekly earnings to a maximum of $501 per week.slide | 8
  • 9. 1. Statutory RequirementsPersonal Emergency Leave● For Ontario employers with 50 or more employees: 10 days per calendar year per employee for ● personal injury, illness or medical emergency, or ● death, injury, illness, medical emergency or urgent matter relating to a family member.● Family member is broadly defined.slide | 9
  • 10. 1. Statutory RequirementsFamily Medical Leave● Up to eight weeks in a 26 week period to provide care or support to a family member whom a qualified health practitioner certifies has a serious medical condition with a significant risk of death occurring in 26 weeks. El benefits also provided, again less a two-week period.slide | 10
  • 11. 1. Statutory RequirementsOther Leaves of Absence● Organ Donor Leave — up to 13 weeks, unless medically extended for another 13 weeks● Declared Emergency Leave● Reservist Leave — for deployment with Canadian Forces, unlike other leaves, no entitlement to benefits● Proposed Leaves: Family Caregiver Leave – up to eight weeks per year for serious medical conditions; Critically Ill Childcare Leave – up to 37 weeks; and Crime-Related Child Death or Disappearance Leave – up to 104 weeksslide | 11
  • 12. 1. Statutory Requirementsc) Public Holidays ● Nine in Ontario: New Years Day, Family Day (3rd Monday in February), Good Friday, Victoria Day (3rd Monday in May, Canada Day (July 1), Labour Day, Thanksgiving (2nd Monday in October), Christmas and Boxing Day (December 25 & 26). ● The Civic Holiday (1st Monday in August) is commonly provided by employers, but not statutorily required.slide | 12
  • 13. 1. Statutory Requirementsc) Public Holidays ● Public holiday pay = wages earned in the four work prior to the work week in which the public holiday divided by 20. ● Employees who work the public holiday are entitled to a regular pay and a substitute holiday or, if the employee agrees, regular wages + public holiday pay plus premium (1.5) for hours worked on the public holiday.slide | 13
  • 14. 1. Statutory Requirementsd) Vacancies and Vacation Pay ● Employees accrue vacation time (2 weeks after every 12 of months of service) and vacation pay (4% of total wages). Wages is defined as including just salary, but bonus, commission, incentive pay and other monetary payment payable by an employer to an employee under a contract of employment. ● Two problems arise with correlating to U.S. practices (1) wages vs. base salary, and (2) accrual during leaves vs. unpaid time.slide | 14
  • 15. 1. Statutory Requirementse) Hours of Work and Overtime ● In Ontario, employees cannot work more than (a) 8 hours per day or their regularly scheduled hours and (b) 48 per week, without Ministry approval. Ministry approval requires application and the employees written agreement. ● Overtime is payable after 44 hours per week at the time and a half.slide | 15
  • 16. 1. Statutory Requirementsf) Termination Obligations ● On termination without cause, employees are entitled to notice or pay and benefits in lieu equal to:  3 months to 1 year of service 1 week  1 to less than 3 years service 2 weeks  3 to less than 4 years service 3 weeks  4 to less than 5 years service 4 weeks  5 to less than 6 years service 5 weeks  6 to less than 7 years service 6 weeks  7 to less than 8 years service 7 weeks  8 years service or more 8 weeksslide | 16
  • 17. 1. Statutory Requirementsf) Termination Obligations ● In the event of mass terminations within four weeks or less, additional notice is required for all employees irrespective of years of service and a Form 1 must be filed with Ontario’s Ministry of Labour ● If 50 to 199 employees are terminated, 8 weeks’ notice ● If 200 to 499 employees are terminated, 12 weeks’ notice ● If 500 or more employees are terminated, 16 weeks’ noticeslide | 17
  • 18. 1. Statutory Requirementsf) Termination Obligations ● Severance pay is an additional entitlement for employees who have 5 years of service or more and whose employers have an annual Ontario payroll of $2.5M or more. Pay equates to an additional week or part thereof for each completed year of service or part thereof to a maximum of 26 weeks. Severance pay cannot be worked out. Severance pay must be paid as a lump sum, unless the employee agrees otherwise.slide | 18
  • 19. 2. The Employment Contract● In Canadian common law jurisdictions, every employment is a “contract” of employment as soon as an employment offer been accepted.● The employment contract is a compilation of: ● express terms from formal agreements, policies, plans and handbooks; and ● implied terms from statutes, regulations and common law that are implied by the courts.● Employers cannot contract out of statutory requirements. Employers can contract out of terms that would be implied by the courts under common law and are well advised to do so.slide | 19
  • 20. 2. The Employment Contract● Key provision implied under common law is that the employment is indefinite and may only be terminated with “reasonable notice”. Reasonable notice invariably exceeds the employment standards minimum. At-will employment does not exist because of these minimums.● Reasonable notice is a function of: a. age b. length of service c. character of employment (position, comp) d. prospects for alternate employment e. if applicable, enticement.slide | 20
  • 21. 2. The Employment Contract● Reasonable notice is based on total compensation and benefits of what the employee is likely to have earned and been entitled to had he/she continued to work for the reasonable notice period. Unless incentive plans and stock option plans have specific Canadian language, the termination date in such plans is read to mean the end of the reasonable notice period not the date on which the employee is notified of termination.slide | 21
  • 22. 2. The Employment Contract● Duties of confidentiality, fidelity and good faith are implied on the part of employees. Senior executives also have fiduciary duties, including a heightened duty to avoid conflict of interest and a duty not to compete unfairly post-termination.● Non-solicitation and non-competition clauses must be in writing as they will not be implied. Non-competition clauses are only enforced in “exceptional” circumstances generally involving shareholders or fiduciaries who personify the business to the public.● Reasonableness of geography, duration and scope of activity prohibited are essential for both non-solicitation and non-competition covenants.slide | 22
  • 23. 2. The Employment Contract● Benefits to the Employment Contract: ● Can contract to limit liability and protect employers interests. ● Punitive damages awards are rarely awarded. Two part test: (a) commission of independently actionable wrong (e.g., defamation, conspiracy), employers conduct warrants the condemnation of the court.● Disadvantages to the Employment Contract: ● Individual termination awards are more expensive. ● Plaintiff lawyers look for torts to circumvent the contract. Actions by employer must be egregious though.slide | 23
  • 24. 3. Human Rights Differences● No over-arching federal laws. No affirmative action Iaw except for federally-regulated employers or federal contractors. Each jurisdiction has its own human rights statute that addresses all prohibited grounds of discrimination and provides administrative framework and tribunal for recourse.● Ontario employees now can sue for discrimination or harassment in conjunction with another cause of action. The former cap of $10,000 on damages for mental anguish has been removed. Complaints now proceed directly to Human Rights Tribunal of Ontario — i.e., there are no investigations or discovery pre-hearing.slide | 24
  • 25. 3. Human Rights Differencesa) Disability Definition ● any degree of physical disability, infirmity, malformation, disfigurement that is caused by bodily injury, birth defect, illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness, hearing impediment, muteness or speech impediment, physical reliance on a guide dog or other animal or wheel chair or other remedial appliance or device,slide | 25
  • 26. 3. Human Rights Differencesa) Disability Definition ● a condition of mental impairment or a developmental disability, ● a learning disability or a dysfunction in one or more processes involved in understanding or using symbols or spoken language, ● a mental disorder, or ● an injury or disability for which benefits were claimed or received under the insurance plan established by the Workplace Safety and Insurance Act, 1997.slide | 26
  • 27. 3. Human Rights Differencesa) Disability ● Ever expanding definition:  migraines  addictions: drugs and alcohol, nicotine, pornography (!)  stress  obesityslide | 27
  • 28. 3. Human Rights Differencesa) Disability ● Alcohol and drug addictions have long been recognized as disabilities that require accommodation. Perceived (but not necessarily actual) addiction is also a disability. ● Pre-employment testing for drugs or alcohol is prohibited except, in very limited circumstances as a condition of employment for safety-sensitive positions as part of an overall policy. No automatic withdrawals of offers are allowed.slide | 28
  • 29. 3. Human Rights Differencesb) Age ● No heightened protections after age 40. Older employees generally are entitled to more notice / severance. ● Since December 2006, mandatory retirement at age 65 has been prohibited.slide | 29
  • 30. 3. Human Rights Differencesc) Family Status ● There is a duty to accommodate to the point of undue hardship an employee’s childcare or eldercare obligations. ● There currently are three competing tests: (1) From the B.C. Court of Appeal: if an employer has a “substantial parenting obligation” (2) From the Human Rights Tribunal of Ontario: if an employee has an obligation, as opposed to a preference (3) From the Federal Court: all parenting obligations require accommodationslide | 30
  • 31. 4. Privacy● Federally-regulated employers and employers in British Columbia, Alberta and Quebec have heightened obligations in connection with their collection, use, and disclosure of their employees’ “personal” information. Consent must be secured to use personal information for a purpose not originally identified, proper safeguards must be in place, etc.● In Ontario, employees personal health information is protected by statute and the tort of invasion of privacy has been recognized and nominal damages awarded.slide | 31
  • 32. 4. Privacy● Adjudicators have imposed limits on the ability of employers to use surveillance both within and outside the workplace.● Privacy garners a great deal of media coverage. For example, medical records used on a film set to mimic 9/11 and from a major bank with visa information intended to be destroyed internally but inadvertently forwarded to a scrap yard in Virginia have grabbed national headlines.● Employees believe that they have rights, even if they technically don’t.slide | 32
  • 33. © 2011 CASSELS BROCK & BLACKWELL LLP.CASSELS BROCK AND THE CB LOGO ARE REGISTERED TRADE-MARKS OF CASSELS BROCK & BLACKWELL LLP.ALL RIGHTS RESERVED.