Stuart's presentation to the Ontario Bar Association on key employment law and recruitment Issues for the immigration lawyer.

1. Ontario Bar Association
Key Employment Law Issues
for the Immigration Lawyer
June 21, 2016 – Toronto
Stuart E. Rudner

2. What are we discussing?
1. The Hiring Process
a) Avoiding human rights issues
b)Avoiding verbal agreements
2. Using Employment Contracts
a) Making the offer
b)Conditions

3. 3. Employment Standards (compliance)
a) Probation
b) Vacation
c) Hours of work
e) Overtime
f) Temporary layoffs
g) Termination

4. The Hiring Process

5. Human Rights Code
 Applies to every stage of hiring
– Posting / Advertising
– Application Process
– Offer
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6. Human Rights Code
“Every person who is an employee
has a right to freedom from
harassment in the workplace by the
employer or agent of the employer
or by another employee because
of…”
You don’t want to know more than
you need to

7. Protected Grounds of
Discrimination
 Citizenship
 Ethnic Origin
 Record of Offences
 Disability
 Family Status
 Creed/Religion
 Marital status
 Gender identity
 Receipt of public
assistance
 Age
 Ancestry, colour, race
 Gender
 Sexual Orientation
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8. Protect yourself
You don’t want to know any more than
you have to
 Be careful about chit chat, innocuous questions
– Nationality?
– Where are you from?
– Do you have kids?
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9. A speck of discrimination can
lead to a human rights claim
Price v. Top Line Roofing
 Allegation that complainant was dismissed due to his age.
 Employer put forward evidence to demonstrate legitimate
performance reasons
 “Straw that broke the camel’s back” was when employee took
unauthorized day off to observe a religious holiday and was
promptly fired.
 Since that was clearly a part of the reason for the dismissal, the
employer was found to be in breach of the human rights legislation
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10. Best Practices: Mitigating Risks
 Have consistent protocol for every applicant
 Have non-decision maker filter out inappropriate
info
 Log reasons for hiring and not hiring

11. Privacy
 Do not ask questions irrelevant to work
requirements
 Do not conduct background checks that
cannot be defended as bona fide
occupational requirements
 Consider request for permission to contact
potential references

12. Contracts

13. The Legal Cornerstones
 Employment Standards Legislation
 The Common Law
 Contract
 Policies
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14. Why Use Contracts?
 Increase rights & flexibility
 Control costs
 Increase Certainty - Reduce Need for
Lawyers (especially at termination)
 Customize to your needs
 Protect corporate interests
 Restrict post-employment conduct
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15. Employment
Agreements
 Use them!
 Do it properly
– Before there’s already an agreement
– With consideration
– Explained and understood
– Independent legal advice
– Conditional? Key Conditions
from the Immigration
Perspective

16. Employment Agreements – Key
Considerations for Immigration Compliance
 Basic Checklist:
– Duties (maintain flexibility)
– Remuneration and benefits (maintain flexibility) Bonus,
allowances, increases, promotions etc.
– Restrictive Covenants
– Vacation
– Termination
– Probation
– No conflicting obligations
– Immigration considerations…

17. Termination clauses
 With cause – may have to pay statutory
amounts
 Without cause
 Resignation
 Temporary layoff
 Probation
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18. Termination Clauses
 Enforceable if done properly
 Avoid uncertainty of “reasonable notice”
& reduce dismissal costs
 Use clear language
 Don’t go below employment standards
 Indefinite Offers of Employment
(PR)
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19. Employment Standards

20. Vacation Time
 Minimum of 2 weeks of vacation time annually.
 Some exceptions in section 3 ESA.
 Pro-rate vacation amount for alternative vacation
entitlement arrangements.
 Vacation time entitlement does not automatically
increase with length of service
 Must take vacation within 10 months of entitlement.
 Can give up vacation time, but not vacation pay
– Need approval of Director
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21. Vacation Pay
 4% of gross wages earned in the year.
– Wages include:
 Regular Earnings
 Bonuses
 Overtime Pay
 Public Holiday Pay
 Termination Pay
 Room/Board Allowances
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22. Hours of Work
Most employees are allowed to work a
maximum of:
 8 hours a day
 48 hours a week
 Some categories of employees are exempt
– ie managers, supervisors, some sales
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23. Hours of Work
Any agreements to exceed ESA maximum
hours of work must be made in writing.
 Agreements to exceed weekly maximum
require approval of the Director of
Employment Standards
 30 minute meal break for 5 hours of work
 Never let someone work more than 5
consecutive hours
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24. Overtime
 A.K.A. “Time and a Half”
 Begins after 44 hours of work in a
work week
 Any hours beyond 44 paid at 1.5x regular
rate of pay
 Calculated on a weekly, not daily, basis
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25. Overtime: Exemptions
 Managers and supervisors
 Student Employees
 IT Professionals
 Some professionals including Lawyers 
 Commissioned travelling salespersons
 Hospitality industry
 First Response/Emergency Service Providers
 Etc.
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26. Overtime
 Employee can agree to receive paid time
off “in lieu” instead of overtime pay
 Time in lieu = 1.5 hours of paid time for
each hour of overtime worked
 For variable work hours agreements, can
agree to “averaging” hours to calculate
overtime during specified period
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Stuart E. Rudner
srudner@rudnermacdonald.com
York Region: 905-530-2484
Toronto: 416-640-6402
www.rudnermacdonald.com
@CanadianHRLaw
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