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By MacLeod Law Firm, August 10, 2012 8:36 pm

Unpaid Interns – Navigation starts here!

Did you know that many so-called unpaid interns are really employees who are entitled to be paid? In Ontario, there is no law which permits an employer to unilaterally designate a person as an unpaid intern. Certain trainees and students however can be hired as unpaid interns.

A Trainee is not an Employee

Under the Employment Standards Act (the “ESA”) , a trainee is deemed not to be an employee. To qualify as a trainee under the ESA, six (6) conditions must be met such as a requirement that the training be similar to that which is given at a vocational school.

A Student taking an Approved Course is not an Employee

Under the ESA, an individual who performs work under a program approved by a college of applied arts and technology or a university is deemed not to be an employee. There are other work placement exceptions set out in the ESA.

An Employee is generally entitled to be paid Ontario’s Minimum wage

If a trainee does not meet the prescribed conditions, or a student does not satisfy the work placement requirements then a so-called intern could very well be  entitled to be paid minimum wage for all hours worked. In addition, the intern may be entitled to additional compensation including vacation pay, statutory holiday pay and overtime pay.

Lessons to Be Learned

1. Even if an individual agrees to participate in an unpaid internship the employer may still be liable to pay the person, among other things, minimum wage for all hours worked.
2. An employer should enter into a written internship agreement with every intern and this agreement should set out the terms and conditions of the internship. If the person is being hired as a trainee within the meaning of the ESA then all prescribed conditions should be included in the agreement.

If you have any employment law questions, please call us at 1–888-640-1728 or email us at inquiry@macleodlawfirm.ca. You can follow us on twitter (@MacLeodLawFirm) or subscribe to our employment law blog at www.macleodlawfirm.ca/employers 

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By MacLeod Law Firm, July 27, 2012 11:50 am

Hiring Employees in Ontario, Canada

If you are thinking about hiring employees in Ontario, Canada here are five issues you’ll need to consider:

1.    Do federal or provincial laws apply?

About 90% of Ontario employees are governed by provincial laws.

Federal laws apply to employees who work for federal undertakings such as the federal government, banks, and telecommunication companies.

2.    What provincial laws apply?

There are several Ontario employment statutes including

-       the Employment Standards Act which sets out numerous minimum standards including hours of work,  minimum notice of termination, and severance pay;

-       the Human Rights Code which prohibits employment discrimination on 16 prohibited grounds such as sex, race, sexual orientation, and disability;

-       the Occupational Health & Safety Act  which imposes numerous safety obligations on, among others, owners, directors, and employers;

-        the Workplace Safety & Insurance Act which determines compensation for workplace injuries;

-       the Pay Equity Act which mandates equal pay for work of equal value; and

-       the Accessibility For Ontarians with Disabilities Act which requires employers to take measures to accommodate people with disabilities

3.    What judge made laws apply?

There are many legal proceedings that an employee can bring against his or her former employer including

-       a wrongful dismissal action if the employer did not provide the employee with “reasonable notice of termination. Damages are generally up to 24 months remuneration.

-       a no cost complaint under the Employment Standards Act where orders cannot generally exceed $ 10 000, or under the Human Rights Code where damage awards are theoretically unlimited.

-       an action in the courts for violating an employee’s privacy rights (i.e. the tort of the inclusion upon seclusion.

4.    What laws apply to unionized employees?

The laws mentioned above apply to both union and non-union employees.

About 28 % of Ontario’s workforce is unionized.

The process for unionizing an employer is set out in the Ontario Labour Relations Act. There is a different labour relations regime for the construction industry. Generally, a union files a written certification application, the employer has two days to respond, and an employee vote can be scheduled within five days of the union application.

5.    How does one navigate Ontario’s Employment Law waters?

There are numerous free on-line resources, particularly from the Ontario Ministry of Labour.

There are scores of employment law lawyers in Ontario particularly in the Greater Toronto Area.

Some employment law firms offer complimentary seminars on different employment law issues. In addition, a number of employment lawyers tweet and blog on employment law issues.

If you have any employment law questions, please call us at 1–888-640-1728 or email us at inquiry@macleodlawfirm.ca. You can follow us on twitter (@MacLeodLawFirm) or subscribe to our employment law blog at www.macleodlawfirm.ca/employers 

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By MacLeod Law Firm, July 20, 2012 9:20 pm

A Wrongful Dismissal Action – What are the Costs?

The MacLeod Law Firm recently settled a wrongful dismissal case for a client. The costs of litigation can be considerable. There are lessons for employers to learn from this case.

The Basic Facts A former managerial employee sued our client for wrongful dismissal. He was terminated after about three years of continuous service. He had previous employment with our client. Ontario courts will sometimes recognize an employee’s total length of service when determining reasonable notice so there was a risk that a court would conclude he was entitled to a lengthy reasonable notice period.

The Employee’s Lawyer The employee’s lawyer took an unreasonable settlement position and almost immediately started litigation.

The Employee’s New Job About four months after he was terminated, the former employee found a new job.

Formal Offer to Settle We served a formal offer to settle on the employee’s lawyer and he accepted.

Details of the Settlement Here is how the settlement monies were allocated: 33% to the former employee which was about one month’s pay; 40% to the former employee’s lawyer; 20% to the government for Employment Insurance overpayment; and,  7% to the government for withholding tax on the payment made to the former employee

Lessons to be Learned

1. Require all new employees to sign an employment contract with a properly drafted termination clause. (This was a new client who did not have an employment contract when we were retained!) In this case, the employer could have limited its liability to three weeks termination pay with an employment contract and avoided litigation altogether.
2. A formal Offer to Settle at the right time in the litigation process is a powerful tool.
3. Wrongful dismissal litigation is expensive for all parties including the successful party. One way for an employer, who does not have an employment contract with a termination clause, to avoid litigation is to prepare a fair severance package and to treat the employee with dignity and respect when the employee is terminated. In this scenario, unless just cause for termination exists, we often recommend that the employee be specifically told that the termination is not performance-related and suggest that the Company offer to provide the employee with a positive reference. In our experience, the person is much less likely to litigate in these circumstances.

If you have any questions about employment contracts, the contents of severance packages, or wrongful dismissal litigation, please call Macleod Law Firm at 1–888-640-1728 or email us at inquiry@macleodlawfirm.ca

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By MacLeod Law Firm, December 17, 2011 12:49 am

Many employers are completely unaware of their obligations under this law. There are a myriad of obligations that are imposed on employers under this law. This blog addresses a small number of these obligations. If you have never heard of this law, read on!

Who must comply with the Act?

Private and public sector employers must comply with the Act, including charities and non-profits.

Are small employers exempt from the Act?

No, however, employers with fewer than 20 employees have fewer obligations under the Customer Service Standard.

When are employers required to comply with the Act? (Some examples)

As of January 1, 2012 (that’s in less than 2 weeks!!!), private sector employers who provide goods or services to the public must comply with the Customer Service Standard.

As of January 1, 2012, all employers must provide individualized emergency response information to employees with disabilities if the employer is aware of the need for accommodation and if the specific disability requires individualized information.

As of January 1, 2016 most organizations that employ 50 or more people will be required to comply with the Employment Standard.

As of January 1, 2017 most organizations that employ fewer than 50 people will be required to comply with the Employment Standard

What is a Customer Service Standard? (Some examples)

• Must communicate with persons with disabilities in ways that account for their disabilities.
• Must allow people with disabilities to be use guide dogs or service animals, unless otherwise excluded by law.
• Must train employees, volunteers and others who interact with the public about a number of specified accessibility issues.

What is an Employment Standard? (Some examples)

• Must notify the public and employees about the possibility of accommodation during the hiring process.
• Must create accommodation plans for employees with disabilities.
• Must provide employees with information required for the performance of their jobs in accessible formats when employees request such information.

More information on this law is available at http://www.mcss.gov.on.ca/en/mcss/programs/accessibility/customerService/index.aspx

To download a copy of our publication, “20 Areas to Consider When Conducting Your Own Workplace Audit”, please visit www.macleodlawfirm.ca/employers

If you have questions about the Accessibility for Ontarians with Disabilities Act, please contact us at inquiry@macleodlawfirm.ca or call us at 1-888-640-1728 at your convenience.