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By MacLeod Law Firm, April 22, 2013 4:05 pm

At MacLeod Law Firm, we restrict our practice to labour and employment law. There are many statutes that apply to employees and employers and only a firm specializing in this area understands these numerous laws and how they apply and more importantly knows the exceptions to these general obligations. These exceptions can save employers money and allow greater management flexibility.

Legal obligations imposed on Employers that do not necessarily apply to all Employees

For example, under Ontario’s Employment Standards Act (ESA):

• dentists, doctors, lawyers, chiropractors and architects are 5 of at least twelve different types of employees who are not entitled to certain pay like overtime pay;
• these same 12 professionals and registered practitioners are not entitled to certain pay;
• certain persons like persons who are training and certain co-op students are not required to be paid;
• some employees are exempt from or can be paid less than the minimum wage of $10.25/hr;

Wouldn’t it be helpful and cost-effective for these practitioners to know this at the time of hiring or staff layoffs?

Legal Obligations Imposed on Some Employers that do not apply to all Employer

For example, property management and “building services” have one section of the ESA devoted just to them and relate only to a building.

Under this section of the ESA, when one property management company takes over from another and does not employ all the original staff, the new provider must generally provide termination pay and severance pay. In other words, the new provider must pay termination and severance pay to a person it has never employed!

Of course, just like every other law, there are exceptions to this general rule. For example, this obligation does not apply to an employee who refuses an offer of employment with the new provider that is reasonable in the circumstances.

Wouldn’t it be helpful and cost-effective for property managers to factor this into the contract negotiations?

Exceptions – The Devil is in the Details

Each year, a book called “Ontario Labour & Employment Legislation” is published. The 2012 edition is 1297 pages long and includes 14 employment laws and numerous associated regulations.

In an effort to keep you current with recent changes to Ontario employment law, MacLeod Law Firm publishes regular articles on our website.

Recent changes to statute and common employment law that an employer should know are the following:

1. The provincial government regularly amends existing laws and introduces new laws. This is called statute law. Recent blogs discussing changes to statute law include AODA and Bill 30 .
2. Ontario judges regularly change the law. This is called judge made law or the common law. Recent blogs on changes to the common law include Monitoring Employee Emails and , Wrongful Dismissal Update: What is Just Cause?

If you have any employment law questions, please contact MacLeod Law Firm at 1 (888) 640-1728 or at inquiry@macleodlawfirm.ca. To subscribe to our blog for employers, click here

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By MacLeod Law Firm, February 20, 2013 11:03 am

For over 20 years, the MacLeod Law Firm has been advising non-profit executives and boards of directors. Here are the five most important issues that non-profit boards and their executives should consider regarding employee liability:

1. A director can be held personally liable if the non-profit doesn’t comply with an employment law.

A director can be held liable for things like payroll taxes, vacation pay, and wages. Directors can also be charged and fined under various legislations, including the Ontario Occupational Health & Safety Act. Accordingly, we recommend that a non-profit organization purchase directors and officer insurance for its directors.

2. Who has the authority to hire and instruct a lawyer on behalf of the non-profit?

This depends on the non-profit’s by-laws. In most cases, someone from the board will hire a lawyer. We usually recommend that the board decide who will retain the lawyer on its behalf. In most cases, this is the Board Chair or Chair of the Human Resource Committee (if one exists). In some cases, it is the Executive Director. A special committee should be formed to specifically deal with the legal issue. The Board determines the committee’s mandate, its scope and what decisions must be voted on by the full Board.

3. Who will pay the legal and settlement costs related to a legal dispute?

If the non-profit has litigation insurance, the insurer will pay these costs. If the non-profit receives government funding, sometimes the government will pay a portion of these costs. If a settlement must be paid out of operating funds and the position can remain vacant, the non-profit may be able to use funds it receives for the position to cover the settlement.

4. How can the Board keep legal advice confidential?

Communication between a lawyer and a board is generally privileged & confidential.  Boards however, may have competing factions in dealing with a legal dispute (i.e. to offer payment or not in settling a claim). The distribution of written legal advice must be carefully managed as we have witnessed occasions where legal advice was “leaked” for strategic maneuvering.

5. What involvement should the Executive Director (ED) of a non-profit have with a lawyer?

This depends on whether there is a conflict of interest between the ED’s interests and the board’s interests and whether the ED or the board made the decision that is being challenged. We recommend that a board decide what type of employment decisions can be made by the ED and what decisions must be approved by the board. We often recommend that a board or its sub-committee approve all employee terminations assuming these decisions can be made quickly by way of conference call or email.

Please contact us at inquiry@macleodlawfirm.ca or 1-888-640-1728 if you wish to discuss the information contained in this blog.

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By MacLeod Law Firm, February 1, 2013 10:36 am

Many employers do not know about Accessibility for Ontarians with Disabilities Act (AODA).

This law came into effect in 2005 however it did not impose any obligations on most small, private sector employers until January 1, 2012. Many employers are not aware of these obligations.

About two weeks ago, one of our client’s received a letter from the Ontario government. Her organization was given 15 business days to comply with AODA. Thereafter the organization was subject to a fine of $ 50 000 for each day the organization did not comply with AODA.

This article addresses five commonly asked questions about AODA.

Does the AODA apply to your organization?

This law applies to organizations that provide goods or services to members of the public or other third parties and that has at least one employee (a provider). This includes organizations that only sell products and services to other businesses. It does not apply to sole proprietors or federally regulated organizations like banks.

Who needs to receive accessibility training?

Every person who deals with members of the public or other third parties on behalf of the provider including employees, agents, and volunteers. And every person who participates in developing the provider’s policies, practices and procedures governing the provision of goods or services to members of the public or other third parties.

What are the provider’s obligations under the Customer Standard of AODA?

Obligations include:  establishing policies, practices and procedures on providing goods or services to people with disabilities; providing people with disabilities with notice of a temporary disruption in facilities or services; and providing training to certain persons about the provision of its goods or services to persons with disabilities

When are providers required to comply with the AODA?

Most organizations were required to comply with Accessibility Standards for Customer Service (the Customer Standard) by January 1, 2012. A provider with at least 20 employees was required to file an accessibility report by December 31, 2012.

How many written policies and procedures is a provider required to prepare under the Customer Standard?

A provider can create one document that incorporates most required policies and procedures, or a provider can create more than one document. Providers with at least 20 employees are required to create more written documents.

If you have any questions about AODA compliance, you can contact us at 1888-640-1728 or at inquiry@macleodlawfirm.ca

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By MacLeod Law Firm, January 31, 2013 7:55 am

In my experience, most organizations do not explicitly address the office romance in their human resource policies. This issue can be addressed in an organization’s anti-discrimination policy or a sexual harassment policy but most don’t. Failure to do so can lead to significant legal liability.

What is an organization’s potential liability in connection with an office romance?

A wrongful dismissal action and/or a human rights complaint can arise out of an office romance. If the employer fires an employee for retaliating against a co-worker for ending an office romance then the employee can bring a wrongful dismissal action. If an employee is penalized for ending an office romance then she can file a human rights complaint.

An example of wrongful dismissal exposure

Here are some facts in connection with a wrongful dismissal case that arose out of one office romance that ended badly:

A lawyer with one of Ontario’s cities and the Mayor’s executive assistant had a consensual office romance. She ended it; he was not amused. Thereafter, he harassed her at work and at home.  At one point, he advised the Mayor to terminate her employment.  The court concluded the City had just cause to terminate the lawyer’s employment. The City had a sexual harassment policy and a policy against  harassment and discrimination, however, neither policy required an employee to disclose an office romance.

An example of human rights exposure

I was retained by a board of director a number of years ago.  The organization’s senior manager had a romantic relationship with a subordinate. Another employee claimed this relationship constituted a violation of the Ontario Human Rights Code because the relationship – which was known to a number of staff -  including alleged benefits to the subordinate was causing a “hostile work environment.” When confronted with the allegations the senior manager, a lawyer, admitted to the relationship but claimed he had no legal obligation to disclose it.

Should employees be required to disclose office romances?

When drafting an anti-discrimination policy or a sexual harassment policy, I think an employer should consider whether or not an employee should be required to disclose a romantic relationship and if so, in what circumstances and when this disclosure needs to be made.

Doug MacLeod is an employment lawyer who has been representing Ontario  employees and employers for over 20 years ( www.macleodlawfirm.ca ).  He can be reached at  inquiry@dougmacleod.com or at 1-888-640-1728.