Comments (0)

By MacLeod Law Firm, May 22, 2013 12:09 pm

Geographical barriers don’t exist in today’s business world. But when your employees travel outside Ontario for work, have you considered which employment laws apply? And if this is on a regular basis, you may be on the hook for extra pay.

Did you know that the Employment Standard Act (ESA) applies to work performed OUTSIDE Ontario if it is a continuation of work performed in Ontario? And if the work is not a continuation of work performed in Ontario, did you know the law of the other province generally applies?

Additionally, in some cases employees are entitled to be paid for travel time. In a recent ruling, one adjudicator has stated: “…there is a qualitative difference between …the time it takes to travel from one’s home to one’s place of work, and the time one travels on the employer’s business.  The latter is compensable as time worked, while the former is not.”

Navigating the Laws when Employees Travel

For employees who travel outside Ontario as part of their job, is your organization complying with the applicable employment standards law?

For example, a non-managerial employee travelling to Manitoba, Saskatchewan, Alberta or British Columbia is generally entitled to overtime pay after 8 hours in a day as opposed to after 44 hours in a week which is the minimum standard in Ontario.

In this regard, section 5 (2) of the ESA states:  If one or more provisions in an employment contract or in another Act that directly relate to the same subject matter as an employment standard provide a greater benefit to an employee than the employment standard, the provision or provisions in the contract or Act apply and the employment standard does not apply.

In this example, is your organization paying the greater overtime benefit? Are there ways of minimizing this?

Yes, You Don’t Necessarily Have to Pay the Higher Employment Standard

For employees travelling outside Ontario, an employer may be able to minimize the amount of additional compensation owed because of a more generous employment standard within the employee’s contract.

Alternatively, in some provinces the employer may be able to obtain an exemption from the more generous minimum standard.

Questions to be Asked When Employees Travel out of Province

1.  If an employee is travelling to another province, are the minimum employment standards in that province greater than in Ontario?

2. If so, what can be done to minimize any additional costs that are associated with a higher minimum standard? In particular, can your organization enter into a contract with the employee to address issues that arise in connection with the out of province work?

3. Can your organization apply for (i) a permit or (ii) an exemption from the higher employment standard in the other province?

Doug MacLeod

MacLeod Law Firm: Employment & Labour Lawyers

www.macleodlawfirm.ca

Comments (0)

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

Comments (0)

By MacLeod Law Firm, March 4, 2013 4:15 pm

The Main Issue Regarding a Non-Solicitation Clause: Will Departing Employees Take Customers With Them?

To plan for this worst case scenario, we like to ask at the time of hiring, “Could this person take your customers to a competitor if he or she quits?”

The Solution: A Non-Solicitation Clause in the Employment Agreement

If the potential for poaching customers exists, the employer needs to protect its client relationships. The best way to do this is by requiring the employee to sign an employment contract with a non-solicitation clause.

In the non-solicitation clause, the employee agrees to neither: (i) solicit certain customers for a specified period of time; nor (ii) take advantage of any business opportunity that came to his or her attention while employed.

The Non-Solicitation Clause Must be Reasonable to be Legally Enforceable

For the courts to enforce this kind of agreement, it must be reasonable between the parties with reference to the public interest. The court will balance the public interest in maintaining open competition and discouraging restraints on trade on the one hand, and on the other hand, the right of an employer to the protection of its client relationships.

The non-solicitation clause will not be enforced if it is ambiguous. In this regard, the Supreme Court of Canada has stated:  “if (a non-solicitation agreement) is ambiguous, in the sense that what is prohibited is not clear as to activity, time, or geography, it is not possible to demonstrate that it is reasonable. Thus, an ambiguous restrictive covenant is, by definition, prima facie unreasonable and unenforceable”

In other words, when deciding whether to enforce a non-solicitation clause, the court will consider whether the prohibition is too broad. For example, is the employee forbidden from contacting clients with whom he or she has had no prior dealings? Does this prohibit the employee from working in a geographic location where he or she has not worked before? And, does this non-solicitation clause impose a period that exceeds the employer’s normal sales cycle?

It is important to draft a non-solicitation clause that fits the employer’s specific circumstances because the courts will not read down or blue pencil it. This means that the courts won’t amend it to make it enforceable and the employer needs to get it right the first time.

If you have any questions about non-solicitation clauses or employment agreements, you can reach us at 1-800- 640-1728 or at inquiry@macleodlawfirm.ca.

Comments (2)

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.

Comments (0)

By MacLeod Law Firm, January 21, 2013 2:37 pm

“Just cause” is a legal term that means a non-union employer is justified in terminating an employee without ANY notice of termination at common law.

The courts decide whether or not just cause exists unless the employee has agree that certain misconduct constitutes just cause in an employment contract.

The onus is on an employer to prove it had just cause in terminating the employee.

What must an employer prove?

When deciding whether “just cause” exists, the Ontario Court of Appeal has stated:

” …the core question for determination is whether an employee has engaged in misconduct that is incompatible with the fundamental terms of the employment relationship. The rationale for the standard is that the sanction imposed for misconduct is to be proportional – dismissal is warranted when the misconduct is sufficiently serious that it strikes at the heart of the
 employment relationship.”

Three examples where an Employer has proven Just Cause

1. Driving an employer’s vehicle while drunk. After 32 years of service, an employee was returning to the workplace from a customer visit.  While driving, the employee was responsible for a serious accident which destroyed the vehicle and left him with life threatening injuries. Although finding just cause, the court stated: “ Normally, a single and isolated incident will not be sufficient cause to dismiss a long service employee, particularly one with a clean disciplinary and performance record.” And, “Intoxication at work does not automatically justify termination.”

2. Falsifying and submitting medical benefits claims forms,  lying to the employer’s group insurer, and failing to forthrightly admit this misconduct when asked during an employer investigation. At the time of her termination, this first level manager had been employed with the employer for 19 years.

3. Engaging in personal and sexual harassment of a co-worker. The employee, a lawyer with 13 years service and no prior discipline, persisted in pushing a romantic relationship with a female co-worker after she repeatedly told him that she was not interested. Harassment included the employee communicating with the co-worker’s colleagues and superiors and his attempt to have her employment terminated.

To discuss what kind of evidence is needed to prove just cause in a particular case, please email us at inquiry@dougmacleod.com or call us at 1-888-640-1728.