Topic: North America

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Dismissed employee failed to mitigate by choosing retraining over applying for comparable re-employment

In Benjamin v. Cascades Canada ULC, the Ontario Superior Court of Justice reviewed the law surrounding an employee’s duty to mitigate their common law reasonable notice damages arising from wrongful dismissal. In such cases, the onus is on the employer to establish a failure to mitigate, and that onus requires the employer to establish that … Continue reading

Preparing for the changes to Ontario’s vacation entitlements proposed in Bill 148, Fair Workplaces, Better Jobs Act

  Currently, employees covered by the Employment Standards Act, 2000 (ESA) are entitled to at least two weeks of vacation time after completing 12 continuous months of employment (whether active or inactive). Vacation pay is addressed separately from vacation time, and employees are currently entitled to at least 4% of their wages as vacation pay.  … Continue reading

Ontario Bill 148, Fair Workplaces, Better Jobs Act proposes key reforms for bargaining unit review

  Under the current Labour Relations Act, 1995 (“LRA”), once a bargaining unit is certified, any changes to the composition of the bargaining unit are voluntary. Bill 148 proposals, if passed, would amend the LRA to provide that: the Ontario Labour Relations Board (“OLRB”) can review the structure of a bargaining unit if it is … Continue reading

Overtime Entitlement Did Not Extend to Time Spent at Labour Management Meetings

In Fabrene Inc. v International Association of Machinists and Aerospace Workers, Local Lodge 2922 employees who were Union Grievance Committee (“UGC”) members unsuccessfully argued that the hours they spent attending Labour Management meetings on their days off constituted compensable overtime. Factual Background The UGC members worked 12-hour day shifts on Monday and Tuesday, 12-hour night … Continue reading

Ontario Bill 148, Fair Workplaces, Better Jobs Act, 2017 proposes considerable changes to equal pay for equal work provisions

The recently released Fair Workplaces, Better Jobs Act (Bill 148) proposes considerable changes to Ontario’s Employment Standards Act (ESA), including a number of new equal pay for equal work provisions. If passed, Bill 148 would considerably expand the current ESA equal pay provisions, which only contemplate equal pay between the sexes. In particular, the proposed … Continue reading

Bill C-4: One step forward, two steps back

On June 19, House Government Bill C-4, « An Act to amend the Canada Labour Code, the Parliamentary Employment and Staff Relations Act, the Public Service Labour Relations Act and the Income Tax Act », received Royal Assent after an interesting showdown between the Government and the Senate. The objective of this Bill, which constituted an electoral … Continue reading

A new criterion for unreasonableness: The obligation for adjudicators to demonstrate their consideration of progressive discipline

In a recent decision of the Federal Court of Canada, the Court had occasion to apply the Supreme Court of Canada’s decision in Wilson v Atomic Energy of Canada ltd (Wilson) for one of the first times. In his decision, Justice Diner found that it was unreasonable for an adjudicator not to consider both the … Continue reading

Ontario Bill 148, Fair Workplaces, Better Jobs Act proposes a 32% increase in the minimum wage

The Ontario government has proposed to increase the general minimum wage to $14.00 per hour on January 1, 2018, and to $15.00 per hour on January 1, 2019. Additionally, the special minimum wage rate for students under 18, liquor servers, hunting/fishing guides and homeworkers will remain in effect, with increases by the same percentage as … Continue reading

Tougher Penalties for ESA Non-Compliance under Ontario Bill 148, Fair Workplaces, Better Jobs Act, 2017

Tougher Penalties for ESA Non-Compliance under Ontario Bill 148, Fair Workplaces, Better Jobs Act, 2017 The proposed Fair Workplaces, Better Jobs Act, 2017 (Bill 148) represents the first major overhaul of Ontario’s employment and labours in over two decades.  While many of the Bill 148 amendments are aimed at enhancing the substantive rights of workers, … Continue reading

An important decision on the implementation of drug and alcohol policies in safety-sensitive workplaces issued by the Supreme Court of Canada

Yesterday, the Supreme Court of Canada issued a much awaited judgment on an appeal from an Alberta Court of Appeal decision in the Stewart v. Elk Valley Coal Corp. case. Mr. Stewart (the Appellant) worked in a mine operated by the Elk Valley Coal Corporation, driving a loader. As a means to ensure safety in … Continue reading

Summer Dress Codes

With summer fast approaching appropriate summer dress codes are back in the spotlight. Frequent discussion takes place regarding the degree to which an employer can determine what an employee is permitted to wear. Inappropriate work attire can be problematic to deal with for employers.  What is appropriate summer work attire in a given workplace, and … Continue reading

DOL takes first step to rescind Obama-era persuader rule

After announcing the withdrawal of two union friendly administrator interpretations issued by the Obama Administration, the US Department of Labor delivered another blow to unions by announcing that it will take public comment beginning June 12, 2017, on a proposed rule to rescind the Obama-era version of the persuader rule which requires companies to report  … Continue reading

Corporate Human Rights 2017 Benchmark shows companies at relatively early stage in implementing UN Guiding Principles on Human Rights 

The Corporate Human Rights 2017 Benchmark is a pilot project led by a not-for-profit company backed by a number of global investment management firms, governmental departments in the UK, Switzerland and the Netherlands, and various international foundation.  The overarching goal of the Benchmark is to create the first open and transparent public benchmark of corporate … Continue reading

Unauthorized Access of Records – Nurse’s Job Saved by Late Apology

The BC Labour Relations Board recently upheld the reinstatement of a nurse who, on multiple occasions over an extended period, accessed private health authority records for personal reasons and without authority.  The Board upheld the arbitration award that ordered her reinstatement based in part on the nurse’s 11th hour apology.  The decision illustrates the challenge … Continue reading

Ontario Government intends to introduce proposed legislation, The Fair Workplaces, Better Jobs Act, 2017

Earlier today Ontario Premier Kathleen Wynne and Labour Minister Kevin Flynn unveiled the government’s formal response to the Changing Workplaces Review Final Report and the special advisors’ 173 recommendations for change to the Employment Standards Act, 2000 (ESA) and the Labour Relations Act, 1995 (LRA). Wynne’s Liberal government has not embraced all of those recommendations.  … Continue reading

How are pregnant employees in California protected in the event of a redundancy?

Both federal and California laws provide numerous safeguards to protect pregnant employees before, during, and after childbirth. Protections include prohibitions against discrimination during hiring and employment, and against termination based on pregnancy or pregnancy-related conditions, even if legitimate bases also exist for the employer’s conduct. When federal and California laws differ, the employer must provide … Continue reading

Sweeping Changes to Ontario’s Labour and Employment Laws Proposed in OCW Final Report

Today the Government of Ontario released the much anticipated Changing Workplaces Review Final Report.  As special advisors C. Michael Mitchell and the Honourable John C. Murray note in their report, this is the first independent review in Canada to consider specific legislative changes to both employment standards and labour relations in a single process.  Their … Continue reading

Minimum wage increase in Québec: some employers are flexing their muscles

On May 1, 2017, the minimum wage in Québec was raised from $10.75/hr to $11.25/hr. Although not as substantial as the increases that have recently been implemented in other North American jurisdictions, this raise is still significant when compared with the average annual increase implemented in the province for the past 10 years. Some employers … Continue reading

Butt out! (ergonomically speaking): British Columbia Court of Appeal outlines management and union rights in employee accommodations

On February 28, 2017 the British Columbia Court of Appeal issued a decision that should be welcomed by unionized employers dealing with accommodating employees.  In Telus Communications Inc. v. Telecommunications Workers’ Union, 2017 BCCA 100 the issue was whether the employer was able to deal directly with its unionized employees when attempting to accommodate those … Continue reading

The Supreme Court of Canada will hear a pay equity case

In October 2016, we informed our readers and clients that the Québec Court of Appeal had unanimously upheld a Superior Court decision finding certain sections of the Pay Equity Act (Act) unconstitutional. The sections of the Act in question are those relating to retroactivity, employee participation in audits and posting of audit results. As was expected, … Continue reading

Expanding definition of “sex discrimination” under Title VII

The Judiciary continues to act where Congress will not All employment attorneys—and most employers—know that Title VII bars discrimination based on certain enumerated personal characteristics: race, color, religion, sex, and national origin. It has long been the case that “sex” meant biological sex only, i.e., discriminating against a woman because she is a woman, or … Continue reading

One step closer to legalization

On April 13th, the federal Liberal government tabled the much anticipated Cannabis Act. While many recreational marijuana users now have reason to rejoice, employers across the country are left with unanswered questions as to how the upcoming legalization will affect the workplace. It’s important to note that although recreational use of cannabis is expected to … Continue reading

Not on the Menu: Ontario Human Rights Commission releases findings from restaurant dress code inquiry in new report

The Ontario Human Rights Commission (the “Commission”) recently released the findings from its inquiry on sexualized and gender-specific dress codes in a report entitled, Not on the Menu: Inquiry report on sexualized and gender-based dress codes in Ontario’s restaurants. A series of complaints from restaurant workers prompted the Commission to release a policy position in … Continue reading
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