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, others are meant to permit tougher punishment for employer contraventions of worker rights.

That includes proposed amendments to enforcement provisions of the Employment Standards Act, 2000 (ESA), which will allow for more discretion by employment standards officers in choosing a monetary penalty. It is expected that this additional discretion will be complemented by amendments to the ESA enforcement regulation to increase the maximum penalties for non-compliant employers from $250/$500/$1,000 to $350/$700/$1,500.

In addition to the increased financial sanctions, the Director will be given new powers to publish information related to a deemed contravention of the Act. This is expected to include the names of individuals who have been issued a penalty, a description and the date of the contravention, and the amount of the penalty.

With the corresponding danger of both financial and reputational damage associated with the increased penalties and powers expected under the ESA, employers should consider whether or not they are acting in compliance with the ESA and also reassess their risks related to potential non-compliance.

Bill 148 passed First Reading on June 1, 2017 and, in an expedited process, was referred to the Special Committee on Finance and Economic Affairs the same day. The Special Committee has since posted a Notice of Public Hearings on Bill 148 to be held:

  • The week of July 10, 2017 in Thunder Bay, North Bay, Ottawa, Kingston, and Windsor-Essex. Those planning to make an oral presentation in any of these locations must provide their name and contact information to Committee Clerk by 10:00am on July 4, 2017.
  • The week of July 17, 2017 in London, Kitchener-Waterloo, Niagara, Hamilton, and Toronto. Those planning to make an oral presentation in any of these locations must provide their name and contact information to Committee Clerk by 10:00am on July 10, 2017.

Alternatively, written submissions may be sent to the Special Committee by 5:30 pm on July 21, 2017.

This gives employers and other stakeholders a final chance to have their voices heard on the Bill 148 amendments.

If you have questions or concerns about these or any of the Bill 148 amendments to the Ontario labour and employment laws do not hesitate to contact the Norton Rose Fulbright Canada Labour and Employment Team.

 

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 this safety-sensitive working environment, the employer implemented a policy whereby employees were required to disclose any dependency or addiction issues before any drug related incident occurred. If they did, they would be offered treatment. However, the policy also provided that an employee would be terminated if he (i) failed to disclose his dependency or addiction; (ii) was involved in an incident and; (iii) tested positive for drugs after the incident.

In this case, the Appellant was terminated when he tested positive for cocaine after being involved in an accident, driving his loader. The evidence demonstrated that he had previously attended a training session and acknowledged his understanding of the above-mentioned policy. In addition, the Appellant admitted to using cocaine on his days off, but insisted he did not know that he suffered from addiction until after he was terminated.

Mr. Stewart filed a human rights complaint with support from his union, claiming that the termination was discriminatory on the grounds of physical disability – namely his cocaine addiction or dependency.

The Alberta Human Rights Tribunal concluded that although Mr. Stewart had a disability, he was not terminated because of this disability but rather for breaching the employer’s drug addiction disclosure policy. This conclusion was upheld by the Court of Queen’s Bench and later by the Alberta Court of Appeal.

In a majority decision (8 to 1), the Supreme Court upheld this conclusion. Although there are some differences of opinion on the question of whether a prima facie case of discrimination had been established before the Human Rights Tribunal, the eight judges composing the majority agreed that the employer’s safety objectives and responsibilities were serious enough to justify the implementation of the policy because, in such working environments, it is crucial to deter employees from using drugs in a manner that could negatively affect their work performance and potentially lead to devastating consequences.

A more detailed newsletter will be published soon but for now, we can conclude that employers with safety-sensitive workplaces can manage the risks posed by drugs or alcohol in the workplace by implementing a policy which requires employees to disclose potential drug or alcohol dependencies. When such a policy accommodates employees who comply with it and disciplines employees who don’t, an employer may impose disciplinary sanctions upon employees who fail to disclose their addiction, regardless of whether they acknowledge their addiction or not.

Continuing reform of the Heavy Vehicle National Law – Now is the time to ensure you comply

There has been significant activity recently in the area of safety regulation for the heavy vehicle transport industry (see our previous updates) and further reforms are on the way.

In particular, key amendments to the chain of responsibility (CoR) and executive officer liability provisions in the Heavy Vehicle National Law (HVNL) are set to commence in mid-2018.

It is critical to prepare now by examining your systems and ensuring you are in a position to comply with these new obligations.

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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 who gets to decide that? The Ontario Human Rights Commission has provided guidance to employers on this thorny issue. One suggestion that can help an employer navigate the subjectivity involved in setting dress codes is to permit staff to choose from clothing options, including pants, that are comparable in terms of style, comfort, practicality and coverage, regardless of sex or gender(1).

It is not illegal for employers to impose dress codes, provided they do not violate the Ontario Human Rights Code.  Dress code requirements that negatively impact an employee based on sex violate human rights laws.  For example, the Ontario Human Rights Commission advises against including grooming or appearance rules or expectations for women that are more onerous than those for men, or that are sexualized or based on stereotypical ideas of female attractiveness.

It’s important to remember that even when the employer is not instituting a discriminatory dress policy, employees may still complain if it hasn’t been communicated effectively. Using tact and avoiding assumptions about “proper” male or female attire is key.  The Ontario Human Rights Commission advises that employers should Include processes for handling dress code-related accommodation requests and complaints.

Written with the assistance of Milomir Strbac, summer student. 

Employment Equity: proposed harsher punitive measures

 Whilst we have made some progress, there is still a long way to go as there are many who are still holding on to outdated historic tendencies … ‘Apartheid hangover’, others call it.” These were the words of Minister of Labour, Nelisiwe Mildred Oliphant, when she launched the 17th Commission for Employment Equity Annual Report (2016-2017) (the CEE report) in May 2017.

The Employment Equity Act (EEA), Skills Development Act, and Broad-Based Black Economic Empowerment Act are the main transformative instruments to redress fundamental market inequities and to eliminate discrimination on the basis of demographic profile, race and gender, disability and HIV status. Yet, despite these measures, the CEE report demonstrates a regrettably slow pace of transformation in the workplace – black people, women, and persons with disabilities remain severely under-represented in all aspects of employment equity.

In consideration of the CEE Report, the Minister remarked that JSE-listed companies alone account for more than 50% of the companies that have been issued with fines for non-compliance. She also noted that the maximum fine for non-compliance (R2.7 million) is too small for some companies, particularly the bigger corporates, as they simply budget for it just in case they get caught.

The Minister announced that it is time to up the ante which may include promulgating the “stick” sections of the EEA as the “carrot” sections have not delivered the desired results.

One of these “stick” sections is section 53 which requires employers to furnish a certificate of compliance in order to procure state contracts. In blunt terms, non-compliant employers will be barred from doing business with the State.

The CEE has deemed it necessary and urgent to promulgate section 53 of the EEA. It believes that the imposition of this harsh punitive measure will expedite transformation, increase compliance levels and at the same time trigger financial consequences for non-compliance with the EEA.

Harsher penalties are clearly in the pipeline. Employers must ensure that they take steps to develop a workforce that is broadly representative of the population, as well as to economically develop and transform the workplace to improve the opportunities of black people, women, and persons with disabilities. These steps include:

  • Appointing an employment equity committee or consultative forum
  • Consulting employees on barriers to transformation, proposed affirmative action measures and the company’s employment equity plan
  • Prepare and implement an employment equity plan that is in line with the EEA
  • Report annually to the Director-General of Labour

This article was written by Priyanka Naidoo,  a Candidate Attorney at Norton Rose Fulbright South Africa

 

 

 

The GDPR – what does it mean for HR?

The implementation of the General Data Protection Regulation (the GDPR) on 25 May 2018 will see a replacement of the current data protection law set out in the Data Protection Act 1998 and an extension of data protection obligations. Employers process a large amount of data in relation to their employees, not only the information held on personnel files, but also data relating to their use of the computer, access cards and CCTV.  With just under a year to go until its implementation, what steps should employers be taking with respect to prepare for the new rules?

Consent

Personal data may only be processed where a legal ground is established for doing so. In an employment context this is often the fulfilment of the employment contract or may also be the legitimate interests of the business (where its interests do not prejudice the individual). However in relation to certain types of personal data (“Sensitive Personal Data”) consent is likely to the be the only ground that will apply.

The GDPR sets out stricter conditions with regard to consent. It makes it clear that consent must be freely given, specific, informed and unambiguous.  Consent will not be considered freely given if there is no genuine free choice.  Since in an employment contract there is a significant imbalance in the bargaining power of the parties, it is unlikely that consent obtained in an employment contract will be considered to be freely given and therefore there are problems with using this ground.

An employee will also have the right to withdraw consent at any time and this right must be clearly notified to the employee. It must be as easy to withdraw consent as to give it. Employers will need to ensure that a process is in place allowing for such consent to be withdrawn.

Automated decision making

A data subject has the right not to be subject to a decision made solely by automated processing if that decision affects them. This applies to profiling by a company and could apply on recruitment or on automated systems, such as automated absence policies. If such an automated system is used then the employer must establish that it can be justified and employers should start considering whether to retain that process.

Information regarding data

More information must be given to employees as to the reasons why their data is being processed. The information must be given to the employee in a concise, transparent, intelligible and easily accessible form, using clear and plain language.

The information which the employer is required to give includes, amongst other details, the source of the data, details of who will receive the data, the period for which the data is to be stored and details of the rights of the employee with regard to the data.

Employee rights in relation to their data

Under the GDPR employees will have more detailed rights in relation to the data being held in respect of them. The GDPR sets out a number of rights which extend the current rights under the existing data protection legislation: the right of erasure (“the right to be forgotten”), rectification,  restriction and the right to object to processing as well as a right to data portability.  The most difficult one of these for employers is likely to be the right to erasure of personal data without undue delay where certain grounds apply, such as where the employee withdraws consent and there is no other legal ground for the processing.

There are also changes to the data subject access request rights of employees. For example the right to impose a fee (currently £10) has been removed unless a request is manifestly unfounded or excessive, when an employer can impose a “reasonable” fee.  In addition, the time frame for providing copies of the documents has been changed from 40 days to a requirement to comply without undue delay and within one month.  It may be that the new rights will lead to an increase in data subject requests and therefore employers may want to consider reviewing the information they process in relation to employees.

Data Protection Officer (DPO)

Companies may need to appoint a data protection officer. This is necessary, where the processing is carried out by a public authority or body,  or where the core activities of the controller or the processor consist of processing operations which require regular and systematic monitoring of data subjects on a large scale or they process sensitive personal data (including criminal records data) on a large scale.  Employers can consider appointing a DPO voluntarily.

Although therefore this may not be necessary for many employers, it is a matter which an employer must consider.

Notification of breaches

Where there is a personal data breach (for example, an employee has lost a laptop containing personal data of employees in the company which is not encrypted), the employer must, without undue delay and, where feasible, not later than 72 hours after having become aware of it, notify the personal data breach to the supervisory authority. Where it isn’t possible to notify the supervisory authority within 72 hours, the employer must provide the reasons for the delay. In certain circumstances data subjects themselves are also required to be notified of breaches.

Employers need to ensure that they have policies and procedures for dealing with breaches, enabling the correct individuals to be able to determine when such a breach should be notified.

Data processing register

The requirement to maintain a registration with the supervisory authority will fall away under the new regime, but organisations will be required to keep a detailed record of all processing activities that they undertake, including for example a breakdown of all personal data that is processed, the security that is in place in relation to that data, who the data is transferred to and where it is transferred outside the EEA. This record will need to be available to the supervisory authority on request.

Steps to be taken

Whilst there is a year before the introduction of the GDPR there are steps which employers should consider taking already.

  • Perform an audit of the personal data held by the Company.
  • Compile a data processing register.
  • Understand the legal basis for processing the different types of personal data.
  • Consider the issue of where consent is unavoidable and how it can be obtained.
  • If consent is not appropriate? what are the grounds for processing the data?
  • How is this to be recorded?
  • Review any automated processing of data.
  • Does a DPO need to be appointed?
  • Review and amend the Data Protection Policy
  • Train staff in the new rules which apply.
  • Review any document retention policy
  • Review the Data Subject rights policy.
  • Given the timeframe for breach reporting, drafting a data breach reporting plan.

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 anotheDOL takes first step to rescind Obama-era persuader rule - Global Workplace Insiderr 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  union persuader activities.

The Obama-era version of the persuader rule was first introduced on June 20, 2011 and the final rule was scheduled to take effect April 25, 2016. However, implementation of the rule was barred by a nationwide permanent injunction.

The persuader rule, found in Section 203 of the Labor Management Reporting and Disclosure Act of 1959, requires disclosure of agreements or arrangements between employers and labor relations consultants under which the consultant undertakes, or agrees to undertake, activities meant to sway workers with respect to whether or not to exercise, or how to exercise, their rights to organize and bargain collectively.

Consultants must disclose the identity of their client, the retention or fee agreement, the fees received and a description of the services provided. The rule however exempts arrangements in which the consultant is providing advice regarding employee relations, and information communicated in the course of an attorney-client relationship.

Traditionally, based on the exemptions, persuader activity had to be publicly reported only if the consultant had direct contact with employees.

This allowed companies to contract with law firms and labor relations consultants during union organization campaigns to draft scripts, talking points, letters, and conduct union avoidance seminars for management without fear that the particulars of such agreements would be disclosed.

The Obama-era version of the persuader rule would have expanded the disclosure requirement to include any advice that indirectly persuades employees regarding union organization and collective bargaining even if the consultant had no direct contact with the employees.

Reporting would be required for any activities that are clearly undertaken with an objective to persuade employees.

Thus, if an attorney were to conduct a union avoidance seminar for an employer in which he develops or assists the employer with developing anti-union tactics and strategies to be used by the employer’s representatives, or  if an attorney were contracted to draft or revise personnel policies with the intent to influence employees, such activity, and the entire agreement regarding such activity, must be disclosed under the Obama-era version of the persuader rule.

The Obama-era version of the persuader rule was thwarted when its implementation was barred by a permanent injunction on November 16, 2016.

The court expressed concern that attorneys would be forced to violate the attorney-client privilege by disclosing clients’ identities, fee arrangements, and the nature of the advice and services provided.

Under the Obama Administration, the Department of Labor appealed the court’s decision. However, the Trump Administration has signaled its unwillingness to pursue the appeal.

On May 22, 2017, the Department of Labor issued a draft version of the persuader rule that would effectively undo the Obama-era version; and on June 8, 2017, it announced that public comment on the proposed rule would begin on June 12, 2017, and last for 60 days.

The Department of Labor has cited a number of factors which prompted the rescission of the Obama-era version, including:

  1. conflicting court interpretations,
  2. the need to conduct further analysis of the statute and assess the impact on firms and attorneys seeking legal assistance, and
  3. the resource constraints the department faces when it comes to policing employers.

If implemented, the new rule will return things to the status quo and companies will continue to be able to utilize lawyers and other consultants during union organizing campaigns and collective bargaining without fear of having to disclose those activities or the details of their agreements.

As with the Obama-era version of the persuader rule, we anticipate there will be legal challenges to the version proposed by the Trump Administration.

Although the status quo will remain in effect, there will likely be some uncertainty and confusion regarding what activities are reportable and what information must be disclosed or can be withheld as advice or privileged under the attorney/client exemption.

Therefore, consultation with a lawyer is highly recommended with respect to the determination of reportable activities and prior to the filing of any reporting forms.

Do employees who are pregnant or on maternity leave enjoy any special protection in the event of redundancy in Germany?

This post was also contributed by Tony Rau, Trainee, Norton Rose Fulbright LLP (Munich).

German law provides for extensive protection of pregnant employees and employees on leave in connection with pregnancy. Regarding the latter, German law distinguishes between maternity leave (i.e. 6 weeks before until 8 weeks after childbirth – or 6 weeks before until 12 weeks after childbirth in certain cases) and parental leave (i.e. longer periods of leave granted after childbirth in order to care for newborns or children). The relevant rules are primarily aimed at protection against dismissal, but also protect against, for example, certain working conditions unfit for pregnant women, and are applicable irrespective of whether the employee is employed on a full or part time basis or for an indefinite or fixed-term period. Although not specifically tailor-made for such cases, these rules also apply in the event of a redundancy.

Protection of Pregnant Employees and Protection during Maternity Leave

Under German employment law, employees enjoy special protection against dismissal in connection with pregnancy and may not be dismissed during pregnancy or during the four months after childbirth, which – due to a recent change in German legislation – now also applies to employees who have had a miscarriage after week 12 of pregnancy. However, this only applies if at the time of the dismissal, the employer has knowledge of the pregnancy, childbirth or miscarriage or is informed thereof within two weeks after receipt of the notice letter by the employee or, without undue delay, if the employee is not responsible for the delay.

As an exception and upon request of the employer, in special cases a dismissal during the protected time periods referred to above may be declared permissible by the competent authority, but only if the reason for dismissal is not in connection with the employee’s pregnancy. German labor courts accept such a special case only if exceptional circumstances require that the interests of the employer should override those of the pregnant employee. In addition to conduct-related reasons (for example, criminal acts), German courts also accept operational reasons as a special case as long as it is not possible for the employer to continue the employment, for example in the case of an operational shutdown and if the employee cannot be redeployed elsewhere. The employer carries the burden of proof in this regard.

Additional protection afforded to pregnant employees, although not specifically relevant to redundancy situations, include restrictions regarding hardship and maternity leave (i.e. employees are not allowed to work during the period 6 weeks before and 8 weeks after childbirth, which increases to 6 weeks before and 12 weeks after childbirth in certain cases).

Protection of Employees on Parental Leave

After the birth of the child, German employment law entitles parents to take parental leave. It may be taken by either parent for a duration of up to three years up to the child’s third birthday, while a period of up to 24 months may be taken between the child’s third and eighth birthday. During parental leave, employees enjoy similar protection against dismissal as in connection with pregnancy. The employer may not dismiss the employee following the making by an employee of a request for parental leave, noting that such protection against dismissal applies no earlier than 8 weeks before the commencement of parental leave before the child’s third birthday or 14 weeks before the commencement of parental leave requested for any period between the child’s third and eighth birthday. Again, upon request of the employer, the competent authority may in special cases declare a dismissal permissible. Substantially the same grounds for dismissal are recognised by German courts as for an employer’s request for dismissal of an employee in connection with pregnancy (see above) which have been laid down in detail in administrative provisions.

Consideration of Employees in Connection with Pregnancy and Employees on Leave Periods during Redundancy Preparation

In business units with more than ten employees (more than five if hired before 31 December 2003), and if an employee has been with the company for more than six months, a specific justification for any dismissal is required. Redundancy qualifies as a sufficient justification in this sense. The requirements of a redundancy are fulfilled if the workplace of the affected employee no longer exists for operational reasons and if it is not possible to offer suitable alternative employment. The employer needs to compare all employees who are “exchangeable” and carry out a so-called “social selection” on the basis of certain criteria (length of service, age, maintenance obligations, severe disability). The employer may then dismiss only those employees who require the least “social protection”, i.e. have been at the company for only a short period, have no family, are young enough to find alternative jobs, etc. Employees who enjoy the aforementioned special protection against dismissal are to be included in such social selection, if the competent authority has declared the dismissal permissible.

For more information on employees’ rights on redundancy in Germany please see our previous post.

For more information on recent changes in particular of the German Maternity Protection Act (Mutterschutzgesetz MuSchG) please see our previous post.

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 human rights performance in order to encourage companies to improve their human rights practices.

The pilot project rated 98 of the largest publicly traded companies in the Agricultural Products, Apparel, and Extractive industries in the world based on 100 human rights indicators, the  UN Guiding Principles on Human Rights, and the companies’  publicly available human rights policies, processes, and performance.  The three focus industries were selected following multi-stakeholder consultation, taking into account their high human rights risks, the extent of previous work on the issue, and global economic significance.

A number of key messages emerged from the results.  In general, the 2017 Benchmark report reveals fairly low scores, with the vast majority of companies scoring under the 50% mark. Of the small group of companies that scored above 50%, only three placed in the 60-69% range. The report concludes that such results reflect the “relatively early stage most companies are at in implementing the UN Guiding Principles on Human Rights.”

The Benchmark calls on businesses to implement corporate responsibility to respect human rights under the UN Guiding Principles, and to study the 2017 Benchmark report to see where improvements can be made.

As the National Post has pointed out, the Benchmark is not without its critics.  Further, it remains to be seen whether the not-for-profit company leading the charge will expand the rankings beyond the initial three focus industries.

Written with the assistance of Kevin Schoenfeldt, summer student.

Queensland introduces chain of responsibility legislation for non-conforming building products

The Queensland Government proposes to introduce comprehensive changes to its building and construction laws through the amendments to the Queensland Building and Construction Commission Act 1991 (QBCC Act) proposed by the Building and Construction Legislation (Nonconforming Building Products – Chain of Responsibility and Other Matters) Amendment Bill 2017 (Amendments), introduced in to Parliament on 26 May 2017.

The Amendments will address the growing problem of non-conforming building products (NCBPs) and attempt to eliminate the use of unsafe building products across Queensland building sites by introducing a chain of responsibility for the supply of building products. The compliance and enforcement powers of the regulator, the Queensland Building and Construction Commission (QBCC), will also be increased. The Amendments require critical attention for all participants in the building product supply chain, including designers, manufacturers, importers, suppliers and installers (Supply Chain Participants).

NCBPs are building products and materials that are marketed and supplied with misleading claims about their quality or purpose, or do not meet the required standards. Continue reading

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