Tag archives: employee benefits

Overtime overhaul – small businesses want more time to prepare

With just about 90 days to go before the U.S. Department of Labor’s final rule dramatically updating overtime regulations is scheduled to go into effect, small business owners have petitioned the DOL’s Wage and Hour Division seeking more time to prepare for and implement changes to the way they operate their businesses so that they can remain compliant with wage laws. In a parallel move, on September 28, 2016, the U.S. House of Representatives also voted in favor of the Regulatory Relief for Small Businesses, Schools and Nonprofits Act, which would delay implementation of the DOL’s final overtime rule … Continue Reading

The importance of mobility clauses for Quebec employers

In order to meet their organizational needs, employers may need to relocate their employees’ workplace. However, relocating employees can be risky business for employers.

The place of work is an important part of an employee’s working conditions. When employers make substantial changes to their employees’ working conditions, said employees can potentially claim that their original employment contract has been terminated. This is referred to as a “constructive dismissal”.

When it comes to relocating an employee’s workplace, a substantial change is defined by the relocation involving a relatively large distance, and impacting the employee’s daily life. Generally, the courts will evaluate … Continue Reading

Alberta on Track to Raise Minimum Wage to $15-per-hour by 2018

Alberta’s New Democratic Party (NDP) government is moving forward on its 2015 campaign promise to raise minimum wage to $15-per-hour by 2018. The raise to $15-per-hour is being applied incrementally. On October 1, 2015, Alberta’s minimum wage rose from $10.20 to $11.20. For those who serve liquor, the minimum wage rose from $9.20 to $10.70. The next wage increase is scheduled for October, 2016 and will increase the minimum wage by $1 to $12.20-per-hour. The following two increases will occur in October 2017 and 2018.

The upcoming minimum wage increase will apply to employees in almost every industry, … Continue Reading

Improper Comments on Social Networks: A Serious Cause Justifying Dismissal?

The employment contract of a “Montreal Impact Academy’s U14” team coach was recently terminated as he made racist comments on his private Facebook page following the defeat of France against Portugal in the Euro 2016 final. In a news release, the Montreal Impact shortly dissociated itself from these comments, considering that they were totally unacceptable and against the fundamental values of the club and of the Academy.

This case is interesting in that it raises the issue of whether an employer can lawfully dismiss an employee having an improper conduct on the Internet. It serves as an accurate example of … Continue Reading

Whose jurisdiction is it anyway?

In the case of Brown v. University of Windsor, involving the University of Windsor and the president of its unionized Faculty Association, the Ontario Court of Appeal had a chance to clarify the situations in which situations arbitrators would have exclusive jurisdiction over labour disputes. The claim involved allegations that the University failed to satisfy requirements of the Employment Insurance Premium Reduction Program (“EIPRP”) governed by the Employment Insurance Act, S.C. 1996, c. 23.

The requirements of the Act were not part of the collective agreement, which gave rise to the Faculty Association’s belief that an arbitrator had no … Continue Reading

Employees must participate in the accommodation process

It’s never easy to talk about mental illness – particularly not with your employer. However, the British Columbia Human Rights Tribunal recently held that even if it’s uncomfortable, an employee may have the obligation to discuss their condition with the employer in order to allow the employer to come up with a proper accommodation.

Last April, in K.B v S.S, 2016 BCHRT 61, the British-Columbia Human Rights Tribunal found that an employee failed in his duty to work with his employer to come to a reasonable accommodation. Finding an accommodation requires the cooperation of both parties and without knowledge … Continue Reading

Ontario Court Upholds Employment Agreement Provision that Limited Employee’s Notice of Termination to Statutory Minimum.

In Oudin v. Le Centre Francophone de Toronto, The Ontario Superior Court dismissed a motion for summary judgment brought by an employee who alleged that the termination provision in his employment agreement was unenforceable. This provision limited his entitlement to notice of termination to the minimum required by employment standards legislation. The court did find that a related provision in the employment agreement violated the legislation and was invalid; however, the judge held that the invalid provision could be excised pursuant to a severability clause in the agreement without affecting the integrity of the remainder of the agreement and … Continue Reading

Fixed costs for fixed-term contracts

What happens when an employer terminates an employee on a fixed-term contract? The Ontario Court of Appeal in Howard v Benson Group Inc. recently weighed in on the issue. The Court held that the employee was entitled to an amount equal to his salary and benefits for the unexpired term of the employment contract rather than reasonable notice (which may have been less).

The facts were simple. The employee entered into a five year employment agreement but was terminated after 23 months.  The agreement expressly provided for early termination, including termination without cause.  The motion judge found the termination … Continue Reading

New Considerations for Public Sector Employers

The Supreme Court of Canada recently rendered its decision in Commission scolaire de Laval v. Syndicat de l’enseignement de la région de Laval, 2016 SCC 8, which clarified two important legal points for public sector employers.

First, the Court rejected the notion that a public sector committee that makes disciplinary decisions can refuse to provide evidence about its deliberations on the basis of “deliberative secrecy.” The Court held that the relationship between public sector employers and employees is not public in nature, and that it was therefore reasonable for the arbitrator to order the members of the disciplinary committee … Continue Reading

Bit-wise operations: paying employees in Bitcoin

Cryptocurrencies such as Bitcoin are very much “in vogue”. “Currencies” like bitcoin are maintained by computer-based algorithms, rather than the government or a central bank. They are so popular  that it’s been reported on in the past that employees have been rejecting Canadian dollar salaries for cryptocurrencies such as Bitcoin.

That said, there are not many financial benefits to an employer for paying employees in bitcoin, but there may be recruitment benefits. Employees can be attracted by the possibility to receiving wages in Bitcoins.  Bitcoins offer users anonymity, low transaction fees, and greater freedom from freezes or interruptions that banks … Continue Reading

Employer tagged for misrepresenting criteria for coverage under LTD policy

In January 2016, the Supreme Court of British Columbia released its decision in Feldstein v 364 Northern Development Corporation, 2016 BCSC 108. The employee in that case suffered from cystic fibrosis, a chronic, degenerative disease primarily affecting the lungs, since the age of nine. The employee stated that given his condition, he would not have accepted employment unless it included sufficient and appropriate LTD benefits, i.e. a benefit equivalent to a significant portion of his monthly salary and which did not preclude pre-existing health conditions.

After two interviews, the employee then received an email offer of employment. He responded … Continue Reading

Why “no” isn’t always bad faith: Bhasin v. Hrynew applied in Ontario

In the 2014 decision of Bhasin v Hrynew, the Supreme Court of Canada held that the duty of good faith requires that an insurer deal with its insured’s claim fairly, both with respect to the manner in which it investigates and assesses the claim, and the decision whether or not to pay it. This decision has and will be the subject of much interpretation by our courts (see my partner, Bill Armstrong’s, recent post here).

In Bonilla v Great-West Life Assurance Company et al, the Ontario Superior Court applied the Supreme Court of Canada’s reasoning in  … Continue Reading

Practical Implications of Bhasin: Good Faith in Exercising Discretionary Power

Since Bhasin v Hrynew, 2014 SCC 71, courts have been applying  the “organizing principle” of good faith in all contractual relationships thereby delinating its scope in different cirucmstances. One recent decision applying this principle addressess the circumstances where an employer excercises a discretionary contractual right to effectively deny an employee his compensation under a benefits plan.

In Styles v Alberta Investment Management Corporation, 2015 ABQB 621, the Plaintiff employee received a offer of employment where (i) the Defendant employer could terminate the employee without cause and (ii) the employee would be entitlted to participate in a long term … Continue Reading

Go-Karting Gone Awry in Ontario – Paid Volunteer can still sue Race Track for injuries

In what may be considered a particularly rare occasion, the Ontario Court of Appeal has addressed an employment law issue in the context of Go-Kart racing.

In this case, the appellant volunteered to be a “race director” for a Go-Kart race, for which he received a small stipend. When a Go-Kart driver crashed into hay bales that lined the corner of the race track, the appellant was injured. He sued both the employer and the Go-Kart driver for his injuries. His claim was dismissed in a summary judgment because he had signed a waiver releasing the employer from liability … Continue Reading

Highest court to revisit birth control coverage under ACA

The 2010 Affordable Care Act (ACA), the United States’ controversial health care coverage act, requires group health plans and insurers to cover preventive care and screenings for women. Under the related regulations, this coverage includes government-approved contraceptive methods, but the group health plan of a religious employer may be exempt from providing such coverage or granted an accommodation to avoid paying for such coverage.  A for-profit employer with religious objections tested this contraceptive mandate in Burwell v. Hobby Lobby, and in 2014, the U.S. Supreme Court held that the mandate substantially burdened the exercise of the employer’s religion and … Continue Reading

“I forgot my Doctor’s Note” – Timeliness of Medical Excuses for Workplace Absences

When does an employee have to provide a Doctor’s note to excuse a workplace absence? After the absence, during or before? A recent labour arbitration case provides some guidance:

According to a provision in the collective agreement in this case, an employee could be fired if he or she was absent for more than three consecutive working days without a reasonable excuse. The employee in this case was absent for four consecutive days in June 2015 and was terminated soon thereafter for these absences. Although the arbitrator found that the employee had a legitimate medical excuse for his absences, … Continue Reading

What are the employment implications of the transfer of a business in the US?

When a buyer acquires the assets of another company, both the buyer and the seller must focus on federal and state laws in the United States which impact on employees who transition on the sale of the business.  For example, if a sufficient number of employees are affected, the federal Worker Adjustment and Retraining Act (“WARN”) may require the seller to provide 60 days’ notice to those individuals who might experience a job loss, to a union if they are represented, and to agencies of the state and locality in which they work.  Some states have comparable notice and compliance … Continue Reading

Ontario Ministry of Labour targets unpaid internships in its latest blitz

The Ontario Ministry of Labour (“MOL”) recently announced that it is undertaking an enforcement blitz focusing on unpaid internships. Between now and December 31, 2015, employment standards officers from the MOL will be visiting workplaces that have internship programs to ensure compliance with the Employment Standards Act, 2000 (“ESA” or “the Act”).

In particular, the officers will be assessing whether interns are, in fact, “employees” under the ESA. While internships can provide valuable experience to the intern and valuable work to the employer, if an intern is actually an “employee” under the ESA, then the employer … Continue Reading

Notice Entitlements under the Bankruptcy and Insolvency Act

When a company files for bankruptcy, employees are faced with uncertainty on a number of issues. Everything from outstanding wages to benefit entitlements are suddenly at risk. Further, when a company becomes insolvent, employees are often laid off in circumstances that fail to satisfy statutory or common law notice period entitlements. However, under the Bankruptcy and Insolvency Act (“BIA”), employees are often barred from fully recovering what they are owed.

Under the BIA, secured claims get paid first, followed by preferred claims, and finally unsecured claims will be paid once secured and preferred claims have been satisfied. Under this … Continue Reading

New executive order issued requiring federal contractors to offer employees paid sick leave

As he heads into the final year of his presidency, and in the face of continued Congressional impasse, President Obama continues to exercise his executive authority to issue directives targeting the federal contractor workforce.

A new executive order requires that federal contractors offer employees up to seven days of paid sick leave.  Eligible employees will earn one hour of paid leave for every thirty hours worked.  The order applies to new federal contracts solicited on or after January 1, 2017.

The order applies to a broad definition of “sick leave” to include leave relating to physical or mental illness, injury … Continue Reading

Paid sick days law in California is amended

The California Healthy Workplaces, Healthy Families Act of 2014 (“the Act”) went into effect on January 1, 2015, but its key accrual and use provisions became effective on July 1. On July 13, 2015, Governor Jerry Brown signed Assembly Bill 304, amending California’s Sick Leave law to make immediate changes. Those amendments state:

  • Employers may now use different accrual methods. The Act originally provided for an accrual rate of no less than one hour for every 30 hours worked, for those employers that did not grant sick leave at the beginning of each year. The amendments now allow an employer
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NLRB passes on football players’ employee status

On August 17, 2015, the National Labor Relations Board (NLRB) declined to assert jurisdiction to determine whether the Northwestern University (Northwestern) scholarship football players should be considered employees under the National Labor Relations Act (NLRA).

In April, we reported that the Regional Director of Region 13 of the NLRB found that scholarship football players from Northwestern University (Northwestern) were “employees” under Section 2(3) of the National Labor Relations Act (NLRA), and he ordered an election so that eligible football players could vote on collective bargaining representation by the College Athletes Players Association (CAPA). Northwestern appealed, and just this week, the Continue Reading

What same-sex marriage means for employers

In June the U.S. Supreme Court ruled in a 5-4 decision that the equal protection guarantee provided by the Fourteenth Amendment to opposite-sex marriages extends to same-sex marriages. The opinion in Obergefell v. Hodges, authored by Justice Anthony Kennedy, holds that “same-sex couples may exercise the fundamental right to marry in all States” and that there is “no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.”

While the Supreme Court’s opinion goes on at length about the dignity inherent in the ability to … Continue Reading

Now streaming: happy new parents – tech employers set a high bar with paid parental leave

Tech industry giants Netflix and Microsoft this week have announced new generous and flexible parental leave policies as an incentive to attract and retain skilled employees in a highly competitive industry. Earlier this week, Netflix introduced an “unlimited” leave policy for new parents to take as much time as they want – with pay — during the first year after a child’s birth or adoption to allow the new family time for bonding and adjustment to the new family lifestyle. The new parental leave policy applies to all full-time, salaried employees throughout its international organization of approximately 2,000 employees.

Microsoft … Continue Reading