McCarthy Tétrault launched its 14th blog today, Québec Employer Advisor, to help clients manage the challenges they face in today’s workplace. The blog provides employers and HR professionals with analysis of the latest legal issues that affect employment-related practices, labour and human resources policies in Québec. In addition to providing clients with insights on the implications of new case law, as well as updates on the latest legislative and regulatory developments, the blog will be regularly updated with practical tips, specifically relevant in the Québec marketplace. We encourage you to visit the blog and subscribe for regular updates.… Continue Reading
Employment agreement interpreted in light of statutory right to maternity leave
The recent decision of the B.C. Supreme Court in Sowden v. Manulife Canada Ltd. is noteworthy for its interpretation of a written agreement regarding bonus payments, and the court’s reluctance to allow an employer to use an employee’s maternity leave as a reason to reduce her bonus payment.
Janice Sowden was a regional marketing director for Manulife Canada Ltd. (“Manulife”). Her remuneration was made up of a base salary plus a variable bonus, calculated partly on her success in recruiting new financial advisors to work for Manulife. In essence, … Continue Reading
Are employers obligated to give employees time off to vote in the general local elections this Saturday, November 15?
The short answer is no. Unlike in provincial and federal elections, there is no statutory obligation under the Local Government Act on employers to provide employees with time off from work to vote in local government or municipal elections. The polls for these elections are open from 8am-8pm, and employees may vote in advance polls or even by mail ballot if they have conflicting commitments on the general voting day.
Although there is no legal obligation to provide time off, we … Continue Reading
While talks continue, there is no immediate end in sight for the ongoing teachers’ strike. For employees with school-age children, this may mean facing a child care gap starting next week. As an employer, what are your legal obligations and what can you do to make sure work continues while school’s out?
The Legal Framework
First, the Employment Standards Act provides all employees in the province with up to five (5) unpaid days of family responsibility leave each year for the care, health and education of a child in an employee’s care. Employers do not have the discretion to … Continue Reading
Canadian employers have been watching a series of class action claims, with employees claiming hundreds of millions of dollars in unpaid overtime, since 2007. While overtime class action claims are still not possible in British Columbia (for the reasons discussed here), claims can balloon in other provinces when a representative plaintiff claims unpaid overtime for themselves and on behalf of colleagues.
On August 12, 2014, the Ontario Superior Court of Justice approved the settlement of one of these overtime class actions, Fulawka v. The Bank of Nova Scotia. Our colleagues in Calgary have posted about this recent development … Continue Reading
With brand new labour and employment legislation, and a major case before the Supreme Court of Canada, Saskatchewan seems to be the current ‘centre of the action’ in Canadian labour law.
Constitutional Right to Strike?
On May 16, 2014, a very significant labour law appeal – Saskatchewan Federation of Labour v. Saskatchewan, from the Saskatchewan Court of Appeal – was argued before the Supreme Court of Canada. The Saskatchewan Federation of Labour and other unions argued that two pieces of provincial legislation violated employees’ right to freedom of association protected by the Canadian Charter of Rights and Freedoms.… Continue Reading
Many employers have policies about termination, and specifically about what an employee is entitled to if terminated without cause. It is a good idea to try to manage the cost of terminations, but it needs to be done properly to be effective.
Oliver v. Sure Grip Controls is a recent case where a termination policy was reviewed. The employer tried to limit its liability by reference to the policy set out in the employee handbook. The employer had gone to the trouble of having the handbook reviewed and signed by the employee, but the handbook included this underlined statement:
I … Continue Reading
Our colleagues in Ontario recently posted a very useful outline of an HR audit that will help BC employers ensure they stay up-to-date and on top of the wide variety of employment-related demands in their operations. As the saying goes, “an ounce of prevention is worth a pound of cure”.… Continue Reading
The Ontario government has introduced a bill to make significant changes to employment law in that province. Every BC employer with employees in Ontario should follow the course of these proposed changes.
As our colleagues in Ontario note, the Bill may not become law under the current government, but the proposals are wide-ranging and follow earlier Law Reform Commission recommendations. See their analysis here.… Continue Reading
Here are links to recent posts on other McCarthy Tétrault blogs which may be of interest to BC employers:
Our firm now publishes 10 different blogs, and they often have items of interest for BC employers. Here is a sampling of recent posts:
Customer Contacts on Linkedin = Property of the Employer – good news from the UK courts.
Five Employment Issues Facing Retailers – similar issues for retailers in BC.
Notices of Termination – can you terminate an employee before the effective date of their resignation?
Restrictive Covenants and Sale of a Business – how are they interpreted and when will they be enforced?
10 Things You Should Know About BC’s New Limitation Act – including reducing the … Continue Reading
A British Columbia employer has won a case to avoid double recovery of Employment Standards and wrongful dismissal damages. The decision in Roy v. Metasoft Systems Inc. is another piece of good news for employers to go with our recent post about the BC Human Rights Tribunal helping to discourage forum hopping.
Ms. Roy was a software sales associate. She complained to her employer about not getting all the commissions she thought she had earned. She threatened to file a complaint for unpaid wages with the Employment Standards Branch. The employment relationship went downhill from there and her employment was … Continue Reading
Telecommuting may be on the way out at Yahoo! but it is very much alive elsewhere. So if you have employees who are working from home, or if you are considering it, you should think through the employment issues.
The first question is: Do you have a written agreement to set out the telecommuting rules? If not, you need one.
The next question is: What does the telecommuting agreement need to address? Here is a list of some issues to consider:
- How do you monitor and manage hours of work? Unless you fit into one of the exemptions in the
The materials for all the presentations and workshops are available online here.
The materials cover:
What we can expect from an NDP government in Victoria
Privacy in workplace computers
Bill 14 – The new harassment, bullying and violence in the workplace provisions
Pension and Benefits law developments
A review of human rights, employment and labour cases from the past 12 months
Thinking about staying non-union
Written employment contracts and policies
Best practices in terminations
Employees terminated after the expiry of their collective agreement are not entitled to severance pay. That is the bottom line, and the end of the line, for the former employees of Mercury Graphics since November 8, 2012 when the Supreme Court of Canada refused to hear their appeal. The Saskatchewan Court of Appeal decision stands and provides some useful guidance for employers throughout Canada.
It is important to note that the result could be different under different collective agreement language. Some things to consider are highlighted below.
In the case of Mercury Graphics, the collective agreement term ended and the … Continue Reading
The bloggers of BC Employer Advisor issued our first Month in Review to summarize our most recent posts.
Visit the summary here.
We don’t think so and we are happy to engage Jeff Polsky in the discussion.
Jeff started this on the California Employment Law blog with a post, Like a Whole Different Country, suggesting that being an employer without at will employment was too scary to contemplate. Well, the fact is that employers in Canada are doing just fine, thank you very much, having traded the lottery of at will … Continue Reading
Fortunately for British Columbia employers, such class actions are still not possible in British Columbia.
CIBC won the first two rounds of the fight, and BNS was hoping to get the same break at the Ontario Court of Appeal. Instead, both class action claims have been certified, allowing the overtime claims on behalf of the banks’ employees to proceed. Subject to appeals to the Supreme Court of Canada, employees … Continue Reading
A recent Ontario Court of Appeal decision sounds a warning to employers – if you want to have a set amount of notice or compensation for termination without cause, AND you want to require the former employee to mitigate, you need to say so explicitly in the contract.
Goss Power Products had a written contract with its employee Bowes that stipulated that he would get six months notice or salary in lieu of notice if he was terminated without cause. On termination, Bowes was told he would get six months salary continuance if he looked for other employment. He was … Continue Reading
In most cases, the complainant must use the “Self Help” process to try to resolve the matter directly with the employer. That process starts with a Request for Payment to the employer. The Request should not be ignored. The process gives the employer a chance to resolve problems without involvement of the Employment Standards Branch.
If the matter is not resolved, a complaint may be filed, and an officer of the Branch will contact the employer to investigate. … Continue Reading
An earlier post looked at having to pay for on-call time under the Employment Standards Act (British Columbia). This post looks at travel time.
Travel time may be payable, depending on whether the travel is at the direction of the employer. Commuting from home to work and back again is generally not payable, even if using a company vehicle. But time spent going from home to work will be payable if the employee must bring employer-provided materials or equipment from home, move materials from one location to another, or pick up or deliver materials or equipment on the way to … Continue Reading
The Employment Standards Act (British Columbia) prohibits an employer from withholding or deducting any part of wages unless the employee has consented in writing. Problems frequently arise when employment terminates and the employer seeks to recover loans, advance payments (of wages or vacation pay) or other debts from the employee by way of deductions from the final pay.
Watch out for
- poorly documented loan agreements or advances;
- employees taking vacation before it is fully earned;
- adjustments to commission earnings where the amount drawn exceeds the amount earned; and
- accidental overpayments.
For any loan or advance, obtain a signed … Continue Reading
In addition to vacations and statutory holidays, there are two key times when an employee who is not performing any productive work may be entitled to be paid under the Employment Standards Act (British Columbia):
- while on-call other than at home; and during travel time.
On-call employees are “at work” and are entitled to be paid regular wages as well as overtime for those hours of work. The Act provides that an employee is “at work” while on call at a location designated by the employer, unless that location is the “employee’s residence”, a term which is narrowly construed and … Continue Reading
Under the Employment Standards Act (British Columbia), vacation pay must be paid at the minimum rate of 4% or 6% (depending on the employee’s length of service). If the employee is entitled by contract to more than the minimum standard of vacation, the vacation pay is also increased at a rate of 2% per week.
Vacation pay must be calculated on total earnings, which includes all salary, commission, bonuses and other incentive earnings. Employers often breach the Act by paying base salary only during vacation.
Employers may also trip up when they purport to include vacation pay in a commission … Continue Reading