In 2018 there were many new developments in the employment law world.
Here are my top 10 stories of the year:
1. Bill 148 bit the dust
Ontario’s Employment Standards Act received its last major update in 2000. During the last three years, the Liberal provincial government consulted widely and introduced comprehensive changes to this law by way of Bill 148. After this year’s spring election, the PC government reversed almost all of these changes. See here and here for blogs on the to and froing on changes to Ontario’s minimum employment standards law.
Bottom line: the time that employers, human resources consultants, and employment lawyers spent on this process was all for nought and a law that needed updating has not really changed.
2. The Ontario government is now selling recreational cannabis
In October 2018, Canada became the second country in the world to legalize the sale of cannabis. When edibles start being sold by the Ontario government in 2019, it will be difficult to detect cannabis use or impairment in the workplace. As a result, we recommend that all employers introduce or update its substance abuse policy. Here and here are links to blogs on this issue.
3. #MeToo is alive and well
In 2018, several senior executives in a number of industries were fired for sexual harassment. The public and employers are keenly aware of this issue. So are employees and as a result the number of complaints have increased. Employees in Ontario can file a complaint at work or file an application with the Human Rights Tribunal of Ontario. See here and here for some of our blogs on this issue.
We recommend that every employer introduce a no-discrimination policy.
4. The number of workplace harassment complaints has skyrocketed
In the fall of 2016, Ontario’s health & safety law was amended to require Ontario employers to investigate any incident or complaint of workplace harassment and the investigator must be trained on how to investigate. Since that time, we have seen a significant increase in the number of complaints. Here is a link to a blog on this issue.
In 2018, the number of external, professional workplace investigators mushroomed and most are currently working at full capacity. We recommend that every employer make sure that one employee is trained on how to conduct a workplace investigation. We are offering a one day training session on February 14, 2019. For more information, contact Judy Lam at 647-204-8107.
5. The uncertainty around the enforcement of termination clauses continues
This story has been in my top 10 list for 3 years. Many wrongful dismissal cases involve a dispute as to whether or not the termination clause in the employee’s employment contract is enforceable. Despite numerous court cases on this issue (including several cases from the Ontario Court of Appeal) it is still difficult to predict whether a judge will enforce a termination clause in an employment contract. See here, here, and here for some of our blogs on this issue.
I sincerely hope our Court of Appeal will provide some clear guidance in this area in 2019.
6. Limiting group benefits for seniors has been found to be unconstitutional
There are provisions in Ontario’s human rights and employment standards legislation which permit employers to discriminate against employees who are 65 years old when it comes to providing coverage for some group benefits. Here is a link to a case which stated that these laws are unconstitutional.
We therefore suggest that you talk to your benefit provider to find out whether senior citizen employees are excluded from any of your group benefits.
7. Wrongful dismissal damages are increasing for older workers
Since 1960, judges have been directed to take an employee’s age into account when determining the appropriate reasonable notice period. In 2006, mandatory retirement was eliminated in Ontario. Recently, a number of judges have suggested or implied that notice periods should be extended for employees over 60 years old and that these employees are not really expected to find alternative employment. Here is a blog on this issue.
8. Are executives entitled to variable compensation during the applicable notice period?
Variable compensation makes up the majority of many senior executives’ compensation. One issue that often arises when an executive is terminated is whether or not the employee is entitled to pay in lieu of this variable compensation during the applicable notice period. The employer says no because the employee has not done anything to achieve the results needed to trigger this compensation. However, Courts are not sympathetic to this kind of argument. See here, here, and here for cases where the employer’s argument was rejected by a judge.
The good news is that it is possible to draft contractual language that precludes an executive from receiving any variable compensation after his or her last day of active employment.
9. Secretly recording conversations at the workplace
Michael Cohen secretly taped Donald Trump and more and more employees are taping conversations in the workplace. In this age of social media and the use of a cell phone as a person’s appendage, I think this trend will continue. Depending on your perspective, doing so undermines the trust needed between employees and employers or is evidence that such trust does not exist. Managing this possible scenario is tricky. Here is a blog on this topic.
10. The number of Employment
Standards Act audits is increasing
In 2017, the Ontario Liberal government announced it was hiring 175 Employment Standards officers who would randomly visit 1 in 10 Ontario workplaces each year to make sure the employer is complying with the Employment Standards Act. As a result of the PC government’s hiring freeze not all of these people have been hired, however, these audits have begun on a more limited scale.