At Samfiru Tumarkin LLP we receive countless questions every day regarding the rules and regulations governing various businesses across Ontario, and the rights of both employers and employees when a workplace issue presents itself.
Certain questions and conflicts regarding HR and employment law have been flagged far more often than others. Some of these disputes are sparked by employers who willfully ignore the law, while other issues, such as not providing fair severance to an employee terminated without cause, are the result of an employer’s lack of knowledge when it comes to labour and employment law.
Therefore, we put together a helpful list of the 7 biggest employment law issues in 2018.
1. Workplace harassment
This topic has become front and centre over the past several months following the rise of the #metoo movement. Not only can workplace harassment be a very difficult situation for an employer to handle, it can also be a costly one. An employer has a strict legal duty to investigate any harassment complaints and take appropriate action to handle the situation. Some ways employers can deal with these types of complaints are; discipline problem employees, provide sensitivity training, and even relocate workers. As an employer, you MUST take a complaint seriously and respond to it immediately.
If an employer fails to properly investigate a complaint, an employee could view the inaction as a form of constructive dismissal – resignation with severance pay.
2. Employment contracts
A surprising number of employers continue to ignore the importance of written employment contracts. This vital document can reduce an employer’s HR and employment liability, and diminish the cost of disputes with employees where severance pay is concerned.
For an employment contract to be enforceable, it must be signed BEFORE the employee starts working. If it is signed after employment begins, the contract will not be enforceable. There is, however, an exception to this rule: an employment contract signed after work has commenced is enforceable but only if the employer offers an employee something in return, such as a signing bonus, extra vacation, promotion or pay raise.
An enforceable employment contract will clearly outline employee compensation, job duties and performance expectations, protection of intellectual property, and setting out (and limiting) the severance pay owed to a terminated employee.
An inadequate employment contract means your employees’ termination entitlements will be governed by the common law, and their entitlements will be significant – far more than an employee’s minimum entitlements under the Ontario Employment Standards Act.
3. Employees’ medical limitations
Somebody on your staff may come to you asking for a shift change due to a health concern identified by their doctor, or a medical issue concerning a family member. While you may not want to say yes, the law dictates that you must comply with their request.
Making changes to an employee’s duties, hours or work location is not an easy task, which is why employers often turn down a request for accommodation. Yet keep in mind, an employer who refuses to accommodate is committing a human rights violation, that could lead to a case for constructive dismissal, meaning compensation for the employee.
4. Pregnant employees
Regrettably, this is one of the biggest mistakes businesses continue to make. In this day and age, employers cannot target a female employee simply because she is pregnant.
Even if an employer has a legitimate reason to terminate a pregnant employee, it will be assumed that you are letting them go solely because they are pregnant.
We have encountered many employers who, upon learning that a stellar employee is pregnant, have quickly built an absurd case against the worker right before maternity leave kicks in. In the blink of an eye, a valued employee is accused of becoming a rotten one.
DO NOT TAKE THAT APPROACH. Such action is a violation of the human rights code.
If you really do have a legitimate reason to dismiss a pregnant employee, make sure you have all of the necessary documentation becuase you must be prepared to prove that your accusations are based in fact.
Our best advice on this matter: DO NOT MESS WITH A PREGNANT EMPLOYEE!
5. Inadequate severance
The days of being able to offer a terminated employee minimal severance are behind us. In the past it was easier to let an employee go with minimal severance. Nowadays, people are now more informed than ever before, and therefore more aware of their rights.
Offering pennies on the dollar could open you up to a claim for wrongful dismissal.
Some employers simply don’t know what components are factored into severance pay. If you’re not sure how much termination pay an employee is entitled to after years of service, let the Severance Pay Calculator be your guide.
6. Overtime pay
If an employee works overtime, you MUST properly compensate them. This is true even if your workplace requires company approval before extra hours are worked. An employee who works overtime without proper approval can legally be disciplined by their employer, but that lack of approval does not excuse a business from having to pay for the overtime hours that were worked.
Did you know that salaried employees (excluding managers) are entitled to overtime pay? A great number of businesses either willfully ignore this fact or are unaware that it even exists.
7. Disciplinary policies
In order to terminate an employee for cause, you need to build a strong case against them. This can be done by demonstrating that you attempted to deal with the employee’s conduct through the options dictated by your company’s policy. Perhaps you issued a verbal warning, followed by a written warning and then finally a suspension.
If you choose not to abide by your disciplinary policy when dealing with an employee’s inappropriate workplace conduct, there is a good chance that you will not be able to successfully fire that individual for cause, meaning severance will have to be awarded.
Discover your Rights with Samfiru Tumarkin LLP
Are you facing one or more of the situations noted on this blog? Do you need assistance to properly navigate Ontario’s employment laws without infringing upon an employee’s rights? Contact an experienced employment lawyer at Samfiru Tumarkin LLP immediately to avoid becoming unnecessarily bogged down in a legal quagmire.
Alex Lucifero leads Samfiru Tumarkin LLP’s Ottawa office as its Managing Associate, providing sound advice to both employers and employees on all aspects of labour and employment law, including wrongful dismissal, severance packages, terminations and constructive dismissal.
Discover your rights at ottawaemploymentlawyers.ca or call 613-366-3063.
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