Ontario Bar AssociationKey Employment Law Issues for the Immigration Lawyer

June 21, 2016 – TorontoStuart E. Rudner

What are we discussing?1. The Hiring Process

a)Avoiding human rights issuesb)Avoiding verbal agreements

2. Using Employment Contractsa)Making the offerb)Conditions

3. Employment Standards (compliance)a) Probationb) Vacationc) Hours of worke) Overtimef) Temporary layoffsg) Termination

The Hiring Process

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Human Rights Code Applies to every stage of hiring

– Posting / Advertising– Application Process– Offer

Human Rights Code“Every person who is an employee has a right to

freedom from harassment in the workplace by the employer or agent of the employer or by

another employee because of…”

You don’t want to know more than you need to

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Protected Grounds of Discrimination

Citizenship Ethnic Origin Record of Offences Disability Family Status Creed/Religion Marital status Gender identity Receipt of public

assistance

Age Ancestry, colour,

race Gender Sexual Orientation

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Protect yourself

You don’t want to know any more than you have to

Be careful about chit chat, innocuous questions– Nationality?– Where are you from?– Do you have kids?

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A speck of discrimination can lead to a human rights

claimPrice v. Top Line Roofing Allegation that complainant was dismissed due to his age. Employer put forward evidence to demonstrate legitimate

performance reasons “Straw that broke the camel’s back” was when employee

took unauthorized day off to observe a religious holiday and was promptly fired.

Since that was clearly a part of the reason for the dismissal, the employer was found to be in breach of the human rights legislation

Best Practices: Mitigating Risks

Have consistent protocol for every applicant

Have non-decision maker filter out inappropriate info

Log reasons for hiring and not hiring

Privacy Do not ask questions irrelevant to

work requirements Do not conduct background checks

that cannot be defended as bona fide occupational requirements

Consider request for permission to contact potential references

Contracts

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The Legal Cornerstones Employment Standards Legislation The Common Law Contract Policies

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Why Use Contracts? Increase rights & flexibility Control costs Increase Certainty - Reduce Need for

Lawyers (especially at termination) Customize to your needs Protect corporate interests Restrict post-employment conduct

Employment Agreements

Use them! Do it properly

– Before there’s already an agreement

– With consideration– Explained and understood– Independent legal advice– Conditional? Key Conditions

from the Immigration Perspective

Employment Agreements – Key Considerations for Immigration

Compliance Basic Checklist:

– Duties (maintain flexibility) – Remuneration and benefits (maintain flexibility)

Bonus, allowances, increases, promotions etc. – Restrictive Covenants– Vacation– Termination– Probation– No conflicting obligations– Immigration considerations…

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Termination clauses With cause – may have to pay

statutory amounts Without cause Resignation Temporary layoff Probation

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Termination Clauses Enforceable if done properly Avoid uncertainty of “reasonable

notice” & reduce dismissal costs Use clear language Don’t go below employment

standards Indefinite Offers of

Employment (PR)

Employment Standards

Vacation Time

Minimum of 2 weeks of vacation time annually. Some exceptions in section 3 ESA. Pro-rate vacation amount for alternative vacation

entitlement arrangements. Vacation time entitlement does not automatically

increase with length of service Must take vacation within 10 months of

entitlement. Can give up vacation time, but not vacation

pay– Need approval of Director

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Vacation Pay 4% of gross wages earned in the

year.– Wages include:

Regular Earnings Bonuses Overtime Pay Public Holiday Pay Termination Pay Room/Board Allowances

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Hours of WorkMost employees are allowed to work a maximum of: 8 hours a day 48 hours a week

Some categories of employees are exempt– ie managers, supervisors, some sales

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Hours of WorkAny agreements to exceed ESA maximum hours of work must be made in writing. Agreements to exceed weekly

maximum require approval of the Director of Employment Standards

30 minute meal break for 5 hours of work

Never let someone work more than 5 consecutive hours 23

Overtime A.K.A. “Time and a Half” Begins after 44 hours of work in a

work week Any hours beyond 44 paid at 1.5x

regular rate of pay Calculated on a weekly, not daily,

basis

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Overtime: Exemptions Managers and supervisors Student Employees IT Professionals Some professionals including Lawyers Commissioned travelling salespersons Hospitality industry First Response/Emergency Service

Providers Etc.

Overtime Employee can agree to receive paid

time off “in lieu” instead of overtime pay

Time in lieu = 1.5 hours of paid time for each hour of overtime worked

For variable work hours agreements, can agree to “averaging” hours to calculate overtime during specified period

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Stuart E. Rudnersrudner@rudnermacdonald.com

York Region: 905-530-2484Toronto: 416-640-6402

www.rudnermacdonald.com

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