EMPLOYMENT LAW BREAKFAST Holiday Inn, Kitchener Wednesday, January 26, 2005

1
EMPLOYMENT LAW BREAKFASTHoliday Inn, Kitchener-
Wednesday, January 26, 2005 -
Presented in cooperation with the Canadian
Corporate Counsel Association
2
William R. MacGregorPhone [phone] Fax
[phone]bill.macgregor_at_gowlings.com

• MANDATORY RETIREMENT
• AND
• CORPORATE IMMIGRATION
• UPDATE

3
Overview

• Mandatory retirement update
• Context
• Where are we in Ontario?
• Some implications for employers
• Corporate Immigration Update
• Two minute drill on recent developments

4
Age and the Human Rights Code

• Currently restricted definition of age in the
  employment context (18 to 64)
• Permits discrimination on the basis of age in the
  employment context
• Allows mandatory retirement policies which
  require retirement at age 65
• If policy in place, relieves employer of
  obligation to provide reasonable notice
• Bona fide occupational requirement may justify
  termination on basis of age prior to 65

5
The Common Law Approach

• No requirement at common law to impose mandatory
  retirement on employees
• Right to terminate not justified because of age
  (in absence of a policy)
• Need to provide employees with appropriate notice
  if terminate other than for just cause
• Age is a factor in determining reasonable notice
• Bona fide occupational requirement may justify
  termination on the basis of age

6
Current Status in Ontario

• End of mandatory retirement is inevitable
• Liberals supported prior Tory legislation and
  have said they will end it
• Consultation process ended in September 2004
• "Mandatory Retirement Project" hotline
• 1-866-400-8355
• Issue is in the details
• No new legislation yet being developed

7
Implications for EmployersEffects on the
Workplace

• Hiring
• Performance evaluations
• Duty to accommodate
• Benefit and pension plans
• Dismissal

8
Duty to Accommodate

• Will increase accommodation issues
• Disability (physical and mental)
• Caring for aging spouse ("family status"
  discrimination?)
• Physical aspects associated with aging (decline
  in capacity or stamina) is this a disability?

9
Duty to Accommodate

• Accommodate up to point of undue hardship
• Flex hours
• Part-time arrangements
• Short-term contracts
• Retrain/upgrade skills

10
Dismissal

• Provide advance working notice to minimize notice
  obligations
• Provide reasonable notice could be costly and
  risky
• Termination for cause may invite claims of age
  discrimination
• The Challenge Design a management system to
  track job
• performance
• An Alternative Retirement Incentive Programs

11
Corporate Immigration Update

• Several developments in Canada and the U.S.
• Changes to Canadian regulations and policies
• Provincial nominee programs expanding elsewhere
  but Ontario does not have one
• Increased use of technology and info exchange
• US-VISIT program (tracking)
• Fast Track Programs NEXUS Air update
• More restrictive U.S. laws?

12
ESA Emergency Leave Update

• If greater than 50 employees in Ontario, must
  provide up to 10 emergency days "each year per
  S.50(5)
• Ministry policy was "year" "calendar year"
• OLRB in December 2004 disagreed "year" 365 day
  period 10 days based on anniversary dates
• Bill 63 amends S.50(5) to read "each calendar
  year"
• Therefore, Ministry policy will prevail March 1

13
Legislative Changes The Big Picture

• Trend towards increased protection of workers
• Some "rebalancing" of Tory changes by Liberal
  government
• E.g. Bill 63 ESA changes Family Medical Leave
  Bill 144 OLRA changes
• Latest example OHSA ticketing
• Follows July's ESA ticketing announcement
• Proactive inspections
• 200 inspectors to be hired
• Pay fine or attend provincial court to defend
  ticket

14
P.A. Neena GuptaPhone [phone] Fax
[phone]neena.gupta_at_gowlings.com

• Employment Standards Act, 2000
• Hours of work
• Overtime Averaging

15
The Basics Have not Changed

• Discussion does not apply to exempted employees
• Exemptions includes
• Managerial and supervisory staff
• Most professional groups
• Construction workers (but have right to lunch)
• IT professionals
• Review Reg. 285/01 for other exemptions

16
The Basics Have Not Changed

• 8 hours a day, unless employer establishes a
  regular work day of more than 8 hours for the
  employee
• 48 hours maximum in a work week
• 11 consecutive hours per day free from work

17
The Basics Have Not Changed

• 8 hours between shifts (unless total of shifts
  less than 13 hours) or with agreement
• ½ hour unpaid meal break every five hours (or
  split in 2 breaks) with agreement
• Any agreements with employees must be in writing

18
The Basics Have Not Changed

• The rules regarding hours dont apply in the case
  of true emergencies
• Such as urgent repair work
• Need to provide uninterrupted public services
• Need to keep continuous or seasonal operations
  going

19
Changes effective March 1, 2005

• Employers need fresh approval from Director of
  Employment Standards in order to have employees
  work greater than 48 hours
• All previous approvals are terminated effective
  February 28, 2005 even if initially given for
  longer period of time
• Employers should apply to the Director of
  Employment Standards no later than January 28,
  2005 at 500 pm to get ready for March 1, 2005
  (30 day rule)

20
Updating Your Employee Agreements

• Written agreements with employees need to be
  validated by June 1, 2005 -- provide the employee
  a copy of Information Sheet regarding employees
  rights
• Maintain proof in writing
• New agreements with employees must acknowledge
  receipt of most recent bulletin published by
  Director of Employment Standards Branch
• Information Sheet not required for unionized
  employees

21
Updating Agreements to Work Excess Hours

• Information sheet available on the internet at
• www.gov.on.ca/LAB/english/es/factsheets/fs_hours.h
  tml
• Poster available on the internet at
• www.gov.on.ca/lab/english/es/pdf/poster.pdf

22
Employee Agreement

• Employee can revoke agreement two weeks after
  giving written notice to the employer
• Employer can revoke agreement on reasonable
  notice

23
Application Process Can be Tricky

• Must have written agreements with each employee
  working over 48 hours or collective bargaining
  agreement
• The Application Form must be filled out and
  served on the Director of Employment Standards
• The Application Form must be posted (and kept
  posted) in the workplace

24
Deemed Approval

• Deemed approval applies after 30 days from date
  Application served on Director of Employment
  Standards Branch
• To avoid being forced to reduce hours, apply on
  or before January 28, 2005 at 500 pm.
• If you dont have approval or deemed approval in
  time, must not schedule employees beyond 48
  hours/week

25
Deemed Approval

• No notice of actual rejection of application
• Excess hours capped at 60 hours a week, until
  actual approval received
• Previous application not refused or revoked

26
Approvals/Revocations

• Director can consider
• Any current or past contraventions of the Act
• Health safety of employees
• Any prescribed factors
• Approvals are time-limited
• Maximum 1 year if in excess of 60 hours a week
• Maximum 3 years if between 48 and less than 60
  hours a week

27
P.A. Neena GuptaPhone [phone] Fax
[phone]neena.gupta_at_gowlings.com

• OVERTIME

28
Overtime The Basics

• Exclusions (Reg. 285/01) include
• Managerial supervisory employees
• IT professionals
• Ambulance drivers
• Building superintendents and caretakers who
  reside in building
• Most professionals
• Student camp instructors

29
Overtime The Basics

• Overtime paid at 1.5 times regular rate after
• 44 hours for most employees
• 50 hours for employees building bridges, tunnels
  and retaining walls, sewers watermains, local
  cartage, seasonal hospitality workers, seasonal
  fruit vegetable processing
• 55 hours for employees building streets, highways
  or parking lots

30
Overtime Averaging

• Normally overtime based on weekly hours
• Can average overtime over period of 2 or more
  weeks
• Previously, approval needed only if averaging
  over period of 4 or more weeks
• Many employees are currently averaging based on
  agreements with employees

31
Overtime Averaging

• Effective March 1, 2005, all averaging agreements
  must be approved by Director
• Averaging can be for any period, but deemed
  approval only for period of two contiguous weeks
• Actual approval required if averaging period
  greater than 2 weeks
• Agreements can last 2 years or less
• Agreements can be renewed

32
Overtime Averaging

• Consent to overtime averaging cannot be revoked
  unless both parties agree
• Employer can rely on deemed consent of Director
• Need to apply on or before January 28, 2005 in
  order to avoid interruptions to current averaging
  arrangements

33
Overtime Averaging

• Excellent information available on the internet
• www.gov.on.ca/LAB/english/es/hours/guide_toc.html

34
Old ESA, 2000
Old v. New

• New ESA, 2000
• Ministry approval required if workers work
  greater than 48 hours a week.
• Ministry approval required on all overtime
  averaging
• Apply before January 28, 2005 at 500pm for
  seamless transition

• Employer and employee could agree to work up to
  60 hours a week without Ministry approval
• Employer and employee could agree to average
  overtime over 4 weeks without Ministry approval

35
Edward MajewskiPhone [phone] Fax (519)
571-5002ed.majewski_at_gowlings.com

• FAMILY
• MEDICAL
• LEAVE

36
What is Family Medical Leave?

• Unpaid, job-protected leave of up to 8 weeks in
  26-week period to care for certain gravely ill
  relatives
• Employee may be eligible for EI Compassionate
  Care Benefits

37
Which Employees May TakeFamily Medical Leave?

• All employees covered by the Act

38
For Which Family Membersis Medical Leave
Available?

• Spouses
• Parents, step-parents or foster parents
• Children, step-children or foster children of the
  employee or the employee's spouse and
• Individuals specifically named in the Regulations

39
Qualifying for Family Medical Leave

• Employee must obtain certificate from qualified
  medical practitioner stating that family member
  has a serious medical condition that carries a
  significant risk of death within 26 weeks
• Employee may begin medical leave before
  certificate is issued, as long as employee
  ultimately obtains certificate
• Employer is entitled to ask for a copy of
  certificate

40
Notice to Employer

• In advance, or as soon as possible after starting
  FML
• In writing

41
Length of Family Medical Leave

• Up to 8 weeks in a 26-week period
• but can take up to an additional 8 weeks if the
  family member survives the 26-week period and the
  employee obtains another certificate
• Must be taken in weekly segments (unlike
  Emergency Leave which can be taken in single
  days), but weeks do not need to be taken
  consecutively

42
Length of Family Medical Leave

• 8 weeks of FML must be shared by employees
  related to the ill family member
• Earliest that FML can begin is the first day of
  week in which 26-week period begins
• Employee may not remain on FML after the earlier
  of
• the last day of the week in which the family
  member dies or,
• the last day of the week in which the 26-week
  period ends

43
Length of Family Medical Leave

• FML is in addition to Emergency Leave which may
  also be used to care for ill relatives, but which
  is only available to some employees

44
Employee's Rights While OnFamily Medical Leave

• Same rights and protections that are enjoyed by
  employees on other types of statutory leave
  (Pregnancy/Paternal or Emergency Leave),
  including
• Right to reinstatement
• Right to continued accrual of vacation time,
  length of service and seniority
• Employer must continue to make contributions to
  benefit plans

45
Income Replacement

• Although FML is unpaid, eligible employees may
  receive up to 6 weeks of Compassionate Care Leave
  Benefits (after a two-week waiting period) under
  Employment Insurance

46
R. Ross WellsPhone [phone] Fax (519)
571-5013ross.wells_at_gowlings.com

• LABOUR RELATIONS ACT
• CHANGES
• - AND -
• ONTARIO HEALTH PREMIUMS

47
Union Certification Application

• Union proposes bargaining unit
• Submits evidence of union membership (signed
  cards)

48
The Vote

• Union support by 40 or more results in board
  supervised vote
• Vote held within 5 business days of application

49
Proposed New (Old) Rules (Bill 144)

• Apply to construction industry only
• If union support is greater than 55, certified
  without a vote
• Between 40 and 55, a vote is held
• Less than 40 dismiss application

50
Remedial Certification

• Prior to 1998 the OLRB had power to certify a
  union without regard to the outcome of a vote if
  an unfair labour practice was committed by
  employer
• Pre-1998 test if the true wishes of the
  employees may not be determined by a vote

51
1998 Changes

• Harris government eliminated that OLRB power
• OLRB left with power only to order another
  representation vote

52
Bill 144

• Proposes to reinstate OLRB power to certify
  regardless of outcome of vote
• Where "no other remedy would be sufficient to
  counter the effects of the contravention"
• OLRB also given power to dismiss application in
  response to union contravention of Act

53
Additional ORLA Changes

• Bill 144 restores the power to the OLRB to grant
  interim relief, i.e., temporary reinstatement of
  employees.
• Decertification poster eliminated
• Unions no longer report to Ministry of Labour
  members of the "100,000 Club"

54
Ontario Health Premium

• Many collective agreements contain old language
  requiring employer to pay OHIP premiums
  (eliminated in 1990)
• McGuinty government introduced the new Ontario
  Health Premium (Bill 106) in 2004
• Is the Ontario Health Premium a tax or an OHIP
  premium?

55
What Arbitrators Say

• First decision found they were "premiums" and
  ordered the employer to pay
• Later decisions found it was a "tax" which the
  employer did not agree to pay
• Will depend on wording of agreement
• Decisions appear to be favouring employer

56
THANK YOU
57

Presented in cooperation with the Canadian
Corporate Counsel Association

• For more information about CCCA,
• please contact
• 20 Toronto St. Suite 300
• Toronto, Ontario
• M5C 2B8
• Canada
• Tel [phone]
• Fax [phone]
• Email ccca_at_ccca-cba.org

58
For Further Information

• William R. MacGregor
• Phone [phone] Fax [phone]
• bill.macgregor_at_gowlings.com
• P.A. Neena Gupta
• Phone [phone] Fax [phone]
• neena.gupta_at_gowlings.com
• Edward Majewski
• Phone [phone] Fax [phone]
• ed.majewski_at_gowlings.com
• R. Ross Wells
• Phone [phone] Fax [phone]
• ross.wells_at_gowlings.com