Get Ready for Summer with this Vacation Time and Pay Breakdown

As the summer looms ever nearer and all of Canada’s National Parks are on offer for free to mark our country’s 150th anniversary, you are probably hoping to cash in some of those vacation days to maximize your time away from the over- or under-air-conditioned office.

When it comes to vacations, Canadians can’t get enough. And we don’t. In fact, we rank pretty low in the developed world for paid vacation days. We’ll save you the trauma of knowing how much paid downtime those Scandinavians get and instead give you an overview of your entitlements under Ontario Labour Law to make sure you can take advantage of them in full during the warm weather months ahead.

Vacation Time

Ontario employees are entitled to two weeks’ vacation time after each 12-month vacation entitlement year. Your vacation entitlement year normally begins the day you are hired. This means that after 12 consecutive months of employment with the same company you are entitled to two weeks of vacation. The vacation entitlement year is not affected by approved leaves of absence or sick days. This means, for example, that if your entitlement year began in May, 2016 and you took three months parental leave from July to September, you are still entitled to take two weeks off as of May, 2017.

Vacation Time Ontario - Calculating Vacation Pay

Unfortunately, the Employment Standards Act doesn’t provide for increases to the vacation time entitlement based on length of employment. This means that, in Ontario, even after working for the same employer for five, ten, or even 25 years, you are still only entitled to two weeks vacation time. However, many contracts and collective agreements do provide for increases to vacation time as the length of your employment increases.

Calculating Vacation Time

The number of vacation days to which you are entitled depends on whether your employment is full- or part-time. Generally speaking, you are entitled to take off the number of days you work in a regular work week, times two.

Therefore, if you work five days a week you get ten vacation days (two work weeks). If you work three days per week you get six vacation days. If you have an irregular schedule with varying numbers of days worked in a week throughout the year, you can calculate your vacation days by taking the number of days you worked in the last entitlement year period and dividing it by 52 (the number of weeks in the year) to get the average number of days you worked per week and then multiplying that number by two. For example, if you worked 136 days last year you would be entitled to 5.2 vacation days (136 days ÷ 52 weeks x 2 = 5.2 days).

Scheduling Vacation Time

Vacation time must be taken within ten months of the completion of the entitlement year. Employers have the right to schedule vacation and are obligated to ensure it is taken before the end of the ten-month period following the completion of an employee’s entitlement year period.

If an employee is on leave at the time of this deadline, the vacation time must be taken when the leave ends or at a later date agreed upon in writing by the employer and employee.

Additionally, vacation time must be scheduled in one or two week blocks unless the employer and employee give written agreement to an alternate arrangement. This means that extending long weekends with an extra vacation day here and there is at the discretion of employers and not guaranteed for employees wishing to make a four-day cottage trip out of the upcoming Victoria Day Weekend.

How to Caculate Vacation Pay Ontario - KCY at LAW

How To Calculate Vacation Pay

Vacation pay also begins accruing the day you are hired. It must be at least 4% of your gross wages for your entitlement year. Whereas with vacation time, you must complete your full vacation entitlement year to receive any vacation time, you earn vacation pay while you earn wages. So, if you work 3 months, you will be entitled to a minimum of 4% of those months’ wages as vacation pay. Accordingly, if you earned $30,000 in gross wages in your vacation entitlement year, you are entitled to $1,200 ($30,000 x 0.04) as vacation pay.

Gross wages include your: normal earnings, commissions, non-discretionary bonuses, overtime, public holiday pay and termination pay. On the other hand, earnings from tips, gratuities, discretionary bonuses (Christmas or others unrelated to performance), travel expenses and allowances, benefit plan contributions, federal EI benefits, and severance pay are not included in your gross wages when calculating vacation pay.

Vacation pay is generally paid in a lump sum before an employee takes their earned vacation time. If you quit or are dismissed, you are entitled to be paid the vacation pay that you have earned but not yet been paid out.

Vacation Time or Pay Compensation

If you have been denied vacation time or pay, KCY at LAW are experienced employment law lawyers who can help get you compensation for those lost beach hours. Fill out our contact form or call us to book your consultation (905) 639-0999.

Unlawful vs. Wrongful Dismissal: What’s the Difference?

So, you’ve been let go. Or you’ve been terminated, fired, downsized or dismissed. Pick your euphemism, the unhappy fact remains that one chapter in your employment history has ended. It’s unfortunate that you are back on the job hunt but you are smart and capable and will handle this challenge with grace and skill.

Reasonable Notice Period Guidelines for Dismissal

Ideally, your employer has taken care to follow the reasonable notice period guidelines set out in the Employment Standards Act (ESA) to give you the time and/or resources needed to get back on your feet and facilitate your smooth workforce transition. Ideally, you and your employer remain on friendly terms and your resume has a glowing new reference.

But what if your termination was less than amicable? What if the reasons for your dismissal were petty, or worse, discriminatory? What if your severance package or termination pay was less than adequate? Does this mean you have been wrongfully – or unlawfully – dismissed? What’s the difference between the two anyways, and what recourse do you have?

What Is Wrongful Dismissal - Employment Lawyer - KCY at LAW

Wrongful Dismissal

Simply put, a wrongful dismissal occurs when an employee is terminated without cause and without adequate notice or compensation. Being wrongfully dismissed has nothing to do with an employer’s reason (or lack thereof) for firing an employee. It unfortunately means that you can be fired for petty and unfair reasons, so long as you are given appropriate notice or termination pay.

So yes, it is lawful to be fired because your boss doesn’t like your shoes.

Generally speaking, employees can be dismissed without cause if they are provided with adequate notice of their termination or with compensation in lieu of said notice. The length of notice to which you are entitled is determined by your employment contract and minimum standards guaranteed by the ESA.

If you have been dismissed without adequate notice or compensation, you may be able to sue for damages. You should know, however, that damages are meant to compensate you according to ESA standards. They are not meant to punish an employer for firing you.

What is unlawful termination - Employment Lawyer - KCY at LAW

Unlawful Termination

By contrast, a termination is unlawful if it is discriminatory under the Human Rights Code (HRC) or if it arises from you insisting on your rights under the ESA or Occupational Health and Safety Act. Legal actions may be pursued in the case of illegal terminations including being reinstated in your former position.

So while you can be dismissed because an employer doesn’t like your taste in footwear, you cannot be fired because you require certain orthopedic shoes to address a physical ailment.

Wrongful Or Illegal Termination Experts

If you think you have been wrongfully or illegally terminated, our dedicated team is here to champion your employment rights. Contact KCY at LAW to book your consultation with a skilled employment lawyer who will defend your rights under the ESA and HRC. Call us at (905) 639-0999 or reach out to us online here.

Social Media and Hiring Practices

We’ve talked in previous blogs about how what you say and post online can have negative impacts on your employment. You now know that an unprofessional online presence can get you fired, but did you know it can also prevent you from getting hired in the first place?

Impact of Social Media on the Hiring Process

Today, job applicants can expect to be vetted based on their online profiles at all stages of the hiring process. Various studies have shown that around three quarters of hiring managers and recruiters will research candidate’s online presence to help them determine who to hire.

After all, your online presence offers recruiters a sneak peek at who you are beyond the bulleted columns of your resume. For employers, networking sites like LinkedIn and Facebook may offer insights about a candidate’s character and personality as well as the accuracy of their qualifications.

What are Recruiters Looking for?

Social Media and Staff Recruitment - Employment Lawyer BurlingtonLinkedIn is usually the first site employers will turn to in order to gain a more complete picture of candidates. LinkedIn allows them to easily verify your references and qualifications. Inconsistencies between what you say on your resume and your online profiles is an immediate red flag.

Importantly, employers are looking to see if there is anything in your online behavior that would make them want to reconsider your hire. They are looking to see if you present professionally. Have you bad-mouthed a previous employer, for example? Do your interests and activities suggest that you are well rounded and will fit into the existing work culture? How is your spelling and grammar?

According to Forbes, about a third of employers who browse candidate’s social media say they have found materials that have disqualified the candidate. The most common culprits are:

  • inappropriate photos and information;
  • evidence of alcohol and drug use;
  • discriminatory posts or comments; and
  • false qualifications.

Don’t Hide Away

As a job applicant you have the option to adjust your privacy setting on various social media so that recruiters can’t see your activities. But in doing so you will be missing the opportunity to use your internet persona to your advantage. Your profiles and posts offer a unique opportunity to highlight your accomplishments and show yourself in a positive light.

So perhaps you will want to keep your Facebook posts joking about last Friday’s debauchery private but those Instagram shots of you playing soccer or those clever tweets about your MP’s latest policy pivot can only work to your advantage.

What About my Privacy Rights Online?

Generally speaking, recruiters are within their right to view public profiles. Applicants do not have a reasonable expectation of privacy for information that is publicly available. If you are not sure how private your accounts are, most sites offer you the option to ‘view page as’ and see what your profile looks like to people outside of your network and adjust your privacy settings accordingly.

Privacy Rights Online - Recruiters Using Social Media - KCY at LAW

Recruiters should be warned, however, that not everything they see online can be used in the hiring decision-making process. Learning about things that should not factor into hiring decisions but might do so, even subconsciously, can pose a legal risk for hiring managers. Human rights law ensures that things like a candidate’s race, gender or disability, for example, cannot factor into hiring decisions.

Searching an applicant’s online presence should be approached in much the same way as workplace privacy is (see our blog post here on guidelines on workplace privacy and PIPEDA & Privacy Laws). Managing discrimination and privacy risks should be of the utmost concern. Recruiters should have a specific, relevant reason for looking at an applicant’s online profiles as part of the hiring process. They should have clear policies with regards to this gathering of information, and applicants should be made aware of what employers will be examining and why.

Legal Workplace Hiring Practices

KCY at LAW’s extensive employment law experience can help you create fair and legal workplace hiring practices. To book you consultation, please call us at (905) 639-0999 or reach us online.

Flexibility for Families? Budget 2017’s Parental & Pregnancy Leave Proposals

Budget 2017 is out and has everyone buzzing, including us at KCY at LAW. While we have previously talked about the basics of pregnancy and parental leave, new proposals in the Liberal Party’s 2017 Federal Budget may soon make some of that information out-of-date.

What Budget 2017 Proposes For Parental & Pregnancy Leave

Flexibility for Families - Pregnancy and Parental Leave Proposals Budget 2017The new budget makes two basic proposals concerning parental and pregnancy leave:

  1. It allows parents to receive EI parental benefits for up to 18 months.
  2. It allows women to claim EI maternity benefits up to 12 weeks before their expected due date.

The Budget promises to give families more flexibility when they are welcoming new members into their nest. More time off for parents certainly seems like a step in the right direction for families facing the stress and excitement of managing their young brood.

New Pregnancy & Parental Leave Benefits With A Catch

But these new benefits have a catch. While parents can choose to take up to 18 months off following the arrival of their child, they can only do so at a benefit rate of 33% of their average weekly earnings to a maximum of $362 per week. Stretching the time parents can take off also means stretching their funds to do so. Fortunately, parents still have the option to take only 12 months off at the present EI benefit rate of 55% to a maximum of $543 per week.

So, while the new budget might allow some families to spend more time with their new arrival and save on costly infant care, they will have to tighten their budgets in order to do so.

New Pregnancy and Parental Leave Proposals - Budget 2017 - KCY at LAW

The government plans to achieve these objectives through amendments to the Employment Insurance Act and the Canada Labour Code. This means it could take until next year for these extended benefits to be available to Canadian families.

Experienced Maternity & Parental Leave Lawyers

If you have questions about how new maternity and parental leave may impact you, your family or your business, KCY at LAW is an experienced employment law team and is here to help. Call us at (905) 639-0999 or reach us online.

Bill 26: A Paid Leave for Safety

According to the Canadian Women’s Foundation, 67% of Canadians indicate that they have personally known at least one woman who was the victim of physical or sexual abuse. Nightly, nearly 3,500 women and over 2,700 children use shelters because home isn’t safe. These are just some of the striking statistics about domestic violence in Canada.

Bill 26: A Paid Leave for Safety To Support Victims of Domestic Violence

Dealing with the emotional, physical and criminal fallout of domestic violence can be a timely process. It takes time to seek psychological and medical help, talk to law enforcement, make sure your children are safe, deal with the courts, not to mention heal yourself. Bill 26 seeks to provide victims of domestic violence the critical support of time.

Bill 26 was first introduced in the spring of 2016 as a private member’s bill from NDP MPP Peggy Sattler and has since garnered support from Ontario Labour Minister Kevin Flynn and over 50 labour unions. The bill passed its first and second readings last fall with unanimous support.

Domestic Violence and the Workplace

Can Work Be Safe, When Home Isn’t?, the first pan-Canadian survey on domestic violence and the workplace found that, of those respondents who had experienced domestic violence:

  • 5% had lost a job due to it;
  • over a third reported that the violence affected their ability to get to work;
  • over half reported that the abuse continued at the workplace (i.e. harassing phone calls, stalking); and
  • the vast majority reported that domestic violence negatively affected their work performance.

Bill 26 - Domestic Violence - Employer Responsibilities - KCY at LAW
Disrupted work histories often result in reduced personal incomes for those who experience domestic violence. But the impacts of domestic violence are further reaching still. The Department of Justice estimated that domestic violence cost Canadian employers $78 million annually. However, this number pales in comparison to the department’s more inclusive estimate of $7.4 billion which considered the societal costs (policing, judicial, social services etc.) of dealing with the aftermath of spousal abuse.

Employment is an essential resource for individuals trying to leave an abusive relationship. Can Work Be Safe confirmed the importance of secure employment with 75% of respondents indicating a paid leave could reduce the harm of domestic violence. A secure job provides the financial stability necessary for victims to escape domestic violence and maintain a reasonable standard of living for themselves and their children.

Victims of domestic violence shouldn’t have to choose between their job and personal safety. Bill 26 seeks to facilitate the continued employment so many victims desperately want and need in order to escape the isolation and chaos of a violent home.

What Bill 26 Proposes

If passed, Bill 26 would amend the Employment Standards Act (ESA) and the Occupational Health and Safety Act to provide accommodations for employees if they or their child experiences domestic violence or sexual violence. Proposed accommodations include offering the employee an alternate work location, alternate or fewer work hours, or a paid leave of absence.

What Is Bill 26 - Domestic Violence - Employment Lawyer - KCY at LAWBill 26 proposes that employees who are experiencing domestic or sexual violence should be able to take a ten-day paid leave of absence so that they may:

  1. Seek medical attention;
  2. Receive psychological counselling;
  3. Access victim services such as shelters and social services;
  4. Temporarily or permanently relocate to reduce chances of violence; and/or
  5. Seek legal assistance.

The Bill also specifies that employers must accommodate their employee’s needs to the point of undue hardship and that any information relating to the employee’s leave be kept strictly confidential. Additionally, Bill 26 advises that:

“an employer shall ensure that every manager, supervisor and worker receives information and instruction about domestic violence in the workplace and sexual violence in the workplace.”

If you would like to lend your support to Bill 26 you can do so by signing this petition.

Bill 26 And Workplace Training & Policies

Though Bill 26 still has several bureaucratic and legislative hurdles ahead of it, all signs suggest that the ESA will be amended to include domestic violence leave. Employers would therefore be smart to start considering how their current workplace training and policies will fit into such a framework and start exploring ways in which Bill 26’s proposed changes might be incorporated.

Workplace Policy Lawyers

Workplaces need to develop practices that promote violence prevention and safety, hold abusers accountable for their behaviour, and support victims. KCY at LAW are experienced employment lawyers and can help you craft supportive and practical workplace policies that accommodate all employees and help employers keep their business running smoothly, whatever crisis should arise. Call us at (905) 639-0999 or contact us online to book your consultation now.

Workplace Discipline and Discharge for Social Media: #JustDismissal

Online actions have real world consequences. As our lives move increasingly onto the web, it is important that we remember that the same rules of respect and courtesy we were taught in kindergarten still apply.

If you don’t have anything nice to tweet, don’t tweet anything at all. Especially when it comes to your place of employment.

Workplace Discipline and Discharge for Social Media

Information gathered from your social media activity can be used to justify workplace discipline and even discharge. It is important that workers understand how social media – whether it’s blogs, Facebook posts or tweets – fit into existing employment, privacy and confidentiality frameworks. In short: anything you say on social media can be held against you if it reflects negatively on your employer or violates workplace confidentiality or harassment policies. Away from the work place, social media use can also impact personal injury lawsuits.

The case-law origins for just cause termination of employees for off-duty conduct – fundamental to emerging social media defamation cases – is the 1967 case of Millhaven Fibres Ltd v. Atomic Workers Int’l Union. This case determined that an employee’s behaviour outside the workplace may be grounds for termination if, among other factors, their conduct harms the company’s reputation or product, or makes other employees reluctant to work with them.

When considering if termination is appropriate for online behaviour, arbitrators will consider, among other considerations, the frequency of disparaging posts, if they were violent or threatening in nature, if confidential information was disclosed, the damage to business and reputation of the workplace, and if the accused demonstrated remorse and cooperation to remedy their misconduct.

Cases Regarding Social Media & Disciplinary Outcomes

Cases Regarding Social Media - Lougheed Imports v . Local 1518There have been dozens of cases in recent years where employees have been reprimanded or even fired for cause for things they posted online. Below are two cases that illustrate the disciplinary outcomes facing employees whose online behaviour is deemed incompatible with workplace values and policies.

Lougheed Imports v. Local 1518 (2010)

Two employees of West Coast Mazda in B.C. posted multiple disparaging remarks about their employer and coworkers on Facebook. The two employees were Facebook friends with their manager but nonetheless posted threatening remarks about their employer and told people not to use the business. After the manager confronted the employees multiple times about their behavior on and offline the two were fired for cause. When the two former employees filed a grievance, the Labour Board found that they did not have a reasonable expectation of privacy for their public Facebook posts and that their continued confrontational behaviour after multiple warnings made for just cause for dismissal.

Credit Valley Hospital v. Canadian Union of Public Employees (2012)

After a patient at Credit Valley Hospital sadly jumped to his death from a parking garage, Mr. Brathwaite, a hospital employee, was tasked with aiding in the clean-up of the scene. As he was tending the site of the accident, Mr. Brathwaite took pictures with his cell phone and posted them on Facebook. He was fired for cause shortly thereafter. The employer’s position was that Mr. Brathwaite had violated the hospital’s Code of Conduct and the confidentiality of patient, employee and corporate information. Upon arbitration, a panel upheld the hospital’s decision citing Mr. Brathwaite’s culpable misconduct as well as the fact that he was neither remorseful nor accepting of responsibility for his misbehaviour.

Preventing Social Media Defamation

In order to ensure that employee’s online behaviour does not negatively impact company interests, it is important that employers take preventative measures to educate employees about acceptable use of social media as it relates to the work place. Although many workplace policies regarding confidentiality, privacy and harassment extend to social media and other online activities, many employees are unaware of the online scope of these policies.

In order to protect their business from online employee misconduct, employers should:

  • Ensure that employees are aware of what constitutes “appropriate use” of social media as it relates to the workplace.
  • Have policies that make clear how online behaviour can affect employment.

Preventing Social Media Defamation - Employment Lawyer Burlington

Determining if an employee’s online behaviour is grounds for dismissal is a nuanced task. Be sure to consult with an employment lawyer to determine what disciplinary action online comments and posts warrant.

Experienced Employment Law Team

KCY at LAW is an experienced employment law team that can help you develop fair and enforceable workplace policies regarding appropriate online behaviour and help you to properly address issues should they arise. Call us today on (905) 639-0999 or contact us online to book your consultation.

Illegal Interview Questions: What They Are And What To Do About Them

Are you married? How old are you? How’s your health? Have you ever been arrested? What country are you from? Do you like to drink?

These are probably not questions you want to be asked by someone you barely know, let alone by someone determining your future employment. These prying inquiries may be a faux-pas in polite conversation but they are an absolute no-go in the context of a job interview.

Illegal Interview Questions

Illegal Interview Questions in Canada - KCY at LAWSometimes, versions of these questions may come up casually and innocently in the context of a job interview as employers want to make sure that you will also be a good fit for the company. However, Canadian human rights law prohibits interviewers to ask questions concerning:

  • Country/place of origin and citizenship status
  • Religion, faith or creed
  • Age
  • Gender or sexual orientation
  • Race or ethnicity
  • Family structure, children or marital status
  • Mental or physical health and disability
  • Appearance, height and weight
  • Pardoned offences

With very limited exceptions, it is forbidden to ask questions about any of these topics at any point in the hiring process. Questions should only seek information relevant to the candidate’s ability to perform the job for which they are applying.

How To Deal With Illegal Questions During An Interview

In interviews, passing references to some of these topics may come up – “sorry to delay, my kid is sick and was on the phone, you got kids?”

It is also regrettably possible that an interviewer may make glaringly inappropriate inquiries – “We’re looking for someone committed, do you plan on having children in the future?”

It is up to you to decide in that moment how you want to deal with the situation. Depending on the circumstances, you might not want to stop the interview in its tracks and instead decide to deflect or even directly answer the question. Some options when confronted with this situation are:

  1. “My [family status/country of origin etc.] does not affect my ability to perform this job.”
  2. “I’d prefer not to answer this question unless there is a particular reason why it is relevant.”
  3. “Can you please explain to me how this is applicable to my performance of the job?”

The trouble with certain inappropriate questions is that, even if they were asked in passing and without mal-intent, they leave open the question of what role your answers to them played in the hiring process.

Kartuzova v HMA Pharmacy Ltd - Employment Lawyer KCY at LAW

Kartuzova v HMA Pharmacy Ltd.

According to the Ontario Human Rights Tribunal (OHRT), simply asking improper questions is enough to prove discrimination. Such was the case with Kartuzova v HMA Pharmacy Ltd. In this case, Kartuzova applied for a position as a pharmacy technician and was denied the job after an interview ended suddenly following questions about her family and marital status, financial situation, and how she came to Canada. Kartuzova said she had felt obligated to answer these questions and that the tone of what had otherwise been a very positive interview changed abruptly following her answers. The OHRT ruled that the questions Kartuzova had been asked were in violation of the Human Rights Code and ordered the pharmacy to pay her $4,000 for loss of dignity and $496.13 for lost wages.

Employment Law Experts

If you have been asked inappropriate or discriminatory questions during an interview that you felt affected your employment offer, KCY at LAW can help you to register a claim with the OHRT to seek compensation for your lost opportunity. Call us at (905) 639-0999 or reach us online to book your consultation.

Unpaid Internships: What You Need To Know When You Are Working For Free

“We are currently looking for a part-time Graphic Designer to join our Marketing & Communications team in Toronto. The ideal candidate will be responsible for creating and producing visual solutions to communicate messages and ideas that inspire and inform,”

reads an ad on Indeed.ca.
To be eligible for this position you must have, among other qualifications:

  • a degree in media design
  • minimum two years’ experience in media design field
  • advanced knowledge of HTML, CSS and JavaScript

The starting wage for this job? $0.00 per hour.

Does the compensation seem commensurate with the skills and experience required? Would you go to work every day and not get paid? This is exactly the situation many young people face as they are forced to pay their dues in the Internship Market.

Concerns With Unpaid Internships

One of the chief concerns with unpaid internships, besides their occasionally exploitative nature, is that they foster inequality. Working for free generally means that there is someone with the means to support you during this time and so it is often children from wealthier families who are able to reap the benefits that some unpaid internships can provide.

Companies will counter criticism of unpaid internship practices saying that they don’t want to hire someone incompetent or that they can’t afford to hire more staff. We would counter that this is what probationary periods and training is for, and that if your company cannot run without free labour, you probably need to reconsider your business model.

The only legal argument unpaid internship-providing businesses and organizations can submit is that they offer useful training to those without job experience to pad their resume and prepare them for the work environment. Unfortunately, many internships provide little in the way of mentorship and practical workplace skills.

Canadian Government Crack Down on Unpaid Internships

Canadian Government Crack Down on Unpaid Internships

The spread of unpaid internships amounting to little more than a lesson in photocopying and coffee preparation has led the Canadian government to crack down on them in recent years. In 2015, the Ontario government came down hard on illegal internships and recovered nearly $140,000 in lost wages owed to interns. Employment standards officers investigated 77 workplaces with interns and found that nearly a quarter failed to meet Employment Standards Act (ESA) requirements.

Determining If Unpaid Interships Are Legal - KCY at LAW

Determining If An Unpaid Internship Is Legal

So, what determines if an unpaid internship is legal?

All employees are entitled to the rights guaranteed by the ESA, including the minimum wage. However, just because an organization calls you an intern, doesn’t mean you are one in the eyes of the law. The Ministry of Labour requires that six criteria be met in order for an internship to be unpaid. Unless all of the conditions outlined below are met, your internship must be paid:

  1. The training is similar to that which is given in a vocational school.
  2. The training is for the benefit of the intern. You receive some benefit from the training, such as new knowledge or skills.
  3. The employer derives little, if any, benefit from the activity of the intern while he or she is being trained.
  4. Your training doesn’t take someone else’s job.
  5. Your employer isn’t promising you a job at the end of your training.
  6. You have been told that you will not be paid for your time.

The one notable exception to these requirements is if the internship is part of a college or university program intended to offer practical training to complement classroom learning.

Recover Lost Wages With Experienced Employment Lawyers

Being new to the labour force does not mean that you should have to work for free. We believe that your time is valuable. If you feel that you are being taken advantage of at an internship, an experienced employment lawyer at KCY at LAW can advise you of your rights and help you recover any lost wages. Call us at (905) 639-0999 or contact us online to book your consultation.

Breastfeeding and the Duty to Accommodate

Everyone wants the best for their children. From day one, all parents want their child to be happy and healthy and strive to provide for their child in the best way possible. Additionally, by law parents are obligated to ensure that their children receive adequate care and nurturing. Childcare involves, among other things, making sure your child is clothed, supervised and fed. One way in which some mothers choose to provide the latter of these childcare essentials is through breastfeeding. According to Statistics Canada, nearly 90 per cent of mothers breastfeed their baby, and many do so for six months or longer.

What the Law Says About Breastfeeding

While only British Columbia and Ontario have laws that explicitly protect breastfeeding as a right, the Canadian Human Rights Act prohibits discrimination based on sex, and the Canadian Charter of Rights and Freedoms guarantees “gender equality” under the law.

Women who choose to breastfeed face unique challenges in balancing the needs of their child and their employment obligations. However, the Ontario Human Rights Commission (OHRC) explains that, “women should not have to choose between their own health, or the health of their baby, and their jobs, housing or being able to take part in a service.”

Therefore, accommodation to the point of undue hardship for breastfeeding mothers is required by the OHRC. “The goal of accommodation,” explains the Commission, “is to help everyone have equal opportunities, access and benefits.” You can read more about the basics of about breastfeeding and parental leave here.

The case of Cole v Bell Canada (2007) illustrates employers’ duty to accommodate breastfeeding mothers.

Cole v Bell Canada (2007) – Breastfeeding & The Duty To Accommodate

Cole v Bell Canada - Breastfeeding Rights - Employment LawyerFollowing her maternity leave, Hayley Cole, an employee of 13 years with Bell Canada, asked for a scheduling accommodation so she could breastfeed her son. Her son had been born with a heart defect and her doctor recommended that she breastfeed him as long as possible in order to help the baby’s immune system. Cole developed a schedule to nurse at 4:30 p.m. every day since she usually worked from 8 a.m. until 4 p.m. However, her shift occasionally ended at 4:15 p.m. and so she asked to regularly take one hour unpaid personal time off so she could nurse him by 4:30 p.m.

Her request was ignored and so Cole sought a firm 8 a.m. to 4 p.m. work schedule. Bell asserted that this request affected seniority rights and that they would need medical information in order to provide this accommodation. After submitting multiple doctor’s notes, Cole was granted accommodation for one year, not on the grounds of needing to breastfeed her son, but as a preventative measure against mastitis. After a year of accommodation, Bell asked for updated medical information if Cole wanted to seek ongoing accommodation.

CHRT Cole v Bell Canada Findings

In response to her human rights complaint, the CHRT found that Bell did not uphold its duty to accommodate its employee and ruled:

  1. Discrimination towards an employee because she is breastfeeding is a form of sex discrimination.
  2. A mother’s request for accommodation to breastfeed should not be treated as a medical/disability issue.
  3. A woman does not need to submit supporting evidence to demonstrate a need to nurse her baby at specific times.
  4. A baby’s health should be of no consideration in assessing a request to accommodate breastfeeding. A mother’s motivations for breastfeeding are of no relevance to such a request.

Furthermore, the Tribunal expressed that Cole’s request for a fixed schedule did not impose any hardship on Bell, let alone undue hardship. Bell was ordered to pay damages of $5,000 plus the cost of time Cole lost for getting medical notes.

Best Practices for Accommodating Breastfeeding and Pregnant Women - Employment Law Canada

Best Practices To Accommodate Pregnant & Breastfeeding Women

In order to foster a respectful and equitable work environment, employers should be supportive, flexible, and creative in developing accommodations for pregnant and breastfeeding women. Possible accommodations may include:

  • flexible work hours;
  • different job or duties;
  • part-time work; and
  • longer or extra breaks during which to nurse

Employers should discuss options with their employees early and openly, and be prepared to change arrangements as time goes on.

Workplace Policies for Pregnant or Breastfeeding Women

If your employee is requesting accommodation for childcare duties, KCY at LAW will help you develop fair and respectful workplace policies in line with Canadian law. If you have been discriminated against at work because you are pregnant or breastfeeding, our expertise in employment law will help you get the compensation you deserve. Call us today at (905) 639-0999 or contact us online to find out more.

Mental Health and Long Term Disability

Ailments of the mind are, unfortunately, not yet as well understood or recognized as ailments of the body. They are, nonetheless, just as serious in their impact on individuals’ ability to cope with the tasks of daily living. Mental illness is among the most significant causes of long term disability in Canada according to the Centre for Addiction and Mental Health.

Mental Illness & Long Term Disability

Mental Illness and Long Term DisabilityMental illness can be responsible for a variety of disorders that affect an individual’s behaviour, mood, and thoughts. Mental illness can manifest itself in a variety of disorders including, but not limited to:

  • Depression and bi-polar disorder
  • Anxiety and panic disorders
  • Personality disorders such as obsession compulsion
  • Post traumatic stress disorder

Your health, both physical and mental, has a substantial impact on your ability to function in life independently and in social settings. As with physical illnesses, the extent to which a mental disorder impacts someone’s life is variable from one person to the next. The same variability can be seen in the effectiveness of treatments. While therapy or medication may work for one person they may not be helpful to another. Recovery from mental illness can therefore be unpredictable and ongoing. For this reason, long-term disability (LTD) coverage can be the most helpful support option for individuals suffering from mental health disorders.

Long Term Disability Benefits

LTD benefits are intended to cover any health-related issue preventing individuals from being able to work. Workplace policies tend to differ regarding the coverage they offer and many insurance companies will demand that you apply for Canada Pension Plan (CPP) disability benefits to offset their costs.

If You are Experiencing Mental Illness…

If your mental health is inhibiting your ability to work you should, first and foremost, seek medical help through your doctor or therapist and pursue their recommended treatment plan. In order to successfully pursue a disability claim, you must have a legitimate diagnosis of a mental illness that impedes your ability to function in normal life activities. To further support your claim, it is advisable to keep a daily record of your condition, its manifestations, and how it impacts your personal, family, and work life. This information can help your doctor to provide effective treatment and provide supporting evidence for your Long Term Disability claim (LTD Claim). Your LTD claim is more likely to be successful if you are able to demonstrate your commitment to a physician-monitored treatment plan.

Challenges When Applying For A Long Term Disability Claim

Filing for long-term disability can be a complex and trying endeavour. Because mental illness is often ‘invisible’ insurers are frequently sceptical over the validity of claims. It is easy to see that a construction worker who has suffered a spinal injury would be unable to perform their job in the foreseeable future, it is less outwardly evident that an office worker who is experiencing depression would need time to recover before returning to work.

Challenges Applying for Long Term Disability Claim - KCY at LAW

Insurance companies deal with a significant volume of benefits claims involving mental health. In order to save money, insurers have several strategies on which to draw so that they may minimize or deny the legitimacy of your claim. Hiring a private investigator to get footage of you doing things that may be construed as contradictory to your stated disability is a common practice. The new and inexpensive way to surveil you is to watch you on Facebook or on other Social Media (read how social media can impact your personal injury lawsuit here). They may also insist that you are evaluated by their own doctor who may critique your doctor’s diagnosis. To counter the doubt cast by insurance companies, it is imperative that you pursue and document appropriate medical treatment. The main reasons for being denied disability benefits is the failure to do these things.

Expert Long Term Disability Lawyers for Mental Health Claims

Above all, we recommend that you seek help early, so as not to aggravate your suffering. Because of the complications that often arise in LTD cases involving mental health, it can be helpful to have a lawyer manage your application and advocate on your behalf with insurance companies. KCY at LAW have helped many clients receive long term disability insurance benefit and can help you do the same. Call us at (905) 639-0999 or contact us online to book your consultation.

Workplace Drug and Alcohol Testing: What Employers Need to Know

Would you fire an employee for having a hearing aid? What about alcohol addiction? Addictions are considered ‘disabilities’ under the Ontario Human Rights Code (OHRC) and are therefore afforded the same protections under the law as physical and mental disabilities. Accordingly, the Code prohibits employment discrimination against people with drug and/or alcohol addiction(s) and requires employers to accommodate employees with addictions to the point of undue hardship. Several landmark trials as well as decades of case law have established that workplace drug and alcohol testing generally amount to discrimination.

Workplace Drug & Alcohol Testing

However, there are some unique circumstances in which discrimination may be justified. The OHRC recognizes that workplace safety is a legitimate goal and that, given certain circumstances, impairment from drug or alcohol dependency can render a workplace unsafe. The rare cases of acceptable drug and alcohol discriminatory practices usually involve industrial workplaces such as oil rigs and construction sites where sharp mental acuity is necessary to avoid serious workplace accidents.

Workplace Drug & Alcohol Testing - Employment Law

Legal Precedents: Entrop v Imperial Oil Ltd. & Irving Pulp v Local 30

Legal precedents for limiting discrimination on the basis of addictions were set out in Entrop v Imperial Oil Ltd. (2000) and Irving Pulp v Local 30 (2013) among other cases. In Entrop v. Imperial Oil, Imperial Oil implemented a random drug and alcohol testing policy after they determined that the 1989 Exxon Valdez oil spill may have partly resulted from the captain’s alcohol abuse. The Ontario Court of Appeal determined that this policy infringed on the OHRC. Similarly Irving Pulp’s policy that a randomly selected 10% of employees submit to unannounced breathalyser testing over the course of a year was determined to be unethical due to a lack of evidence of a substance abuse problem. While inconsistencies among case law remain, it is nonetheless extremely difficult to implement random drug and alcohol testing, especially in unionized workplaces.

5 Guidelines for Implementing Drug and Alcohol Testing in the Workplace

Guidelines for Implementing Drug & Alcohol Testing In The Workplace

  1. Employers must demonstrate that testing is a legitimate requirement for the job. Sobriety must be demonstrably necessary to workplace safety.
  2. Policies must be centred on job performance. Zero tolerance policies are generally unacceptable because they do not distinguish between substance use and impairment. A small amount of alcohol in an employee’s system, for example, may have no impact on their performance.
  3. There must be evidence of a substance abuse problem. In this regard, factors such as location must be considered. An entire company should not undergo testing if it is identified that only a certain group or section of personnel appear to be using drugs or alcohol in a way that renders the workplace unsafe.
  4. Testing must assess current impairment. Tests like breathalysers and saliva swabs can be effective whereas there are limitations to urinalysis as one cannot determine if substance use is concurrent with work hours. Moreover, testing must be minimally intrusive and use maximally accurate methods.
  5. Practices must respect the dignity of employees. Testing should be respectful, confidential and never done to intimidate or humiliate.

Even if all of the above circumstances have been met, it may still be necessary for an actual workplace accident or near-accident resulting from the impairment of an employee to implement drug and alcohol testing.

Employers Must Demonstrate Undue Hardship

Furthermore, employers must demonstrate that undue hardship would be experienced in order to accommodate an employee with a substance abuse problem. Accordingly, employers should have an exhaustive framework of policies – such as employee assistance programs that offer counselling and treatment – designed to help and accommodate employees with substance dependencies. If drug and alcohol testing programs are deemed reasonably necessary and ethically acceptable, employers should develop a personalized method of assessment and accommodation for affected employees.

Expert Drug & Alcholol Legal Advice for Employers & Employees

If you have been discriminated against for substance dependency or you suspect one of your employees to be endangering the work environment because of drug or alcohol addiction, call KCY at LAW to speak with an experienced employment lawyer who can advise you of your rights and responsibilities under the Ontario Human Rights Code. You can reach us at (905) 639-0999 or contact us online now for expert advice!

PIPEDA, Privacy Laws & Personal Information

Contrary to what many believe, there is no explicit ‘right’ to privacy for many employees. Moreover, privacy laws are seldom absolute; there are almost always exceptions to their rules. As a result, issues of privacy tend to centre on moral questions rather than ones of legality. So what can an employee expect with regards to privacy of information?

PIPEDA, Personal Information Protection & Electronic Documents Act

Employee’s main source of privacy protection is the Personal Information Protection and Electronic Documents Act (PIPEDA). PIPEDA legislates how private sector bodies collect, use, and disclose personal information in the course of business. PIPEDA applies to the collection of private employee information ranging from date of birth and marital status, to medical history and criminal record. It is intended to balance an employer’s need-to-know with an employee’s right to privacy.

pipeda-advice-for-employers-kcy-at-law

Fundamental to the act is that information be collected and disclosed with employees’ knowledge and consent. That is, employer’s must be clear about what data will be collected, why it is being collected and how it will be used. Only information relevant to the stated purpose of collection should be obtained. For example, an employee’s elementary school is likely unnecessary information for an employer trying to improve workplace safety.

PIPEDA Requirements

Furthermore, information about employees should only be used for its stated purpose. Emergency contact information, for example, should not be added to company’s email or calling list. Employees also have a right to know who is responsible for protecting their personal information and that the organization is taking appropriate security measures to do so. Information should be accurate, up to date, and only kept for as long as it is necessary or legally required. Lastly, employees must be able to access their information at all times to ensure that it is accurate and up to date.

pipeda-for-employers-toronto-canada-kcy-at-law

PIPEDA For Employers

The best rule of thumb for employers is to be transparent. Make it clear to employees what is being collected and why. Explain how it will be used and when it will be destroyed. If you are developing workplace information collections policies and procedures KCY at LAW can help you ensure that your policies are clear, understandable and consistent with PIPEDA standards. Call us today at (905) 639-0999 or visit us online to book your consultation.