It’s a common question, and the answer to it comes as a surprise to many. Being totally disabled may sound like you would have to be completely bedridden or in a vegetative state. This, however, is not the case. The legal definition of total disability as it relates to disability benefits and insurance is more reasonable than you might expect.

What Is Total Disability? – According To The Courts…

In 1983, the Supreme Court set out a basic threshold for total disability when they cited Couch on Insurance in their decision for Paul Revere Life Insurance Co. v. Sucharov:

The test of total disability is satisfied when the circumstances are such that a reasonable man would recognize that he should not engage in certain activity even though he literally is not physically unable to do so. In other words, total disability does not mean absolute physical inability to transact any kind of business pertaining to one’s occupation, but rather that there is a total disability if the insured’s injuries are such that common care and prudence require him to desist from his business or occupation in order to effectuate a cure…

Your Insurance Policy Defines Your Total Disability Entitlements

The specific details of what is considered total disability will vary depending on your disability insurance plan. Your plan will define your entitlement to disability benefits based on your ability to perform work either in your job, your field, or the labour force in general.

While the specific parameters of what it means to be totally disabled will vary from one policy to the next, it generally means that you are unable to reasonably perform the regular functions of your usual job. However, depending on your insurance policy’s total disability definition, your ability to perform work other than the job you were doing at the time you became ill or injured may impact your benefit entitlements.

Some policies only require that you be unable to do your specific job in order to be considered totally disabled. Others, by contrast, may require that you be unable to perform other work – even if it is outside your field of interest or expertise – in order to qualify for total disability benefits.

All insurance policies, however, will require that you receive the appropriate care from a qualified physician in order to qualify for total disability benefits.

Six Common Definitions of Total Disability

There are six common definitions of total disability:

1. Own Occupation
2. Regular Occupation
3. Any Occupation
4. Reasonable Occupation
5. Limited Regular Occupation
6. Loss of Income

1. Own Occupation
This definition of total disability requires that, directly because of injury or illness, you are unable to perform the important duties of your occupation. Own occupation looks at your ability to perform your specific job duties. Being able to perform other tasks does not disqualify you from receiving benefits.

This is the most generous definition of total disability. Policies that define total disability in terms of own occupation are also the most expensive. They tend be available only to individuals at the top of their occupational field such as CEOs or specialized surgeons.

2. Regular Occupation
The regular occupation definition of total disability is the most common definition offered in insurance policies. It is similar to own occupation except that it is broader in the types of employment you may have to pursue.

Being unable to perform the specific duties of your occupation alone does not entitle you to total disability insurance benefits. However, you would not be expected to take on employment unsuited to your skill and education level. For example, an injured industrial electrician would not be required to take on a job as a cashier but may be required to find employment as an electrician in another, less physically-demanding sector of the industry.

3. Any Occupation
This definition of total definition is the least liberal but also the least expensive. To qualify for total disability benefits under this definition, you would have to be unable to perform gainful employment in any occupation for which you are reasonably qualified based on your education, training and experience.

4. Reasonable Occupation
This definition is similar, but slightly more liberal, than the any occupation definition of total disability. It includes any occupation for which you may reasonably become qualified through education, training and experience.

5. Limited Regular Occupation
This definition protects you on the basis of the regular occupation definition of total disability for the first 24 months of your injury or illness. Thereafter, your coverage shifts to the any occupation definition of total disability.

6. Loss of Income
Loss of income definitions of disability do not define total disability in terms of your ability to perform a job. Instead, they pay benefits based on your loss of income due to illness or injury. For example, if you are completely unable to work and earn any income, you will receive the full benefit. However, if you are able to work somewhat, the insurance will supplement a percent of your lost income.

Employment Lawyers Can Help You Receive Your Maximum Benefits

If you are unable to work due to illness or injury and wish to file for disability benefits, KCY at LAW have the expertise to help you navigate the complex process of insurance claims. Call us at (905) 639-0999 or contact us online here.

We recently gave you an overview of some of the regulations and best practices guiding background checks in Canada. In case you don’t have time to go back, the two main takeaways were:

1. Do not conduct background checks until you have made a candidate a conditional offer of employment.
2. All background checks should be reasonable to the needs of the job and done with the informed consent of the candidate.

Different Types of Backgound Checks

This week, we’ll go into detail about the different types of background checks an employer might want to undertake and how to do so reasonably and legally. We’ll look at background checks for a candidate’s:

• education
• professional qualifications
• employment references
• credit record
• driver’s record
• criminal background

Let’s get right into it.

Education Background Checks

Education Background Checks are meant to confirm that your candidate’s educational qualifications are accurate. There are no specific legal restrictions prohibiting employers from confirming the accuracy of a candidate’s qualifications or transcripts with an educational institution. However, employers should exercise caution; contacting a school could reveal where a student was educated or what year they graduated: information from which age and country of origin might be inferred and the potential for discrimination arise from illegal interview questions.

Professional Qualifications Check

This type of background check involves confirming a candidate’s professional experience. Have they worked where they said they worked and for as long as they have claimed? This check does not involve questioning former employers about your candidate’s performance or personality. For that, you will need to consult your candidate’s employment references.

Employment References Check

Whereas with professional qualifications check you are merely confirming that the candidate has indeed worked at a place for a specified period of time, a reference check allows you to get a former boss’s take on your candidate’s competency, workplace productivity and behaviour.

There aren’t any restrictions about contacting references at any point during the hiring process. However, it is advisable to have a standard set of questions to ask references of all candidates to avoid bias or discrimination.

Background Credit Checks

It is permissible to conduct credit checks and refuse employment based on their results. However, they are really only necessary for positions where the employee would have the opportunity to commit theft or fraud such as bank employees or accountants.

Before conducting a credit check, written notice must be provided to the candidate. Because conducting a credit check requires information about the candidate’s age, it should not be performed until after a conditional offer of employment has been presented.

Driver’s Record

This record check requires the person’s name, address and drivers license number and will bring up information about your candidate’s driving and license details. A driver record check is really only a bona fide occupational requirement for jobs like drivers, truckers and some sales positions.

Criminal Background Checks

While you may think it would be nice to know if your job applicant has a criminal record, criminal background checks aren’t always necessary. In most cases, an employment check will suffice. Criminal background checks are reasonable for employees who will be working in positions of trust or dealing with vulnerable populations such as the young, old or disabled. Since criminal background checks can easily bump up against human rights law and privacy issues, it is best that employers demonstrate that there is a bona fide occupational requirement for conducting one. Employers must receive written consent from their prospective employee before performing any sort of criminal background check.

There are three types of criminal record checks: Criminal Record Checks (CRCs), Police Information Checks (PICs), and Vulnerable Sector Checks (VSCs). CRCs bring up criminal and summary convictions. PICs disclose convictions, outstanding and discharged charges. VSCs are the most comprehensive. They perform all the checks of both CRCs and PICs and include if the person has received a pardon for a sexual offence conviction. Some industries, such as child and elder care, are required by statute to ensure their employees have undertaken a VSC,

If you need to perform criminal background checks on prospective employees, it is imperative that you do not single out any particular candidate for said check. Doing so would be discriminatory and therefore illegal.

Additionally, you cannot discriminate against someone who has been convicted of an offence unless you can demonstrate that this offence will directly impact their ability to perform the job.

Bonus! Social Media Background Checks

Checking a candidate’s public social media accounts for information that might help you make a hiring decision (i.e. their credentials and social judgement) is permissible under Canadian law. Checking a candidate’s public social media accounts can be done at any time during the hiring process – within limits. For an in-depth look at social media and hiring you can check out our blog on just that where we talk about social media and hiring practices.

Experts in Employee Background Checks

If you are in the process of hiring the perfect employee to join your team and are considering performing background checks, speak with an experienced employment lawyer to protect yourself from legal action. Contact KCY at LAW at (905) 639-0999 or reach us online here.

Excellent. You’ve found your dream hire. After weeks of searching, resume-scanning and interviews, you’ve found the right person to join your team. They had a solid resume and during their interviews they seemed friendly, capable and like an overall good fit for your team. You’re ready to present them with an employment contract. Almost.

Pre Employment Screening & Background Checks

There’s only so much you can glean about a candidate from their resume and cover letter. Interviews are a great opportunity to get to know a candidate a little better, but people tend to put their best foot forward in such situations. I work too hard and I care too much are probably the most common, but least candid, answers to the what’s your biggest flaw question.

Background checks are an employer’s opportunity to fact check a job candidate. This pre employment screening could mean verifying their educational credentials, getting feedback from former bosses or checking to see if they have a criminal record.

As an employer, you will no doubt want to know as many details as possible about your top candidate before hiring them. But you must also give every candidate a fair chance and be reasonable in what information you gather.

Privacy Law in Canada

It is essential that, as an employer, you know and understand the limits of what information you can and cannot collect about your job candidate and how it should be handled upon collection. Background checks are governed by privacy law. The Federal Privacy Act and the Freedom of Information and Protection of Privacy Act regulate what is permissible for background checks in the public sector. For federally regulated industries like banking and telecommunications, background checks are guided by the Personal Information Protection and Electronic Documents Act (PIPEDA). In the private sector, employee information isn’t always subject to privacy law.

Background Checks in Canada – Be Reasonable

Any type of background check should be done in good faith. You may want to gather as much information as possible before hiring a candidate, but you also need to be reasonable about the relevance of the information you gather to the candidate’s ability to perform their job. Do you need to know your cashier’s driving record? Does your science tutor’s credit record matter?

What To Consider When Performing A Background Check

Informed consent is always the best practice when collecting information about potential employees. Your collection of information should also be reasonable in its scope, use and disclosure. When performing a background check:

1. don’t collect more information than what you need or is relevant to the job position;
2. only use the information for the purpose for which it was stated to be used;
3. properly store and protect the information so that it is only accessible to those for whom it is relevant;
4. make all personal information you collect about a potential employee available to them to view and verify its veracity; and
5. delete or destroy the information once it is no longer needed or necessary.

Avoid Discrimination

Background checks open up the possibility for a wide range of discrimination concerns. It is illegal to ask questions about a candidate’s age, sex, place of origin or other human rights-protected grounds during the application process. The Human Rights Commission even prohibits you from refusing employment because of a summary offence (i.e. a minor driving related conviction) or because someone has been convicted of a criminal offence for which they’ve received a pardon.

Background checks can often turn up information about a candidate’s age, citizenship and other human-rights protected grounds and can therefore lead to accusations of discrimination depending on how the check impacts your hiring decisions.

Therefore, it is best to make a conditional offer of employment pending the results of the background check. Additionally, you should make it clear from the outset to all candidates what background checks will be performed and why. This way, all applicants can expect the same treatment and, as long as the relevant background checks come up clean, the job.

Background Checks Conclusions

Now that you have a basic overview of the laws and best practices governing background checks, you’re ready to learn about the specific types of background checks available to employers and how and when they can be reasonably conducted. Stay tuned for next week’s blog where we’ll delve into the details of half a dozen different types of background checks.

Legal Advice For Background Checks

If you’re an employer who’s hiring and looking to conduct background checks on your candidates, contact KCY at LAW for the employment law expertise you need to get yourself the best candidate. Call us on (905) 639-0999 or fill out our online form here for more information.

What does it mean if you are entitled to a discretionary bonus? Does this mean that you’re guaranteed a bonus, as the word entitled would suggest? Or are you subject to the discretionary whims of your employer?

Despite the enticing promise of entitlement, your receipt of a bonus and its amount is most likely at your boss’s discretion.

Bonus Packages & Bonus Entitlements

Bonuses can be an exciting windfall or an important part of your compensation package. Maybe this year was especially profitable and your boss wants to give you some extra cash around the holidays. Or maybe a 15% bonus was guaranteed on top of your salary as a contractual benefit. Whatever the case, bonusses and your entitlement to them will be set out in your employment contract.

Most often, bonuses are discretionary. Bonuses are commonly awarded as a token acknowledgement of an employee’s performance or to share the success of a company. There is generally no set formula or procedure for calculating a discretionary bonus. Their amount and frequency are up to your employer.

Other times, bonuses make up an important part of an employee’s compensation package as outlined in their employment contract. In such instances, bonuses can make up a significant part of an employee’s annual earnings. The parameters of these bonuses – how they are calculated and awarded – will be set out in the employment contract.

Bonuses in Contracts

Unfortunately, wording regarding bonuses in contracts is often vague and this can leave employees wondering if they can count on extra cash in addition to their salary.

It is important that bonus clauses are clear and consistent with the expectations of both parties. Being told that you can expect bonuses of 25% of your salary is no guarantee that you will unless this is clearly stated in your contract.

What Is A Discretionary Bonus?

Obviously, a discretionary bonus is to the advantage of the employer. A discretionary bonus allows employers to adjust according to their business’s financial situation. If the economy is rough, the employer can forgo distributing bonuses altogether and if the business is thriving, they can share that success with their employees. On the other hand, non-discretionary bonuses must be distributed as directed in the employment contract regardless of the company’s financial situation. As such, they can be an effective means of attracting top talent.

Bonus Packages & Entitlements Experts

Either way, bonus entitlements should be laid out clearly in the employment agreement. If brought before a judge, ambiguous wording regarding bonus entitlements will generally be ruled to the benefit of the employee.

If you have questions about your bonus entitlements or wish to incorporate a bonus program into your employees’ contracts, contact the professional employment law team at KCY at LAW: (905) 639-0999 or book your consultation online.

You were laid off? Oh no! That’s awful. I’m so sorry. You know what, they never appreciated you the way you deserve. What a lousy bunch of – temporarily? Ohhhh. Huh. So, you’re not fired? Ok. Refresh my memory on this whole temporary layoff thing!

What Is A Temporary Layoff?

Chances are, you’ve heard of temporary layoffs. Maybe you’ve wondered if this could happen to you and, if it did, what exactly that would mean.

A temporary layoff is the cutting back or complete cessation of an employee’s employment with the understanding that they will be called back to their full-time position within a specified period of time. A temporarily laid off individual is still considered an employee, even if they are not working. This can mean that they are not working at all, or even simply earning less than half of their regular wages.

Temporary Layoffs – A Solution for Hard Times

A temporary layoff is a way mitigate economic hardship for both employer and employees. Temporary layoffs are often brought on by things like economic downturn, shortages of work and seasonal employment.

Temporary layoffs are most common in union environments where collective bargaining agreements determine the parameters of a layoff such as which employees are the first to return to work.

A temporary layoff allows employers to avoid severance or termination costs as long as the employee is recalled to work within 13 weeks of the layoff’s commencement. Though it would certainly be appreciated by their employees, employers have no obligation to provide notice of a layoff. Additionally, employers are not required to give termination notice until the last day of the layoff should it become clear that the layoff will have to become permanent.

Contractual Agreements and Temporary Layoffs

The parameters of temporary layoffs are set out in the Employment Standards Act (ESA). However, the ESA doesn’t give employers the right to enact them. The right to temporarily layoff an employee must be contractually stated, either in the employment contract or the collective bargaining agreement.

If an employee is temporarily laid off without a provision for this in their contract, the layoff would be considered a constructive dismissal and the employee would be entitled to seek damages for wrongful dismissal.

Wrongful dismissal charges may be avoided if the laid off employee is immediately recalled to their former position. Furthermore, some courts have found that employees who refuse to return to their position after a non-contractual layoff will be found to have failed in their duty to mitigate their damages.

If the power to perform temporary layoffs was not in written agreement at the time of hire and an employer wishes to pursue this option, they should approach their employee with a written proposal for a temporary layoff. It is possible that the employee will choose this over termination, especially since employees can usually collect Employment Insurance benefits during a layoff.

How Long Can Temporary Layoffs Last?

A temporary layoff can last up to 13 weeks in a consecutive 20-week period. However, if a layoff exceeds this 13-week period it will become a termination at which point the employee will be entitled to termination pay in lieu of notice with the first day of the layoff becoming the date of termination.

However, the ESA provides that a temporary layoff may be extended to as long as 35 weeks if:

• The employee continues to receive substantial payments from the employer,
• the employer continues to make payments for the benefit of the employee under a legitimate retirement or pension plan or a legitimate group or employee insurance plan,
• the employee receives supplementary unemployment benefits,
• the employee is employed elsewhere during the lay-off and would be entitled to receive supplementary unemployment benefits if that were not so,
• the employer recalls the employee within the time approved by the Director, or
• in the case of an employee who is not represented by a trade union, the employer recalls the employee within the time set out in an agreement between the employer and the employee; or

If an employee quits before a layoff is over they are not owed severance or termination packages but may still be entitled to accrued benefits such as vacation pay.

Temporary Layoff Legal Experts

Employers should always seek legal counsel before temporarily laying off an employee. To speak with an experienced employment lawyer about temporary layoffs or any other employment law matter, call KCY at LAW at (905) 639-0999 or contact us online here.

Working long hours? We get you. Having recently finished up a trial that had us at the office in the wee-est of hours, we can commiserate over the exhaustion that arises from fitting two weeks’ worth of work into one. Deadlines must be met but workers must also be fairly compensated for their lost free and family time.

When Does Overtime Start?

Overtime starts for most employees after working 44 hours in a work week (regardless if their employment status is full- or part-time, or casual). After 44 hours of work in a week, they must receive at least time and a half for each extra hour they work (1.5 times their normal wages). Unless explicitly agreed to in the employment contract, overtime is not calculated daily. This means that an employee could work 11 hours in one day and not receive time and a half after their initial eight hours on the job so long as over the course of the week they do not exceed 44 hours of work.

Exceptions To Overtime Standards

There are, however, several exceptions to overtime standards. Managers and supervisors, for example, are not covered by overtime rules. While calling more members of your staff by these titles to avoid paying them overtime may seem like a sneaky way to save your business money, simply calling an employee a manager or supervisor does not make it so. Only people with the authority to hire, fire and grant time off to employees, and who participate in business and operations-level decision making are considered managers when it comes to overtime entitlements.

Overtime and Public Holidays

When it comes to overtime pay and public holidays there are three possibilities:

• The employee has the day off and receives public holiday pay.
• The employee works and gets premium pay (1.5 times regular pay) plus public holiday pay. This results in the employee earning 2.5 times their regular wages, also referred to as double time and a half.
• The employee works the holiday, earns regular wages and receives an alternate day off with public holiday pay.

How to Calculate Overtime Pay

There is some variation in how overtime pay is calculated depending on how the employee is paid (hourly, commission, salaried, etc.). However, the basic principle that the employee’s average hourly wage is multiplied by 1.5 for every hour they work after 44 hours in a week remains consistent. Below are some examples of what that can look like.

Hourly Wage
Daphne’s regular hourly wage is $16. She worked 48 hours this week meaning she worked 4 hours overtime. Therefore, Daphne is entitled to an additional $96 to her regular weeks’ wages of $704 (44 hours x $16 = $704) for a total earning of $800.

48 hours – 44 hours = 4 hours overtime
1.5 (time and a half) x $16 (hourly wage) = $24 overtime wage
$24 (overtime hourly wage) x 4 (hours overtime) = $96 overtime pay

Hourly Wage plus Commission
For an employee working an hourly rate plus commission, their overtime rate is calculated by taking their total week’s earnings (including commissions) and dividing it by the regular number of hours (44) to establish what would be their hourly wage and therefore the wage that will be used to calculate overtime pay.

So, if Frieda worked 50 hours last week and earned $400 commission in addition to her $12 per hour wage she would be entitled to $180 in overtime pay in addition to her $1000 wages (50 hours x $12 = $600 + $400 = $1000) for a total earning of $1180.

50 hours – 44 hours = 6 hours overtime
$1000 (weekly earnings) ÷ 50 hours = $20 per hour (average hourly wage)
1.5 (time and a half) x $20 (hourly wage) = $30 overtime wage
$30 (overtime hourly wage) x 6 (hours overtime) = $180 overtime pay

Fixed Salary
Similarly, for an employee with a fixed salary you must divide their weekly salary by 44 (hours) to get the hourly rate you will use to calculate their overtime pay.

Harriet is paid a weekly salary of $1,500. She worked 46 hours last week and is therefore entitled to $102.27 overtime pay in addition to her regular pay of $1,500 for a total earning of $1,602.27.

46 hours – 44 hours = 2 hours overtime
$1,500 (weekly salary) ÷ 44 hours = $34.09 per hour (average hourly wage)
1.5 (time and a half) x $34.09 (hourly wage) = $51.14 overtime wage
$51.14 (overtime wage) x 2 (hours overtime) = $102.27 overtime pay

Time Off Instead of Overtime Pay

It is possible as an employee to receive time off instead of overtime pay. This is often referred to as ‘banked time’ and must be agreed to in writing by both employer and employee. The employee must receive at least 1.5 hours paid time off for each hour of overtime worked within three months of the week in which the overtime occurred or within a year if the employee is agreeable in writing.

Overtime Averaging Agreements

You may be reading this post and thinking to yourself: “but I regularly work over 44 hours in a week and have never received overtime pay. Is this even legal?” The answer ‘yes’ is not impossible. Overtime Averaging Agreements are a period of time agreed to by both the employer and employee over which the number of hours worked will be averaged. This means that instead of overtime starting after 44 hours in a week, it will start when the total number of hours for the averaging period are exceeded. For example:

If the averaging period is three weeks, overtime hours will start to collect after the employee has worked 132 hours (44 hours x 3 weeks = 132 hours) in this period. This means that if an employee with this averaging agreement works 60 hours one week, 50 the next but only 20 the last week of the averaging period, they do not qualify for over hours because the total number of hours they will have worked is only 130 and does not exceed the 132 hour threshold for a three-week averaging period.

Overtime Entitlement Experts

To discuss your overtime entitlements with an experienced employment lawyer, contact KCY at LAW by calling us on (905) 639-0999 or reach us online for more info!