A webinar for public librarians and community workers Trevor R. Thomas And Janet Freeman October 2015 Top 5 Employment Issues

Today’s Presenter Host Janet Freeman LawMatters Program Coordinator, Courthouse Libraries BC Trevor R. Thomas Lawyer Kent Employment Law

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Top 5 Employment Issues Trevor R. Thomas, Kent Employment Law

Top 5 Employment Issues Employment Contracts Employment Standards Act Human Rights Dismissal and Severance Employee vs. Independent Contractor

Employment Contracts General principles of contract law Terms Restrictive covenants Dismissal and severance Ambiguity Signature Fixed term

General Principles of Contract Law A contract is formed when: Offer of employment Acceptance of offer Offer, acceptance, contract can all be oral or written

Terms Duties Work location Salary and benefits Hours Overtime Confidentiality Compliance with ESA and human rights legislation

Restrictive Covenants Examples: non-competition, non-solicitation Restrict / prohibit exploitation of employer’s trade secrets, confidential information, or general business goodwill Restrict / prohibit competition with employer after employment relationship has ended

Dismissal and Severance Specify financial entitlement on dismissal Clause must: Be clear and unambiguous Comply with ESA

Ambiguity The courts will interpret any ambiguity in the contract contra proferentem, i.e. against the employer

Signature Employee must sign contract before starting work. Otherwise, the contract may be void for lack of consideration.

Fixed Term Contracts Balance of contract or early termination provision Renewal may lead to indefinite employment

Employment Standards Act Overtime Time and a half 8 hours per day 40 hours per week Double time 12 hours per day

“Work” May Include: Travel required as part of the job Time when an employee is on call at a designated location Time required to attend conferences, business meetings or training

Side agreements are not permitted - Employers cannot avoid the overtime requirements

Banking Overtime Employee may request: Employer to establish overtime bank Payment of wages in bank Time off with pay in lieu of being paid wages in bank Employer may close bank and: Pay wages to employee within 6 months; and/or Allow employee to take time off with pay

Averaging Agreements Employer and employee may agree to average employee’s hours over a period of weeks Agreement must: Be in writing Be signed by both parties before start date Specify duration Specify work schedule

Meal Breaks 30 minute meal break at least once every 5 hours Unpaid, unless employee is required to work or be available for work during the break

Split Shifts Shifts separated by a number of hours off Example: Restaurant employee begins shift at noon, works until 2pm, then has 2 hours off before being required to return for the balance of shift Must be completed within 12 hours of start

Hours Free from Work and Maximum Hours Employee entitled to: At least 32 consecutive hours free from work each week (or time and a half for time worked during the 32 hour period) 8 hours off between shifts unless required to work because of emergency Employer must not require or allow employees to work excessive hours or hours detrimental to health and safety

Statutory Holidays Employee must be employed for at least 30 days before the statutory holiday in order to receive pay. If employee required to work on statutory holiday, employee is entitled to receive time and a half for up to 12 hours, and double time for over 12 hours.

Leaves of Absence Pregnancy – 17 consecutive weeks of unpaid leave (may be entitled to additional 6 weeks for health-related reasons) Parental – 35 weeks of unpaid leave (in addition to pregnancy leave) or 37 weeks (in lieu of pregnancy leave) (an additional 5 weeks available where child has health concerns) Family – 5 days off of unpaid leave (to care for child or immediate family) Compassionate care – 8 weeks of unpaid leave (for family member if significant risk of death) Bereavement – 3 days of unpaid leave (for death of immediate family member)

Vacation Entitlement – at least 2 weeks after 12 consecutive months, and at least 3 weeks after 5 consecutive years. Vacation pay – after 5 days of employment the employee is entitled to at least 4% of total wages, and after 5 consecutive years of employment the employee is entitled to at least 6% of total wages.

Termination of Employment After 12 consecutive months = 2 weeks wages After 3 consecutive years = 3 weeks wages Up to a maximum of 8 weeks wages Employer can provide either working notice or pay in lieu of notice To be paid within 48 hours (if employer terminates employment) or within 6 days (if employees resigns)

Exclusions ESA overtime does not apply to managers, high technology professionals, teachers, live-in caregivers ESA does not apply to certain self- regulating professions such as doctors, lawyers, accountants, engineers, architects

Human Rights in the Workplace BC Human Rights Code Duty to accommodate Requests for medical information Independent medical examination Frustration Pregnancy leave Sexual harassment

BC Human Rights Code (s. 13) Race Colour Ancestry Place of origin Political belief Religion Marital status Family status Physical or mental disability Sex Sexual orientation Age Criminal conviction unrelated to employment Section 13 of the BC Human Rights Code prohibits an employer from dismissing or discriminating against an employee on the basis of:

Duty to Accommodate to the Point of Undue Hardship Test: Are the characteristics of an illness such that the proper operation of the business is hampered excessively? Is an employee with such an illness unable to work for the reasonably foreseeable future?

Employer Requests for Medical Information Employers can and should ask for all relevant information regarding the employee including: Prognosis for recovery Estimated return to work date Ability to perform job duties Capabilities to perform alternate work Requirements for accommodations at the workplace

Independent Medical Examination What if the employer and I do not agree about the severity of the illness?

Frustration Unexpected events occur, making it impossible to perform the contract. Both parties are excused from further performance of their contractual obligations.

Pregnancy Leave ESA: 17 weeks unpaid pregnancy leave 35 weeks unpaid parental leave At the end of the leave, employer must return employee to former or comparable position.

Sexual Harassment

Dismissal and Severance Constructive dismissal With cause / just cause Without cause Resignation

Employment Standards Act Statutory minimums: More than 3 months employment = 1 week notice/severance More than 1 year employment= 2 weeks notice/severance After 3 years employment, 1 week notice/severance per year 8 week maximum

Common Law Bardal v The Globe and Mail Ltd. [1960] Nature of employee’s job Length of employment Employee’s age Availability of similar employment Experience, training, qualifications

Employment Contract Clear, unambiguous severance clause which: Sets our employee’s financial entitlement upon dismissal Is in compliance with the ESA

Additional Considerations Potential bonus or benefit entitlements Vacation pay owing Claw-back provision if employee finds replacement employment quickly

Just Cause Examples of workplace misconduct: Theft Dishonesty Secretly profiting from employer Deliberate disobedience Assault Sexual harassment If an employee’s misconduct or incompetence constitutes a serious breach of the employment contract, the employer may dismiss the employee immediately, i.e. without notice or pay

Employee vs. Independent Contractor Why is this important? Legal tests: Control test Four-fold test Organizational or integration test Economic reality test Things to be aware of

Why is this important? If the worker is an employee, the Employment Standards Act will apply, including provisions regarding wages, overtime, vacation pay, statutory holiday pay and severance.

Control Test Factors Selection: Payer has the power to select the worker. Dismissal: Payer has the right to suspend or dismiss the worker. Method of work: Payer has the right to control how the job is carried out. Remuneration: Payer establishes wages or other remuneration. Whether one person is in a position to order not only what is to be done, but also how it is to be done.

Four-Fold Test Control Ownership of tools Chance of profit Risk of loss

Organizational or Integration Test Is the work integral to the operation of the business? The greater the integration, the more likely it is that the person is an employee. Example: Pizza restaurant that offers delivery.

Economic Reality Test Control Risk Financial investment Lasting relationship Diversity

Application of the Act “The intention of the parties, the existence of a contract, the method of payment, and whether or not statutory deductions are made, while perhaps illuminative of the real relationship, are not determinative. Rather, the definitions in the Act must be applied.”

Things to be aware of A contractor owns and uses her own “tools” such as business cards, computer, vehicle…or a hammer. Uniformity, for example, in the form of their clothing or workspace, are typically reserved for employees. Contractors can subcontract his responsibilities to others. A contractor has the chance of profit and risk of loss. Contractors set their own hours.

Forums for Resolving Disputes Courts Provincial Court (“Small Claims Court”) Supreme Court Specialized Tribunals Employment Standards Branch Human Rights Tribunal

Questions?

Thank You! Trevor R. Thomas Kent Employment Law T: E:

Questions about Clicklaw? Contact Janet Freeman Topic Employment results: 72 resources and 7 common legal questions

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