1. Employment Law – An Overview 1 April 20, 2012 Presented for: Professional Municipal Administrators Annual Meeting Corner Brook, NL Presented by: Jamie Martin

2. Basic Assumptions  No union 2

3. Basic Assumptions  Independent contractor or employee? 3

4. Basic Assumptions Constructive Dismissal:  Intolerable employment situation  Change in duties  Change in location  Implied terms of employment 4

5. Hiring  Human Rights Considerations 5

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7. Hiring  Terms and Conditions of Employment  Policy Manual  Benefits (sick leave, vacation leave, STD/LTD, etc.)  Internet usage  Conflict of interest  Acknowledgement of Receipt by Employee  Respectful behaviour / Harassment  Letter of Engagement 7

8. Hiring  Identify (where applicable) in letter:  Position  Salary  Benefits  Termination Provisions, if any 8

9. Restrictive Covenants  Non-solicitation  Non-competition 9

10. Duties During Employment  Occupational Health and Safety – safe workplace  WHSCC – s. 89.1:  Obligation to re-employ  Not applicable if less than 20 employees  Penalties  Human Rights 10

11. Pre-Termination Considerations  Human rights considerations  Termination for cause  Termination without cause  What is the employee’s entitlement? 11

12. Human Rights Considerations: Prohibited Grounds of Discrimination  race  colour  nationality  ethnic origin  social origin  religious creed  religion  age  disability  disfigurement  sex  sexual orientation  marital status  family status  source of income  political opinion 12 Source: Human Rights Act, 2010

13. Terminations with Potential Liability Under the Labour Standards Act and Human Rights Act, 2010  Pregnant employee  Employee currently on pregnancy or parental leave  Protected under s. 9(2) of the Human Rights Act: Where this Act protects an individual from discrimination on the basis of sex, the protection includes the protection of a female from discrimination on the basis that she is or may become pregnant.  Employee on disability leave  Mandatory Retirement 13

14. What Constitutes Just Cause?  Theft / Fraud / Dishonesty  Insolence / Insubordination  Incompetence  Lateness / Absenteeism  Conflict of Interest  Sexual Harassment 14

15. Just Cause Considerations  Employers should consider:  Circumstances surrounding alleged misconduct  Level of seriousness of alleged misconduct  Extent to which the alleged misconduct impacted upon the employment relationship Question: Is there another option, short of dismissal? 15

16. Just Cause Considerations Do you ever pay severance if you have just cause?  “it depends”  Only pay to obtain a Final Release  Make sure that it is “without prejudice”  Do not pay too much 16

17. Termination Without Cause  Statutory Entitlement (LSA notice)  Employment Contract?  Reasonable notice at common law 17

18. Termination Payments LSA Individual Termination Notice: Length of EmploymentNotice Required Less than 3 monthsNone 3 months, less than 2 years1 week 2 years or more, less than 5 years2 weeks 5 years or more, less than 10 years3 weeks 10 years or more, less than 15 years4 weeks 15 years or more6 weeks 18 Source: Labour Standards Act

19. Mass Terminations (Labour Standards Act)  S. 57 of Act  Greater than 50 employees within a 4 week period  Greater than 50, less than 200 employees – 8 weeks  Greater than 200, less than 500 employees – 12 weeks  Greater than 500 employees – 16 weeks  Does not apply in respect of employees whose contracts of service have existed for less than 1 month  Required to notify Minister 19

20. Terminations  Rule of Thumb?? 20

21. Termination Payments Reasonable Notice at Common Law:  Age  Length of Service  Salary Level  Position  Inducement  Wallace factor / Bad Faith 21

22. Termination Documents  Structuring the severance package  Drafting the termination letter  Final release 22

23. Structuring the Severance Package  For cause – no package  Without cause: 1.Employment Contract  Fixed term = no severance?  Is there a termination clause? 2. No Employment Contract  LSA entitlement  Common law (including LSA minimums) 23

24. Working Notice Considerations  Productivity  Ability to look for other work  Interviews  Outplacement  No guarantee of employment  Retention bonus 24

25. Lump Sum vs. Salary Continuation  Prospects of re-employment  Skills  Education  Age  Access to benefits  Personal circumstances 25

26. Mitigation Considerations  Definition of “alternative employment”  “Clawback” (i.e. windfall) 26

27. Structuring the Package Other issues:  Bonus/variable compensation  Benefits and pension  Perks  Car  Shares/options  Company property  Outplacement  References  Contribution to legal fees 27

28. Drafting the Letter  Identify reason for dismissal?  List what employee gets no matter what:  Wages  Vacation pay  LSA notice and severance, if any  Minimum benefits 28

29. Drafting the Letter  Set out the “offer”  Outplacement and reference (if any)  Conditional or not?  IP / confidentiality / fiduciary obligations  Return of Property  Record of Employment (ROE)  Deadline for acceptance 29

30. Drafting the Letter  Use plain language  Be gentle  Employer contact  Timing  Middle of day, middle of week  To sign, or not to sign? 30

31. Release  Is one necessary? When?  “Soft Release” option – put release language in the termination letter  Release and statutory / earned benefits 31

32. Release  What should be included?  Release of liability (LSA, HRC)  Indemnity (CRA, CPP, EI)  Specific reference to statutory claims (LSA)  No admission of liability  Confidentiality / non-disclosure  Non-disparagement  Independent Legal Advice  They won’t sign, what do I do? 32

33. Executing the Termination  Termination for Cause  Pre-meeting considerations  The termination meeting  Post-meeting considerations  Punitive/aggravated damages  References:  Confirmation of employment  Comment on performance 33

34. Things in Between: Specialized Topics  Duty to Accommodate  Social Media  Long Term Disability (LTD) 34

35. Duty to Accommodate  Undue Hardship  Mental Illness / Addiction  Child Care Obligations 35

36. Social Media  Tool for Hiring (Background checks)  Tool for Firing (Causes)  Facebook Revelations  Internet and cell phone usage 36

37. LTD – Handling Disability Claims  Human Rights Considerations  When to Terminate / End Relationship  Frustration of Contract 37

38. Conducting Workplace Investigations  Independence of Investigation  Qualified Experienced Investigator  Planned Investigation  Gathering of Evidence  Due Process to all Parties  Objective Assessment of Evidence 38

39. Conclusion When in doubt, makethecall.ca ! 39