[vickyp]

in reply to: Answer for On call policy #87030

Here’s some good stuff:
https://www.cbe.ab.ca/careers/Documents/Terms-and-Conditions-of-Employment-CBE-Exempt.pdf (scroll down to page 7)
https://www.aupe.org/media/agreements/2015-01-01_to_2017-12-31_00038739x0.PDF (scroll down to last appendix at very end)
https://www.wheatlandcounty.ca/images/edocman/policies/Section%206%20-%20PERSONNEL%20POLICIES.pdf (scroll down to page 48)
https://www.albertahealthservices.ca/assets/careers/careers-emp-terms-and-conditions-employee-handbook.pdf (scroll down to page 10)
https://www.hsaa.ca/wp-content/uploads/2018/02/COVENANT-CA-REV-FINAL.pdf (scroll down to p. 18)
GOOD STUFF BUT NOT FROM ALBERTA
https://www.uottawa.ca/administration-and-governance/policy-12-work-hours-overtime-and-additional-work-support-staff (scroll down to Secs 29-30)
https://www.solarwindsmsp.com/blog/7-steps-getting-your-call-pay-policy-right
https://www.algonquincollege.com/hr/support/call-back-on-call-pay/
https://www.uoguelph.ca/hr/node/4107/
https://www.ucalgary.ca/hr/files/hr/aupe-collective-agreement.pdf (scroll down to p. 30)
**********
Hope that helps. Glenn

[vickyp]

in reply to: Answer for Do I have to accommodate this situation? #87029

There’s a lot going on here so let’s take it one issue at a time:
1, Leave of Absence: Under Sec. 239(1)(a) of Can. Labour Code, you can’t dismiss an employee on medical leave of absence IF she had 3 months’ consecutive service before the injury. So if the accident happened within the first 90 days, the leave of absence protection doesn’t apply.
2, Accommodation of Non-Work Injury: Depends on the law involved:
A. For purposes of the Canadian Human Rights Code, what matters isn’t whether the concussion was work-related but whether it counts as a “disability.” If so, you would have to accommodate to the point of undue hardship. Whether keeping the job open until she’s fit for duty constitutes undue hardship depends on the circumstances involved, e.g., the position, how long she’ll be out, etc.
B. For purposes of the workers’ comp law of whichever jurisdiction you’re subject to (since there is no federal workers’ comp), return-to-work requirements kick in only for work-related injuries. In other words, since the concussion wasn’t work-related, workers comp RTW rules won’t apply.
Summing up, you don’t have to worry about Sick Leave (assuming she didn’t have the required 90 days’ service) or workers’ comp RTW, but you may have a duty to accommodate under human rights laws to the extent the concussion injury is a disabling one. In that case, activate your normal accommodations processes. Hope that helps. Glenn.

[vickyp]

in reply to: Answer for Cameras to monitor employees at work stations #87028

Use of video surveillance is, of course, highly privacy intrusive and allowed only in limited circumstances:

1. PURPOSE: There must be a compelling purpose for use. Security and safety are generally OK; but use of video for productivity purposes, e.g., to ensure employees are really working, is almost never permissible
2. NECESSITY: Use of video surveillance to accomplish the compelling purpose is generally OK when there are no less privacy-intrusive methods available.
3. BALANCE: The benefits of using video surveillance must outweigh the intrusion on employees’ privacy.
4. MINIMUM AMOUNT NECESSARY: The personal information that video surveillance captures must be limited to the minimum amount necessary to achieve the purpose. Cameras should be installed only in places where the problem justifying surveillance is present.
5. OVERT or COVERT’ The privacy limitations are even more intense when employees don’t know they’re being filmed–which doesn’t sound like the case in your situation. . .
6. SECURITY: Tapes should be shared only with those who need to see them and protected with safeguards, including destruction when they’re no longer needed.

Also need to ensure surveillance adheres to the terms of applicable collective agreements and your own HR policies.
To the extent surveillance use satisfies the above criteria, use of the tapes for discipline is probably OK. Example: Can discipline employees caught on tape doing something violent or dangerous but not for slacking off. . .
Here are the Ontario Privacy Commission Guidelines if you want more info. https://www.ipc.on.ca/wp-content/uploads/Resources/2015_Guidelines_Surveillance.pdf
Hope that helps. Glenn

[vickyp]

in reply to: Answer for Warehouse Temperature #87027

You’re confusing the ESA and OHS laws. Specifically, the 18°C requirement comes from the Ontario OHS Regulations for Industrial Establishments (Section 129). Yes, a warehouse IS a kind of workplace covered by the Ind. Ests. Regs. But notice that Sec. 129(2(c) of the Regs. makes an exception for warehouses and other workplaces where perishable goods are stored. I’ve pasted in the entire Section, although you’re apparently familiar with it. Bottom Line: The 18°C DOES cover your warehouse unless the workplace is used for perishables or qualifies for any of the other Section 129(2) exemptions.
Final Note: While the other OHS Regs may not specify a precise temperature (and I’ll take your word for it that they don’t), there are still requirements that employers maintain suitable thermal comfort levels and take measures to prevent cold or heat stress. Hope that helps and thanks for the interesting Q. Glenn
****
OHS, Industrial Establishments Reg., RRO 1990, Reg 851
129. (1) Subject to subsection (2), an enclosed workplace shall be at a temperature,
(a) suitable for the type of work performed; and
(b) not less than 18° Celsius.  R.R.O. 1990, Reg. 851, s. 129 (1).
(2) Clause (1) (b) does not apply to a workplace,
(a) that is normally unheated;
(b) where the necessity of opening doors makes the heating of the area to the temperature specified in clause (1) (b) impracticable;
(c) where perishable goods requiring lower temperatures are processed or stored;
(d) where radiant heating is such that a worker working in the area has the degree of comfort that would result were the area heated to the temperature specified in clause (1) (b);
(e) where the process or activity is such that the temperature specified in clause (1) (b) could cause discomfort; or
(f) during the first hour of the main operating shift where process heat provides a substantial portion of building heat.  R.R.O. 1990, Reg. 851, s. 129 (2).

[vickyp]

in reply to: Answer for Payment to Vendors #87026

Employment standards laws deal with payments to employees and don’t cover vendors. However, vendor payments may be subject to other laws, depending on the type of vendor and business arrangement involved. And, of course, payments must comply with the terms of the contract. If you can give me some more specifics about the arrangement and jurisdiction you’re in, I may be able to provide a more specific answer. Either way, I wish I hadn’t kept you waiting for 6 days. Thanks. Glenn

[vickyp]

in reply to: Answer for Employee Signing Performance Improvement Plan #87025

You can’t hold them to the terms of the Performance Improvement Plan if they deliberately refuse to sign it. But what you can do is:

1. Negotiate with the employee to secure his/her consent and signature–find out why he/she’s refusing and try to address the issue;
2. If negotiation fails, discipline and perhaps even terminate the employee for refusing to sign. This is especially true if the PIP is part of a fair and reasonable last-chance agreement giving the employee an opportunity to save his/her job.

Hope that helps. Glenn

[vickyp]

in reply to: Answer for Can the employer in a manufacturing plant prohibit speaking another language on the production floor while working and implement a policy that English is the only spoken language in the plant? Can this policy be made that while the employee is on the company premises, the only spoken language is English? #87024

I’m afraid you don’t have any real legal recourse or grounds to discipline UNLESS the employees’ refusal to speak English with English-speaking co-workers is creating an intolerable safety risk.  Thus, for example, a Spanish-speaking supervisor in charge of confined space entry would have to speak English with crew members entering the space who don’t speak Spanish.
In extreme cases, I’ve actually seen lawsuits claiming that use of native language rather than English (or other prevailing language in the workplace) is nationality discrimination. See, https://ohsinsider.com/winners-losers-is-speaking-in-a-foreign-language-nationality-discrimination-against-english-speakers/  But I don’t think you want to go down the litigation route. I think the best solution is to get everybody in the room and work things out. The workers who are complaining should explain their concerns to their co-workers and to the extent the problem is creating a safety or productivity risk, you should seek to mediate a mutually acceptable solution. Example: You can speak any language you want EXCEPT when performing X,Y, and Z function which requires everybody to use the same language–English.
Hope that helps and pls. let me know what happens. I’m sure you’re not the only one having these kinds of issues and any lessons you can share would be much appreciated. Glenn

[vickyp]

in reply to: Answer for Can the employer in a manufacturing plant prohibit speaking another language on the production floor while working and implement a policy that English is the only spoken language in the plant? Can this policy be made that while the employee is on the company premises, the only spoken language is English? #87023

The only reason I’m asking this is because of constant complaints from fellow employees about one ethnic group who keeps on speaking their own language at the work station and during breaks.  They speak their own language while working with others who can’t speak or understand that language.  There have been many complaints about this from multiple people and the company talked to these individuals about the need to be courteous when others are around and avoid speaking a different language as others are getting offended and feel that you don’t want them to understand what you’re talking about especially when you can speak English.  This talk did not seem to be very effective as we still have complaints. How would you address an issue like this without being accused of discrimination’  Can the company discipline employees if they persist on speaking a different language when others are getting offended and continue to complain?

[vickyp]

in reply to: Answer for Can the employer in a manufacturing plant prohibit speaking another language on the production floor while working and implement a policy that English is the only spoken language in the plant? Can this policy be made that while the employee is on the company premises, the only spoken language is English? #87022

Probably not but it depends on why you’re implementing the policy. Explanation: Requiring or banning a particular language to be spoken in the workplace is a form of ethnicity/nationality discrimination banned by human rights laws. However, otherwise discriminatory policies are justifiable if you can show that they’re a bona fide occupational requirement (BFOR). Example: Requiring a job applicant to speak unaccented English is discriminatory on its face. However, it might be OK for a public facing receptionist. More obvious example: Refusing to hire a job applicant because he/she’s visually impaired is disability discrimination unless the job is driver or other position for which sight is a BFOR.
Keep in mind that proving a BFOR is extremely difficult. To do it, you must show: 1. The policy serves a compelling, non-discriminatory purpose like safety’ 2. You adopted the policy in the good faith belief that it was necessary to accomplish that purpose. And, most difficult of all, 3. That the policy really is necessary to accomplish that purpose and there are no less discriminatory alternatives available.
So look at your situation and determine whether you meet all 3 of the BFOR requirements, which is hard to do.  WHY are you requiring English only’ Is there some compelling safety reason’ Is the English-only policy necessary to achieve that safety objective’ And are there alternatives that wouldn’t take away an employee’s language rights’
If you want to provide me more info about your situation, I’ll be happy to follow up and help you do the BFOR assessment. Glenn   glennd@bongarde.com

[vickyp]

in reply to: Answer for Former employee #87021

This is a tricky one. More often than not, the situation is reversed and it’s the ex-employee concerned about being bad mouthed by the employer.
First choice: Settle things with ex directly and amicably. Get him on the phone and talk it out. Explain the harm he’s causing and seek a mutually satisfactory resolution. Based on your description, this relationship sounds pretty bad and reaching an amicable resolution is a long shot. But you should still try it if at all possible. AND KEEP PRECISE AND THOROUGH DOCUMENTATION OF THE DISCUSSION.
Second choice: Explore your legal options. Going to court is the nuclear option but if the amicable route doesn’t work out, you need to consider it. I can think of 2 potential legal grounds for suing the ex:

1. Breach of contract: Does the ex have an anti-disparagement clause in his contract–or any other post-termination provisions that his conduct may be violating’
2. Defamation: Does the ex’s bad mouthing rise to the level of defamation’ Yes if: i. He’s making the statements publicly–which includes Facebook, blogs, internet;  ii. The stuff he’s saying is untrue and made with intent to harm; and iii. The statements are causing harm. .

Of course, you’ll also need to talk to a lawyer–especially if you’re thinking about going the litigation route. Good luck and I hope this helps. Glenn

[vickyp]

in reply to: Answer for Can Employer Search Employee Lockers, Handbags, Personal Possessions? #87020

Generally speaking, workplace searches of employee lockers, bags and other searches would be subject to the same principles that apply to drug testing under the Supreme Court Irving Pulp ruling.
First, RANDOM searches are highly problematic and not allowed unless: 1. the workplace and workers searched are safety-sensitive; and 2. you can demonstrate that there’s an actual–not just theoretical–drug problem causing safety issues at the site, e.g., via records showing a large number of accidents and injuries caused by drug impaired workers at the site
FOR-CAUSE searches would be easier to justify. You’d still need a safety-sensitive workplace. Ideally, you’d limit searches to safety-sensitive personnel although it sounds like you might not be able to identify which employees the things you’re searching belong to. The for-cause policy also needs to set out triggers that are specific and compelling–I think the smell of pot would definitely qualify. You’d also need to implement the policy fairly and not abuse it by searching anyone and anything.
Last but not least, you’d need a clear policy that:

1. Notifies employees of your right to conduct such searches;
2. States that employees have limited privacy expectations with regard to those possessions at the workplace;
3. Explains the reasons for the policy

Bottom line: Avoid random searches unless you’re sure you satisfy the above Irving conditions–recognizing that almost no employer ever does, at least based on the post-Irving cases. If you don’t believe me, just ask Suncor. They thought they had a solid case for random testing of oil sands workers at sites with over 1,500 drug-related safety incidents but the Alberta court still shot the policy down.
Hope that helps and feel free to follow up if u have any further Qs. Glenn

[vickyp]

in reply to: Answer for average planned salary increase in Canada and in Ontario for 2019 #87019

Pretty modest increases expected.
NATIONAL:

1. Aon 2018/19 Salary Planning Report: Based on responses from 365 Canadian companies, projected base pay will rise by 2.8 per cent in 2019, compared to the 2018 actual average total salary increase of 2.7 per cent, including salary freezes and pay cutes. Only 0.3 per cent of organizations said they expect to impose a salary freeze next year, compared to two per cent that reported a freeze in 2018.
2. Morneau Shepell’s annual survey of Trends in Human Resources: Employers in Canada are expecting salaries to rise by an average of 2.6 per cent in 2019. This is consistent with the actual 2.6 per cent average increase in 2018. The national forecast for salary budget increases for 2019 includes expected salary freezes, with 4.6 per cent of respondents expecting a zero salary budget for 2019.
3. The Conference Board of Canada’s Compensation Planning Outlook 2019:  Average pay increase for non-unionized Canadian employees is projected to be 2.6 per cent in 2019, up slightly from the 2.4 per cent average increase of 2018

ONTARIO

1. Morneau Shepell’s annual survey of Trends in Human Resources: Ontario employers expect 2.5 per cent increase in 2019

Hope that helps and sorry I couldn’t find more sources for Ontario. Glenn

[vickyp]

in reply to: Answer for Salary increase while on medical leave #87018

Under Sec. 79.4 of the Quebec Labour Standards Act, the salary increase would have to cover the full year, including the 4 months he was away on leave. Here’s the language (I boldfaced the key part)
79.4. At the end of the period of absence, the employer shall reinstate the employee in the employee’s former position with the same benefits, including the wages to which the employee would have been entitled had the employee remained at work. If the position held by the employee no longer exists when the employee returns to work, the employer shall recognize all the rights and privileges to which the employee would have been entitled if the employee had been at work at the time the position ceased to exist.
Hope that helps and sorry it took me a week to get back to you. Glenn

[vickyp]

in reply to: Answer for Scent Free Obligations for Employers #87017

You can set up the Policy any way you want but in most cases, the Scent-Free Policy aims to restrict USE OF products with fragrances rather than “hardware” like furnishings and building structures. Typically includes ban on:

1. Use of personal care products such as cologne, perfume, aftershave lotions, scented lotions, fragranced hair products and/or similar products in company facilities including company owned vehicles.
2. Use of air fresheners and candles in company facilities including company owned vehicles.
3. Use of cleaning products other than those purchased by company or building management for cleaning personal workspaces.

Hope this helps. Glenn

[vickyp]

in reply to: Answer for Vacation Entitlement after returning from Maternity Leave #87016

This is the follow-up to my above response, which is true as far as a promise to provide so many vacation days but doesn’t address the situation where the entitlement to vacation pay is based on the vacationable earnings paid. As Alan advises me, your Q is actually far more complex to the extent it depends on the vacation promise made. Was this promise so many paid days off as vacation or was the promise vacation pay at such and such a percentage’ If the promise was paid days off, was the entitlement to this restricted to active employment’ Each of these are different scenarios

1. If the vacation promise is paid time off, and the entitlement to this is not restricted to active employment, then the full 3 weeks must be provided.
2. If the promise is paid days, but the entitlement is restricted to active employment, the resulting paid vacation can’t be any less than the required provincial minimum.
3. If the promise is vacation pay, then this is based on the vacationable earnings in the applicable vacation year. The person may still qualify for 3 weeks, but the only dollars owing will be those base on vacationable earnings, if there are any.

Thank you for your patience and I hope we eventually got u a satisfactory answer. Glenn

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