[vickyp]

in reply to: Answer for Question regarding interviewing #87015

No. There are no Canadian laws banning interview Qs about previous salary, wages, bonus, etc. a la some state laws in the US. But Ontario ALMOST adopted one.
In 2017 or 2018, Ontario adopted a so called pay transparency law which, among other things, banned employers from asking job applicants how much they made with previous employers and list salary ranges in publicly posted job ads. But in June, the Progressive Conservative party won the provincial elections and began peeling back the employment law reforms of its Liberal Party predecessors, including the pay transparency bill which had been slated to take effect Jan. 1, 2019. Technically, the new bill (Bill 57) doesn’t revoke but freezes the pay equity law to a date to be determined by the government. Of course, the suspicion is that the current government won’t ever set a date and that it will take another regime change to make pay transparency a reality in Ontario.
Had the pay transparency law gone through, Ontario would have been the first Canadian jurisdiction to ban interview Qs about previous salary. In other words, such Qs are legal in all parts of the country. Hope that helps. Glenn

[vickyp]

in reply to: Answer for Wage Indemnity Benefits #87014

I’m confused. In your last sentence, do you mean “weekly indemnity” or “WAGE indemnity”‘  In either case, terms of a contract are always open to interpretation when they’re not clearly defined in the agreement. The Q becomes: What did the parties intend’ To make that determination, courts and arbitrators will look at not only the contract language itself, but extrinsic materials including how you interpreted the language in actual practice. The fact that you have employees fill out short term weekly indemnity forms is evidence supporting your interpretation of the language’s pertaining only to short-term leaves. But it’s not a slam dunk, especially if you ever did apply the language to top off benefits of employees on longer term leaves.
Of course, the union may have other evidence supporting its interpretation (if the union is, in fact, arguing that the language pertains to longer leaves). If you’re currently not in a dispute with the union, you might consider proposing amending the collective agreement to add new language clarifying the meaning of the term. On the other hand, if the union hasn’t brought up the issue, bringing it to its attention could wake a sleeping volcano.
Hope that helps and sorry for the long wait. Glenn

[vickyp]

in reply to: Answer for Employer paid short term disability/ long term disability benefits #87013

In fact, there is. Alan McEwen, our payroll expert, has actually written on this very subject. Here’s what he wrote:
For employers considering short or long term disability plans there are a great many decisions to be made about plan design, funding and administration. Should benefits be insured, should employees contribute to the cost of benefits, and, if the employer is going to self-insure benefits, how will these be funded and administered’
When making these decisions, employers should know these decisions don’t just affect the employer or the disability plan itself. Each of these decisions may have specific employee impacts, in areas such source deductions, employee eligibility for EI and CPP retirement benefits and employee RRSP contributions.
The most fundamental decision employers have to make is whether the plan will qualify as an income tax Wage Loss Replacement Plan (WLRP). For example, the employer may decide simply to provide salary continuance during any claim for short-term disability. Alternatively, the employer may provide disability benefits through an Administrative Services Only (ASO) arrangement, under which there are no contributions to a fund per se, but the employer simply reimburses the 3rd party ASO for any disability benefits paid. Neither of these would qualify as a WLRP (see IT-428), so any benefits paid would be regular employment income and gross benefits would be subject to all normal source deductions.
Alternatively, the plan might qualify as a WLRP, but provide lump-sum, instead of periodic (usually monthly) benefits. The principal impact is on the timing of any taxable benefit from employer contributions to the plan. Where a WLRP provides for the payment of lump-sum benefits, employer contributions to the plan are the taxable benefit. As a consequence, lump-sum benefits themselves are free from all source deduction. By contrast, where benefits are periodic, the source deduction requirements are focused on benefit payments.
This distinction between the right to periodic versus lump-sum WLRP benefits only matters where employees contribute to the plan. Plans may be structured so employers cover all costs, the cost of WLRP coverage is split between employers and employees or employees pay all plan costs. Where plan contributions are made only by employees (‘employee pay-all’), no source deductions apply; the same as there are no source deductions on the payment of lump-sum WLRP benefits, since employer contributions are recognized as the taxable benefit.
While receiving WLRP benefits on a tax-free basis maximizes the short-term dollars in employee pockets, there may be some longer term impacts that employers and employees alike should consider. If WLRP benefits are not a taxable benefit, there are no CPP contributions or pensionable earnings while on disability. This may not be a problem for short-term disability, but if an employee remains on long-term disability for an extended period of years, tax-free WLRP benefits may mean a significant reduction in the CPP retirement pension eventually paid.
This is only a problem where employees do not also qualify for CPP disability benefits. When you qualify for these, your CPP retirement pension is based on months other than those for which CPP/QPP disability benefits were payable. If, however, a person is on WLRP benefits, but does not qualify for CPP disability benefits, CPP retirement benefits are effectively reduced for every month the person has no pensionable earnings while in receipt of tax-free WLRP benefits.
There is a similar issue with RRSP contributions. If a person is on tax-free WLRP benefits, these are not earned income for the purposes of creating RRSP contribution room. This limits the RRSP contributions which can be made while on these benefits.
An employee’s potential CPP retirement pension may also be affected by WLRP benefits provided under a contract of insurance. If WLRP benefits are provided by an insurance company acting in its own right, under the terms of an insurance policy for the WLRP, any benefits paid are not CPP pensionable. While such benefits may be taxable, if paid on a periodic basis and partly or wholly employer funded, they are not subject to CPP source deductions. The same as with tax-free WLRP benefits, this means an effective reduction in CPP retirement benefits, unless employees also qualify for CPP disability benefits.
Paying WLRP benefits on a tax-free basis may also impact employee eligibility for EI. If WLRP benefits are not subject to source deduction when paid, there are no related insurable hours. For example, an employee could return to work from short-term disability, only to be laid off for other reasons, and not have the insurable hours required to establish an EI claim.
There are two ways these impacts might be avoided. First, employers should consider savings plan options when employees receive WLRP benefits that are not CPP pensionable. Perhaps long-term disability benefits could be structured so that a portion of these are paid directly into an RRSP, if benefits are income taxable, or into a TFSA, for benefits paid on a tax-free basis. Second, perhaps the government should consider amending the Canada Pension Plan, to eliminate the distinction in CPP treatment for WLRPs, based on whether benefits are paid by the employer or a 3rd party. It’s not clear why this distinction in how WLRPs are structured should affect their treatment for source deduction purposes.
****
Hope that helps. Glenn

[vickyp]

in reply to: Answer for Losing Accrued Vacation Days #87012

Some jurisdictions permit employees to forgo taking time. Alberta is not one of them. However, the onus is on the employer to ensure that time is taken. As noted above, the only means of doing this is to subject the employee to a disciplinary process. Remove the entitlement is not an option.”

[vickyp]

in reply to: Answer for Vacation Entitlement after returning from Maternity Leave #87011

First of all, I apologize for taking so long to respond. In the future, you can email me at glennd@bongarde.com if you’ve been waiting more than 3 or 4 days (or you just need an urgent response). I will also see to your other unanswered Qs right after I finish this one.
Sec. 56(1)(a) of the BC ESA, says that “the services of an employee who is on leave under this Part . . . are deemed to be continuous for the purposes o calculating annual vacation entitlement and (termination notice) entitlement under sections 63 and 64″   
My take is that the employee in her 5th year returning from maternity leave in the middle of June would be entitled to the full 3 weeks’ vacation for the year. In other words, you can’t subtract her time on leave from her vacation entitlement.
Meantime, I’ve run your Q past our payroll guru, Alan McEwen, and will pass along his response as soon as I receive it.
Hope this helps and, again, I’m sorry for the delay. Glenn 203 354-4532.

[vickyp]

in reply to: Answer for Losing Accrued Vacation Days #87010

See below for our payroll experts answer to this question.

[vickyp]

in reply to: Answer for Code of Ethics vs Code of Conduct #87009

That’s a really good Q. I’ve always used the terms interchangeably but apparently they’re 2 different things. I found a great article on a site called Whistleblower Security that explains the differences. Rather than summarize or paraphrase, I decided to just show you the entire piece, which is a fast, easy and very informative read. Hope it helps. Glenn
Code of Ethics and Code of Conduct – What’s the Difference’
Posted by Amanda Nieweler
on July 23, 2014
What’s the difference between a code of ethics and conduct’
The terms “Code of Ethics” and “Code of Conduct” are often mistakenly used interchangeably.
They are, in fact, two unique documents. Codes of ethics, which govern decision-making, and codes of conduct, which govern actions, represent two common ways that companies self-regulate. They are often associated with large companies, and provide direction to employees and establish a public image of good behavior, both of which benefits businesses of any size.
Code of Ethics:
Sometimes referred to as a Value Statement, it behaves like the Constitution with general principles to guide behaviour; outlining a set of principles that affect decision-making. For example if an organization is committed to protecting the environment and “being green”, the Code of Ethics will state that there is an expectation for any employee faced with a problem, to choose the most “green” solution. It works on the bases of “treat others as you would like to be treated.” When faced with ethical dilemmas or debatable situations, what’s articulated in the Code of Ethics can help guide decision making.
Code of Conduct:
Provides the meat and potatoes to the Code of Ethics. A Code of Conduct applies the Code of Ethics to a host of relevant situations. A particular rule in the Code of Ethics might state that all employees will obey the law, a Code of Conduct might list several specific laws relevant to different areas of organizational operations, or industry, that employees need to obey.
The Code of Conduct outlines specific behaviours that are required or prohibited as a condition of ongoing employment. It might forbid sexual harassment, racial intimidation or viewing inappropriate or unauthorized content on company computers. Codes, along with other measures, have helped some companies dig themselves out of scandals, and have helped many companies build a healthier work climate and reputation.
Similarities:
Both a Code of Ethics and a Code of Conduct are similar as they are used in an attempt to encourage specific forms of behaviour by employees. Ethics guidelines attempt to provide guidance about values and choices to influence decision making. Conduct regulations assert that some specific actions are appropriate, others inappropriate. In both cases, the organization’s desire is to obtain a narrow range of acceptable behaviors from employees.
Differences:
With similarities, comes differences. Both are used in an attempt to regulate behavior in very different ways. Ethical standards generally are wide-ranging and non-specific, designed to provide a set of values or decision-making approaches that enable employees to make independent judgments about the most appropriate course of action. Conduct standards generally require little judgment; you obey or incur a penalty, and the code provides a fairly clear set of expectations about which actions are required, acceptable or prohibited.
Working Together:
Bigger organizations sometimes have both Codes in separate formats, or they are sometimes combined into one general Ethics document that blends principles for the right action with a list of actions that are required or forbidden.
For The Smaller Business:
Many smaller businesses can survive without a formal code of ethics or code of conduct; for example if a business has 1-10 employees, generally everyone is talking with each other and interacting with each other every day. So communicating appropriate behaviour is much easier. However, as smaller businesses grow their employee numbers, ethical hazards and risks can increase, so having these documents can help shape cultural expectations about behaviour, and they also serve as a solid marketing tool for potential business partners or clients.
Either way, whatever type of Code an organization chooses to employ, it’s critical that it is treated consistently in every instance of wrongdoing. The Code needs to apply to every employee from the ground up, and no matter how small the violation, appropriate discipline needs to take place. For example, if your Code stipulates that theft of company property is prohibited, and an employee takes home one pack of post-it-notes from the supply inventory, that’s theft, and should be treated as such.
We believe that a great Code and a strong company culture is the heart of a successful organization. We strive to help organizations build a culture of integrity, transparency, and accountability. An organization’s culture is different in all industries: we believe there’s no one-size-fits-all solution for building and adopting a strong organizational culture. But we do strive to provide all organizations with a solution that can be customized to fit the varying needs of different organizations, while helping to build and strengthen internal cultures. One step in building a successful culture is with the integration of a strong compliance program, including a whistleblower hotline. This is a powerful tool for any organization to implement in their proactive measures to ensure their business success and grow their strong culture where employees can thrive.

[vickyp]

in reply to: Answer for Ontario – our regular work week is Monday to Friday. Can we mandate a Saturday shift? #87008

There’s nothing in the Ontario ESA precluding you from making that change. The major stumbling point is the controversy and employee objections this change may engender.
And while making Saturday a work day may be okay under the ESA, there is some legal risk, namely, that employees will claim constructive dismissal to the extent this is a material and unilateral change to the terms of their employment. Constructive dismissal isn’t a bargaining tactic since employees would actually have to leave their jobs to assert it. But it leads to litigation and exposes you to the risk of liability for wrongful dismissal.
The other risk is that the change may constitute a breach of the collective agreement or employment contract of employees who are non-union.
Bottom Line: Be careful and sensitive to the backlash risks and make sure you’re contractually allowed to impose the change. Better yet, try to negotiate and secure the employees’ agreement before making it.
Hope that helps. Glenn
.

[vickyp]

in reply to: Answer for As an employer, can I terminate a new employee ( 2 months) if he does not return to work when he was supposed to? the employee missed 7 days without notifying the company. The company tried to call him but he was not answering. The company sent him a termination letter after he was off for 1 week. He then called the supervisor and mentioned that he’s been sick and when asked about informing the company, he said he did call and leave a message with front desk but front desk never received a call from him. I’m assuming he only called the supervisor after he received the termination letter. The employee is 51 years old. #87007

It depends.
If the employment is probationary, you can terminate due to lack of suitability for up to 90 days without having to get into a you-know-what contest over whether his attendance issues were just cause. But it must be clear that the employment is probationary, e.g., the contract, job offer and/or job description specifies it
If the employment isn’t probationary, what does the contract say about attendance’ What about your HR policies’ Are the rules clear’ Did he violate them’ Can you document this’
Did the employee provide a doctor’s note documenting he was sick and needed to miss 7 days–which is a lot, especially for a new employee.
The one thing you need to be careful about: Did the employee indicate he had a disability and needed accommodations’ If so, you’d need to consider the request which would involve obtaining medical information about the employee’s abilities and needs so you could make an assessment. But based on your account, it doesn’t sound like this is the case. Of course, I don’t have access to the file. So you need to cover your bases and make sure disability and accommodation requests weren’t actually issues.
I wish I could provide more specific advice but I just don’t know enuf about the situation. Hopefully, the general principles I outlined, which you should NOT confuse for legal counsel, will help. Glenn

[vickyp]

in reply to: Answer for DUI #87006

1) EMPLOYEE DUTY TO DISCLOSE: Depends on a bunch of things:

• Was the employee convicted or simply arrested’ If the latter, the employee may actually be able to prove his/her innocence.
• Impact on ability to do job: I wouldn’t be so quick to concede the fact that the DUI doesn’t have an impact. It very well might if: i. the employee’s job is safety-sensitive; ii. the employee needs to drive to do his/her job duties–the new Alberta DUI licence suspension penalties may thus render the employee unable to do the job; iii. the DUI casts doubt on his judgment, integrity or character, especially if such Qs already exist; iv. the job requires the highest standards of morality and conduct, e.g., law enforcement, public service, religious-based, etc.
• Was the employee off duty at the time of the DUI’ Clearly, the need to notify (and justification of discipline for failure to notify) is much stronger if the DUI happened while the employee was on duty
• Do your HR policies require disclosure of DUI convictions/arrests (assuming, of course, you can justify why you have such a policy)

2) ACCOMMODATIONS’ The employee would be entitled to accommodations only if his/her alcohol use is the result of an addiction or dependency that would be deemed a disability under the Human Rights Code. Casual use is NOT a disability and thus not a bar to discipline. Even if accommodations ARE required, you need only provide them to the point of undue hardship. A strong case can be made that allowing an employee with a DUI conviction to keep his/her job would be undue hardship, depending on the circumstances (discussed in the second bullet above). And to directly answer the Q, if accommodations are in order, that’s all you’d have to provide (unless I’m missing something here).
Final note: DUI, on or off duty, has potentially serious employment ramifications not just in AB but everywhere. I don’t think the new, tougher penalties (which, BTW, aren’t unique to Alberta) are all that significant–except maybe to the extent that the license suspension penalties magnify the impact on ability to perform the job for employees that drive.
Great Qs and I hope the answers help. Glenn

[vickyp]

in reply to: Answer for Average Daily Wage Calculation – #87005

The answer really depends on whether, when the person does work, the wages earned vary from period to period.
If the answer is yes, the rule is given by sub-section 57(3) – in which case you start at the termination date and work backward, looking for weeks (any 7 consecutive days ) where the person worked. Add the wages earned in each week worked and stop when you get to 13 (i.e. skip over any unworked leave). Then divide these total wages by 13 to get an average.
If the answer is no, then sub-section 57(1) applies and the termination pay owing is what the person would have earned for regular hours during the notice period.

[vickyp]

in reply to: Answer for Employee Handbook: Accepting gifts from clients #87004

I agree with your employees. In addition, declining gifts may be taken as an insult, especially when dealing with foreign clients from countries where modest gifting is part of the business culture. I’d suggest instead that you allow them subject to specific limitations following the HRI Model Gifts Policy, https://ohsinsider.com/tool-model-gifts-acceptance-policy/
As for the so called “de minimus” threshold, there is no legally required dollar. Our Model Policy uses $100, which is consistent with standards followed in many corporations. There should also be aggregate limits and bans on accepting certain types of gifts, like cash or financial instruments. Again, check out the Model Policy. Also consider whether to require employees to report the gifts they receive, even the de minimis ones. Hope that helps. Glenn

[vickyp]

in reply to: Answer for Sick leave for extended period of time #87003

The Q of how long is too long for an employee on sick or disability leave to be absent is a very common and difficult one. The reason is that whatever is keeping the employee home is likely to be deemed a “disability” under human rights laws requiring accommodation to the point of undue hardship. Holding the job open is such an accommodation. But the Q then becomes: At what point does the wait cross over from reasonable accommodation into undue hardship’

Answer: You don’t have to wait until all hope is gone. The point of undue hardship is reached if after you re-work the job to an employee’s limitations, there’s still no prospect for a return in the “reasonably foreseeable future.”
Of course, stating the rule is much easier than applying it to actual cases. Suggest you check out an HRI story that provides 2 actual case examples–one in which the accommodation was found reasonable and the other in which it was found undue hardship–to see how courts and arbitrators resolve this issue.
https://ohsinsider.com/how-long-is-long-enough-for-a-disabled-employee-to-be-absent/
HRI also has a Model Leave of Absence Policy you should check out.
Hope this helps and sorry for the delay in responding. Glenn

[vickyp]

in reply to: Answer for Alberta #87002

One more thing: I ran your Q by our payroll expert, Alan McEwen, who added the following:

The only thing you might want to consider is referencing fixed term contracts. In Alberta, as in many other jurisdictions, there is an exception around notice for employment contracts for a fixed term, in this case, in Alberta, less than 12 months. So it would be possible to offer all new hires a fixed term contract of less than 12 months. At the expiry of this period, the employee either leaves, the employment having ended (which by the way is not prejudicial to an EI claim) or the person is then offered permanent employment, including specific terms around notice.

[vickyp]

in reply to: Answer for Alberta #87001

First, I commend you for providing such thorough information. The answer is actually quite simple: Yes–90 days
Explanation: As in all jurisdictions, in Alberta, temporary or probationary employment becomes permanent after a certain period to the extent that an employee’s rights to termination notice and other benefits under the ESC vest. In AB, that period is 90 days of employment. For the first 90 days, you can terminate the employee without notice for lack of suitability, which is a far less stringent standard than the “reasonable cause” that applies to permanent employees.
Possible Exception: ESC requirements are minimum standards and employers can provide more generous terms if they want to. In this case, your company (or offer letter) may stipulate that the probationary period is less than 90 days.
Advice Going Forward: Have each temporary employee you hire on a probationary basis with the prospects of full-time employment sign a probationary employment contract stipulating that the employment IS probationary for 90 days, that lack of suitability is grounds for termination during the probationary period and that ESC rights and benefits don’t vest unless and until the employment does become permanent. Here are some excellent resources from HRI: https://ohsinsider.com/the-7-things-you-need-to-know-to-make-probationary-employment-work/       AND    https://ohsinsider.com/model-policy-on-probationary-employment/ (based on Ontario but can be easily adapted for AB)
Hope that helps. Glenn

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