Category: Employee Policies (Including Sexual Harassment Policies)

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Employee Policies (Including Sexual Harassment Policies) Employment Law

Privacy Commissioner Seeks Amendments to Proposed Electronic Monitoring Legislation

In a letter addressed to the Standing Committee on Social Policy Chair, Ontario’s Privacy Commissioner called on the provincial government to amend Bill 88, the Working for Workers Act, 2022.

Bill 88 The Working for Workers Act, 2022 – Electronic Monitoring Policies

On February 24, 2022, the Ontario government introduced Bill 88 The Working for Workers Act, 2022 (“Bill 88”). Bill 88 proposes a number of amendments to existing employment legislation, including the requirement for prescribed employers to develop electronic monitoring policies as follows:

  • Ontario’s Employment Standards Act, 2000 (the “ESA”) will be amended to require Ontario employers with 25 or more employees to create an internal electronic monitoring policy, setting out whether the employer electronically monitors employees and, if so, i) a description of how and in what circumstances the employer may electronically monitor employees and ii) the purposes for which information obtained through electronic monitoring may be used by the employer.
  • The policy would also have to explain the purposes for which an employer may use information that it collects through electronic monitoring.
  • Employees would have a right to be provided with a copy of the policy and could complain to the Minister of Labour, Training and Skills Development if their employer failed to provide it to them.

If passed, Ontario will become the first province to require employers to create a policy pertaining to the electronic monitoring of employees.

The current draft of Bill 88 does not define “electronic monitoring”, though the government has indicated in press releases that electronic monitoring may include tracking employee location or activities through various devices, such as computers, cell phones and GPS systems. 

The proposed amendments specify that they do not “affect or limit an employer’s ability to use information obtained through electronic monitoring of its employees”.

Current limitations of Bill 88

According to Patricia Kosseim in her letter to the Standing Committee on Public Safety and Correctional Services, requiring some employers to have and provide copies of their electronic monitoring policies is a good first step to better inform Ontarians about their employers’ monitoring practices as their workplaces become more remote and hybrid. However, as drafted in its current form, Bill 88 has significant limitations. These limitations include:

  • Employees who complain to the Minister on grounds that they did not receive a copy of their employer’s electronic monitoring policy, cannot have their complaint investigated. Employees cannot file a complaint about the contents of the policy or their employer’s non-compliance with the policy.
  • Nothing in the bill would restrict an employer’s ability to use, for any purpose whatsoever, the information collected through this monitoring, and the bill does not provide workers with any protections from overly invasive or unreasonable electronic surveillance by their employers.

In the longer term, argues the Privacy Commissioner, electronic workplace monitoring should be governed by a more comprehensive Ontario privacy law, similar to the one proposed last year in the government’s white paper on Modernizing Privacy in Ontario: Empowering Ontarians and Enabling a Digital Ontario, and similar to existing privacy laws in British Columbia, Alberta and Quebec that already extend privacy protection to employees. Such a law should set out the minimum requirements of employer privacy policies as well as their limits, establish a complaint and investigation mechanism for non-compliance with such policies, and allow employees to seek meaningful redress if they are affected by breaches of those policies.

Until then, says the Privacy Commissioner, “even if Bill 88 does not yet have strong teeth, it should at least be given better eyes, ears, and voice.”

Employers should be required to provide copies of electronic monitoring policies to the Privacy Commissioner

According to the Privacy Commissioner, employers should be required to furnish their office with a copy of their electronic monitoring policies to ensure transparency and protection of the employees’ privacy. As Bill 88 already requires employers to have and retain an electronic monitoring policy, the Privacy Officer submits that requiring employers to submit the policy to their office “would create minimal extra burden” and “this small incremental measure could significantly enhance organizations’ levels of transparency and accountability.” As an independent Officer of the Legislature, the Privacy Commissioner argues that Bill 88 should enable it to examine the policies it receives, identify emerging trends, provide education and best practices, and report to the legislature from time to time on matters relating to the state of privacy and electronic monitoring of Ontario workers. This proposed amendment would lead to a body of knowledge that could help Ontarians, employers, and lawmakers choose a wise path forward amid new technological possibilities and evolving work arrangements.

As the letter specifically states:

At the very least, Bill 88 should make it clear that no other provision of law, contract, or condition of employment may prevent employers and employees covered by the law from sharing, discussing, or consulting on the contents of electronic monitoring policies with my office. Moreover, the bill should explicitly provide that my office may use any general information it receives about electronic monitoring policies for the purpose of reporting to the legislature from time to time. Otherwise, a law meant to bring electronic workplace surveillance practices to light could be frustrated by countervailing attempts to keep them secret.

Baker & Company will continue to monitor Bill 88 as it moves through the legislative process. We will update with respect to important amendments and will continue to advise employers as to what they need to know with respect to electronic monitoring policies.

Contact the employment lawyers at Baker & Company in Toronto for assistance with Electronic Monitoring Policies

Baker & Company regularly works with employers in drafting and reviewing employee workplace policies and manuals. It is vital that these documents be kept up to date to ensure that they comply with all relevant legislation and that an employer’s obligations have been satisfied while also mitigating an employer’s liability and risk. To speak with a lawyer about a workplace policy or an employment law issue contact us online or by phone at 416-777-0100.

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Employee Policies (Including Sexual Harassment Policies) Employment Law

Vacation Time: Employee Rights and Obligations

Now that the end of the year is within sight, many employees across the province are examining the vacation time they have remaining in 2019 and making plans to use it before the end of the year. Given that many people have getaways on the mind leading up to and during the holiday season, it’s an opportune time to provide an overview of vacation entitlement in Ontario.

How Much Time Are Employees Entitled To Each Year?

Under provincial employment legislation, set out in the Ontario Employment Standards Act (ESA), employees have minimum entitlement with respect to both vacation time and vacation pay. It is important to note that some occupations and professions are excluded from coverage under the ESA, including:

  • Secondary school and post-secondary students working in co-operative programs authorized by their school board or school;
  • Police officers (with the exception of  lie detector sections in Part XVI of the ESA;
  • Politicians, judges, religious officials or elected trade union officials; and
  • Employees whose jobs are regulated by federal employment laws and standards.

The majority of employees in Ontario will be entitled to the minimums set out in the ESA, which states that employees with less than five years of service are entitled to two weeks of vacation time for each 12-month period of employment (otherwise referred to as an entitlement year). For any period of employment before the start of a full entitlement year (called the “stub period”), the vacation time earned during that period will be pro-rated. For example, if an employee were to begin work with an employer six months before the end of the entitlement year, they would be entitled to one week of vacation time during that period. Employees with over five years of service are entitled to three weeks’ vacation per entitlement year.

Of course, there is nothing stopping employers from going above and beyond the minimums set out in the ESA. So long as the minimums are being met, employers are free to offer additional vacation time as an enticement to attract prospective employees or as a reward for long-time or more senior employees.

Vacation Pay Entitlements

Rather than providing employees with vacation time, employers may instead provide vacation pay. This is especially common in part-time and contract or temporary roles. In this case, the ESA sets the minimum vacation pay requirements as follows:

Vacation pay must be at least four per cent of the gross wages (excluding any vacation pay) earned in the 12-month vacation entitlement year or stub period (where that applies) for employees with less than five years of employment. Employees with five or more years of employment at the end of a 12-month vacation entitlement year or stub period (if any) are entitled to at least six per cent of the gross wages earned in the 12-month vacation entitlement year or stub period.

Unused Vacation Time

Many employees will find that their employers will begin to send out reminders about unused vacation time as early as midway through the year. This is because of the obligation on employers to provide vacation pay in lieu of unused vacation days. Therefore, any unused days within the year must instead be paid out, which in turn affects the employer’s annual budget, particularly in large organizations where unused days can add up to a significant sum.

In the alternative, employers may allow employees to carry unused days forward to the following year, increasing the number of days the employee can take the next year. Some employers will allow for this, while others will not. The reason for this is likely for the benefit of the employees, despite the fact that some employees may find this frustrating. Many employers believe that employees derive a significant benefit from taking time off each year, and do not want their employees to hoard vacation time at the expense of their own well-being.

Employers also have a third option available to them with respect to employees who are not using their full vacation entitlement. Rather than paying them for the time or allowing a rollover, employers are also permitted under the ESA to schedule vacation time on behalf of an employee who has not used all of their days. New or prospective employees should be sure to check their employer’s vacation policies to see how vacation is handled beyond the minimum ESA standards so that they can plan accordingly.

At Baker & Company, we take the time to meet with you and understand your unique needs in order to offer solutions to the diverse problems you may encounter in the workplace. The highly skilled Toronto employment lawyers at Baker & Company can review your employment policies and/or contracts and ensure that you are meeting your legal obligations while addressing and mitigating risk. Protect yourself, your workplace, and your employees. We rely on our broad base of experience and expertise to provide clear, pragmatic legal advice, and representation in litigation.  Call us at 416-777-0100 or contact us online for a consultation.

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Employee Policies (Including Sexual Harassment Policies) Employment Law

Prospective Employee Awarded $120,000

In a previous post, we discussed various employer obligations to prospective employees with respect to human rights considerations. Not long after, the Human Rights Tribunal of Ontario issued a precedent-setting decision that found an employer in violation of the Ontario Human Rights Code (the “Code“) with respect to its hiring practices and ordered a hefty damages award in favour of the applicant.

Background of the Case

The applicant was a mechanical engineering student at McGill University in Montreal who applied for a position with the respondent Imperial Oil Company. He was an international student with a visa that granted him the right to work on-campus during the academic year and on breaks between terms. Upon graduating, he was eligible for a post-graduate work permit (PGWP) that would allow him to obtain full-time employment anywhere in Canada for a period of three years. He expected that he would be able to obtain permanent residency status within the three-year period, allowing him to settle down in Canada indefinitely.

He applied for a role as a Project Engineer with Imperial Oil. He had learned from his peers that Imperial Oil required non-citizen applicants to have already obtained permanent residency status in Canada in order to be considered for a role. As a result, he provided false answers throughout the interview process whenever he was questioned about his eligibility to obtain permanent, full-time work in Canada.

The applicant was the top choice for the role and was offered the job on the condition that he provide evidence of his ability to work in Canada on a permanent basis, such as a birth certificate, citizenship card or evidence of permanent residency. He was unable to do so, and so the offer was rescinded.

He received a letter stating that should he become eligible for permanent work in Canada, he should reapply to the company. The applicant commenced a proceeding before the HRTO claiming Imperial Oil had discriminated against him on the basis of citizenship.

Discrimination Based on Citizenship

Before the HRTO, the applicant set out the fact that he was eligible to work in Canada at the time the offer was made, and that he expected to be able to work indefinitely after being granted permanent residency status. He felt that he would have become a permanent resident prior to the expiration of the PGWP visa, so he would have been able to continue working for Imperial Oil uninterrupted. He brought in an expert witness to testify to the likelihood and reasonableness of this plan.

Imperial Oil raised three defences to the claim of citizenship discrimination; specifically:

  1. The applicant had demonstrated dishonesty throughout the application and interview process;
  2. The company did not discriminate based on citizenship, as it welcomed employees with permanent residency status. If there was discrimination, it was on the basis of immigration status, which was not a protected ground under the Code; and
  3. It is reasonable for an employer to require the ability to work in Canda indefinitely due to the significant investment a new employee requires.

The HRTO disagreed with point two above, finding that discrimination based on immigration status was tantamount to discrimination based on citizenship. Distinguishing potential candidates based on their eligibility to work permanently in Canada was a direct violation of the Code. Further, the tribunal held that permanent residency was not an essential requirement to perform the role in question.

With respect to the applicant’s dishonesty during the interview process, the HRTO held that were it not for Imperial Oil’s discriminatory policies, the applicant would have had no reason to lie.

Pending any judicial review, this case has a significant impact on any employer who has used immigration or citizenship status as a basis for selecting or ranking job candidates. Any employer who has done so in the past would be advised to reconsider and make changes to its policies. It is still wise to enquire about a candidate’s legal entitlement to work in Canada at the time of hiring, however inquiries beyond that point run the risk of violating the candidate’s human rights under the Code.

At Baker & Company, we take the time to meet with you and understand your unique needs in order to offer solutions to the diverse problems you may encounter in the workplace. The highly skilled Toronto employment lawyers at Baker & Company can review your employment policies and ensure that you are meeting your legal obligations while addressing and mitigating risk. Protect yourself, your workplace, and your employees. We rely on our broad base of experience and expertise to provide clear, pragmatic legal advice, and representation in litigation.  Call us at 416-777-0100 or contact us online for a consultation.

Categories
Employee Policies (Including Sexual Harassment Policies) Employment Law

Human Rights Considerations for Employers in the Hiring Process

Employers are aware that there are several human rights issues that must be considered and accommodated with respect to their employees. Failure to ensure that employees have a safe and hospitable working environment with respect to issues such as disability, advanced age or religious beliefs, for example, may justify a valid human rights complaint requiring remedial action from the Human Rights Tribunal of Ontario. However, employers may not be aware that they have an equal responsibility to respect the rights of prospective employees when interviewing and considering candidates for roles within the company. Below, we will provide an overview of the human rights of job applicants that employers must protect during the interview and hiring process, and conversely, the accommodations and rights that potential employees should expect when interviewing for a position with a new employer.

Protected Grounds Under the Ontario Human Rights Code

First, it’s helpful to review the various grounds that the Ontario Human Rights Code (the “Code”) is designed to protect. Under the Code, it is illegal for an employer (or potential employer) to discriminate against any person on the following grounds:

  • Age
  • Creed
  • Gender expression or gender identity
  • Disability
  • Family or marital status
  • Race and related grounds
  • Receipt of public assistance
  • Record of offences
  • Sex (including pregnancy)
  • Sexual orientation

Ensure a Fair Hiring Process

The Ontario Human Rights Commission provides guidelines for employers to ensure that the hiring process is as fair as possible for all applicants:

  • First and foremost, ensure that the process is consistent across the board for all employees, and be as objective as possible in the assessment of each candidate.
  • In-person interviews should be conducted with a panel of interviewers in an effort to account for individual biases, and the panel should ideally be comprised of diverse representatives of the company.
  • The same questions should be posed to each candidate. Employers should have a set of ‘ideal’ answers created in advance so that each applicant’s responses can be gauged in comparison.
  • If tests form part of the hiring process, ensure that the test is administered in the same way for each candidate. Further, all tests should be scored based on the same objective criteria.

Provide Necessary Accommodations for all Interviews

All employers are required to provide accommodations for any of the enumerated grounds listed above for any job applicant who requests them. The principles of accommodation are the same whether dealing with existing or potential employees. As described by the Ontario Human Rights Commission:

The most appropriate accommodation must be identified and implemented short of undue hardship. … An accommodation will be considered appropriate if it will result in equal opportunity to attain the same level of performance or to enjoy the same level of benefits and privileges experienced by others, or if it is proposed or adopted to achieve opportunity and meets the individual’s needs related to the relevant Code ground.

A candidate in need of accommodation is responsible for making a potential employer aware of their requirements and providing sufficient detail so that appropriate accommodation can be made.

Ensure Interview Questions Are in Compliance with the Code

Employers should be careful to make certain that interview questions are designed to obtain information specifically related to a candidate’s qualifications and factors needed to make an appropriate hiring decision. Employers are prohibited from asking questions relating to the grounds enumerated in the Code, with limited exceptions, including:

  • An employer may ask questions related to Code grounds to assess the applicant’s eligibility for a special program under section 14 of the Code. If the program is designed for people to whom certain enumerated grounds apply, it is okay to ask about them, as long as employers are clear with applicants about the reasons for asking.
  • Certain exemptions are allowed under s. 24 of the Code if requirements of the job necessitate hiring based on one or more enumerated ground. Compliance demands that the requirement is reasonable and bona fide based on the nature of the job.
  • Employers can expand the scope of questions asked if necessary, to determine the applicant’s ability to perform the duties of the job. For example, it is permissible to mention that a job requires heavy lifting in order to determine if the applicant would be capable of performing such a task. If an applicant raises the question of a potential accommodation on the job, it is permissible to discuss it. If not, discussions about accommodations must wait until a conditional offer of employment has been made.

Make Non-Discriminatory Hiring Decisions

Employers should ensure that only job-specific information is considered when making hiring decisions. If an applicant volunteered information about one of the enumerated grounds during the interview process, that information should not be considered unless one of the above exceptions applies.

An employer should be able to cite a non-discriminatory reason for each unsuccessful candidate. Avoid providing vague reasons to unsuccessful interviewees, as the candidate may interpret potential discrimination as the basis for the decision. For example, saying a candidate was not a ‘good fit’ for the company could be interpreted as being related to a candidate’s race, disability or religion. A candidate told they ‘lack long-term career potential’ or are ‘overqualified’ for a role may view the actual reason to be ageism.

As a best practice, employers should retain records from the interview process for at least six months if no complaint about the process is made, and if a human rights claim is made, records should be retained until the claim is resolved in court or before the Human Rights Tribunal.

At Baker & Company, we take the time to meet with you and understand your unique needs in order to offer solutions to the diverse problems you may encounter in the workplace. The highly skilled Toronto employment lawyers at Baker & Company can review your employment policies and ensure that you are meeting your legal obligations while addressing and mitigating risk. Protect yourself, your workplace, and your employees. We rely on our broad base of experience and expertise to provide clear, pragmatic legal advice, and representation in litigation.  Call us at 416-777-0100 or contact us online for a consultation.