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Employment Law – An Overview

April 20, 2012 Presented for: Professional Municipal Administrators Annual Meeting Corner Brook, NL Presented by:. Employment Law – An Overview. Jamie Martin. Basic Assumptions. No union. Basic Assumptions. Independent contractor or employee?. Basic Assumptions.

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Employment Law – An Overview

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

  2. Basic Assumptions • No union

  3. Basic Assumptions • Independent contractor or employee?

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

  5. Hiring • Human Rights Considerations

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

  8. Restrictive Covenants • Non-solicitation • Non-competition

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

  11. 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 Source: Human Rights Act, 2010

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

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

  17. Termination Payments LSA Individual Termination Notice: Length of EmploymentNotice Required Less than 3 months None 3 months, less than 2 years 1 week 2 years or more, less than 5 years 2 weeks 5 years or more, less than 10 years 3 weeks 10 years or more, less than 15 years 4 weeks 15 years or more 6 weeks Source: Labour Standards Act

  18. 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. Terminations • Rule of Thumb??

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

  21. Termination Documents • Structuring the severance package • Drafting the termination letter • Final release

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

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

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

  25. Mitigation Considerations • Definition of “alternative employment” • “Clawback” (i.e. windfall)

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

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

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

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

  34. Duty to Accommodate • Undue Hardship • Mental Illness / Addiction • Child Care Obligations

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

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

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

  38. Conclusion When in doubt, makethecall.ca !

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