Archive for November, 2009

Stopping the exploitation of foreign workers

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com

The system for recruiting and employing immigrant workers in Canada can be a useful tool for employers looking to address needs that may not be easy to fill with homegrown workers, as well as immigrants looking to start a new life here or find work to support family at home.

Unfortunately, the system has been too easy to abuse for those looking to exploit immigrants who might not understand their rights or don’t have much of a choice. This has been particularly true for immigrants coming to Canada to work as nannies.

Pressure to do something about the exploitation of immigrant workers began to build after The Toronto Star revealed that a year-long investigation into the federal Live-in Caregivers Program was frequently abused by recruiters. Job-placement firms were recruiting nannies overseas with promises of jobs waiting for them in Canada and charging them thousands of dollars before the workers even arrived in the country. In many cases, there was no job once the workers set foot here.

Unscrupulous practices such as this were further exposed in the recent decision in Ontario small claims court that found Marivic Perlas Rivera, a 29-year-old citizen of the Philippines, had been taken advantage of by Toronto-based Winlorfey Caregiver Providers. Rivera paid $2,800 to Winlorfey after the company promised to set her up with a job as a live-in caregiver in Toronto. However, Rivera wasn’t able to reach the employer with the phone number Winlorfey gave her and, once she arrived in Toronto, the owner of Winlorfey, Winston James, told her the employer wasn’t ready to hire her. James suggested other jobs that would require her to work illegally or for below minimum wage.

The court awarded Rivera the maximum award of $10,000, which may be the first case of a nanny successfully suing an agency for its shady recruiting practices. Now, the Ontario government has introduced a bill that will help protect immigrants coming here to work as nannies. If the Ontario law, which prohibits agencies from charging recruitment and placement fees, is passed as expected, foreign workers, at least the large segment in the caregiving sector, will have more protection of their rights.

While foreign workers are getting more protection through legislation and the courts, will employers recruiting and hiring them benefit from these types of changes or will it make things more difficult for them?

Employers who work on the up-and-up will benefit from a level playing field and fair competition for good workers and society as whole will be better off with more obstacles in the way of those who would exploit and marginalize newcomers to Canada. Contented workers who are treated well do a better job and contribute more to the economy than exploited ones, not to mention our moral obligation of protecting human rights.

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a biweekly newsletter that looks at employment law from a business perspective. For more information, visit www.employmentlawtoday.com.

What are your thoughts? Join the conversation by adding a comment.

Holiday celebrations: Much to lose from booze

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

The holidays are approaching once again and, while the actual holidays aren’t until the end of December, the season of parties and celebration is beginning now. Many employers acknowledge the season by holding parties for employees to celebrate the season and year-end.

Work parties can take various forms — a friendly gathering in the office, departments going out for lunch together or a more formal event at a facility outside the workplace. While the intention of these festive occasions is for everyone to enjoy themselves, there’s no doubt employers have to be careful.

I discussed the level of liability employers have for the actions of employees while working or using the employer’s equipment in a previous blog, but what about after hours when the employee is on her own? Normally, what an employee does on her own time isn’t of consequence, but this changes if the employee has had some drinks at an employer-thrown party.

If alcohol is served at a work party, it makes sense the employer, as the organizer, should have some responsibility towards the guests. That comes with territory when serving alcohol at events. Licensed establishments such as bars have a responsibility to cut off patrons who’ve had too much to drink and prevent them from driving, if possible. Employers hosting a party with alcohol have the same responsibility, not just to protect the public, but as part of their duty of care to ensure the safety of employees in the workplace and, by extension, work-related functions.

However, it seems that duty extends outside of the party and beyond the parking lot, as a well-known case Ontario case from 2002 demonstrates. Linda Hunt, an employee of Sutton Group Realty, left a Sutton Group holiday party that had an open bar. She left the party and drove to a pub where she and other employees continued drinking. She then drove home from the pub while intoxicated and was seriously hurt in an accident.

Hunt successfully sued Sutton Group, as the court found the employer should have done more to protect her from driving drunk because of its duty of care to keep its employees safe. What should be chilling to employers about this case is that Sutton Group seemed to be held at least partly responsible for the employee’s continued drinking at a private establishment after the party. She was clearly drunk after she left the pub, but how drunk was she when she left the party?

Sutton Group left itself open to liability by allowing its employee to drive to a party with an open bar and then letting get behind the wheel.  But what if it paid for a taxi to drive her home and then she drove to the pub later? Would it still be liable because she was intoxicated on alcohol it served her? What if an employee committed an offence at another location after the party, such as sexual assault, while drunk on alcohol served at a work party?

Serving alcohol does open up certain responsibilities and liabilities, which are further complicated by the duty of care that comes from the employer/employee relationship. As the holiday party season kicks in, it might be the safest to avoid alcohol altogether at company functions, even if it might seem to go against popular opinion.

Jeffrey R. Smith is the editor of Canadian Employment Law Today. For more information, visit http://www.employmentlawtoday.com.

What are your thoughts about alcohol and employer-sponsored holiday parties? Join the conversation by adding a comment.

Temporary layoffs: Don’t believe the legislation

Employment standards legislation makes allowances for temporary layoffs of non-union employees but common law sets a higher bar

 By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

Temporary layoffs are often discussed in a tough economy as businesses look for ways to cut costs. In many industries that are seasonal in nature or where business moves in cycles, layoffs are recognized as a normal part of the business.

In unionized environments, collective agreements usually set out the terms for temporary layoffs. In non-unionized workplaces, employers may look at employment standards legislation that spells out the standards for temporary layoffs as a green light to implement them. However, many of them would be wrong.

Employment standards legislation across Canada sets out requirements for employers to temporarily lay off employees without terminating their employment. For example, the Ontario Employment Standards Act, 2000, permits a temporary layoff of up to 13 weeks in a period of 20 weeks, and up to 35 weeks in a period of 52 consecutive weeks. Anything beyond that would constitute a termination and require reasonable notice and severance pay.

An employer looking to cut costs to get through some hard times could look at this and start planning temporary layoffs without worry, right? But the reality is that laying off employees could result in constructive dismissal unless the employment contract or the nature of the job contemplates layoffs. If an employer can’t prove layoffs can be expected as part of the job, a temporary layoff will most likely result in a unilateral and fundamental breach and repudiation of the employment contract.

Two years ago, a dental practice in Hope, B.C., was struggling a little bit around the time one of its receptionists was ready to come back after being off recovering from an operation. The dentist couldn’t afford to have her back right away and felt he would be in better position to pay her in a few months. He checked the province’s employment standards legislation, saw the allowance for temporary layoff, and informed the receptionist she would be laid off for just under 13 weeks.

Unfortunately for the dentist, there had been no previous layoffs and nothing in the receptionist’s employment contract that allowed for a layoff. After being contacted by the receptionist’s lawyer, he realized the situation and quickly offered her immediate reinstatement. The matter went to the B.C. Supreme Court, however, which found the dentist liable for compensation from the time of the receptionist’s layoff.

Back in 1997, the Ontario Court of Appeal found an employer guilty of constructive dismissal when it gave an employee a notice of layoff that said the employee would be terminated if the layoff exceeded the 35 weeks stipulated in the Employment Standards Act, 2000. However, even though the employer intended to bring the employee back before then, this was not expressly stated in the notice, which made the layoff indefinite instead of temporary. This was compounded by the fact the employer did not have a past practice of laying off employees.

So, when employers look at temporarily laying off employees as belt-tightening solution during lean times, it might not be as simple or affordable as they might think. Just because legislation says they can do it doesn’t mean the courts will agree. Without the proper precautions, constructive and wrongful dismissal damages might make temporary layoffs less attractive as a cost-saving measure, which could frustrate employers who think they’re doing the right thing by abiding by the legislation. Are courts being unfair to struggling employers by going beyond the scope of employment standards legislation with regard to temporary layoffs?

What do you think? Join the conversation by adding a comment.

Going down the hands-free road

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

On Oct. 26, Ontario drivers were asked to hang up their phones while driving. New legislation outlawed what had become an everyday activity for many people: using handheld electronic devices while driving. The devices banned include cellphones, personal music players like iPods and even global positioning devices (GPS), unless they are attached to the vehicle and don’t require the driver to hold them in their hands.

The ban has significance for employers in a couple of ways. Employees who drive as part of their job, whether in a company vehicle or their own, often have to communicate with the office or customers while on the road. While there are some exemptions to the ban (commercial transportation tracking systems, for example, are exempt), employees will now have to either pull over or get a hands-free device if they need to check in at work.

It’s also become pretty common, with the prevalence of BlackBerrys and other such devices for work purposes, for employees to check email and perform other work-related tasks when they’re away from work, including while behind the wheel. If employees are caught operating these devices while driving, they’re now breaking the law, and if it’s work-related, the employer could potentially get pulled into the mess as well.

Employers can protect themselves from liability through policies reflecting the prohibition and perhaps, where employees are supplied with devices, making sure they have wireless options. However, old habits can die hard, as evidenced by Ontario’s three-month grace period before it actually starts fining people.

While many will obey the new law, others may disagree with it, not take it seriously, or just plain forget. If this is the case, can the employer still be implicated in the employee’s actions? If an employee is talking or texting on his BlackBerry with the office and gets in an accident or pulled over, who’s at fault? What if the employer has a policy and has instructed the employee to follow the law, but isn’t aware the employee isn’t complying?

Employers across Canada need to take notice, because it isn’t just Ontario drivers who are under the scope.  Newfoundland and Labrador, Nova Scotia, Prince Edward Island and Quebec all have similar legislation already in effect and Manitoba’s will come into effect next year. British Columbia and Alberta are also considering bills along the same lines.

What do you think of cellphone bans and employer liability? Join the conversation by adding a comment.


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