HR Answers Now – Employment and Labour Law 2Nd Edition

HR Answers Now – Employment and Labour Law 2nd Edition Theo Anne Opie, LL.B. Paul Shemilt, CHRP HR Answers Now – Employment and Labour Law 2nd Edition Theo Anne Opie, LL.B. Paul Shemilt, CHRP CCH Canadian Limited 300-90 Sheppard Avenue East Toronto Ontario M2N 6X1 1 800 268 4522 www.cch.ca Published by CCH Canadian Limited Important Disclaimer: This publication is sold with the understanding that (1) the authors and editors are not responsible for the results of any actions taken on the basis of information in this work, nor for any errors or omissions; and (2) the publisher is not engaged in rendering legal, accounting or other professional services. The publisher and the authors and editors expressly disclaim all and any liability to any person, whether a purchaser of this publication or not, in respect of anything and of the consequences of anything done or omitted to be done by any such person in reliance, whether whole or partial, upon the whole or any part of the contents of this publication. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. ISBN 978-1-55496-254-9 © 2010, CCH Canadian Limited All rights reserved. No part of this work covered by the publisher’s copyright may be reproduced or copied in any form or by any means (graphic, electronic or mechanical, including photocopying, recording, taping, or information and retrieval systems) without the written permission of the publisher. 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TABLE OF CONTENTS Page EMPLOYMENT STANDARDS .................................... 1 Defining and Regulating the Employment Relationship .............. 1 Minimum Age ............................................... 11 Hours of Work and Overtime Pay ............................... 15 Minimum Wage and Call-In Pay ................................ 34 Payment of Wages ........................................... 44 Vacations with Pay ........................................... 57 Statutory Holidays ........................................... 77 Leaves of Absence ........................................... 93 Termination of Employment ................................... 161 Equal Pay and Pay Equity ..................................... 206 Employment Equity .......................................... 220 Psychological Harassment ..................................... 229 Penalties for Employment Standards Violations .................... 235 EMPLOYEE INFORMATION AND RECORDS ....................... 238 Employee Records ........................................... 238 Posters and Notices .......................................... 246 HR ANSWERS NOW — EMPLOYMENT AND LABOUR LAW, 2ND EDITION iii TABLE OF CONTENTS Page DISCRIMINATION .............................................. 250 Groups Protected Under Human Rights Legislation ................. 250 Forms of Discrimination ....................................... 285 Complying with Human Rights Legislation ........................ 301 Human Rights Education in the Workplace ....................... 339 Remedying Discrimination ..................................... 344 PRIVACY ..................................................... 366 Current Privacy Provisions .................................... 366 Application of Privacy Laws ................................... 389 Privacy of Employee Records and Information ..................... 411 HEALTH AND SAFETY ......................................... 419 Employer Duties ............................................. 419 Ergonomics and Musculoskeletal Programs ........................ 436 Drug and Alcohol Issues ...................................... 444 Workplace Safety Issues ....................................... 451 iv HR ANSWERS NOW — EMPLOYMENT AND LABOUR LAW, 2ND EDITION EMPLOYMENT STANDARDS Defining and Regulating the Employment Relationship Page Why do you need to define the employment relationship? ................... 2 Is there a definition for ‘‘employee’’?......................................... 2 How do employers apply the employment relationship four-in-one test? ...... 3 What is meant by jurisdiction? .............................................. 5 Why is it important to know which employment standards laws apply? ...... 6 How do I determine which employment standards laws apply to me? ....... 6 If the law in a particular province is silent on a particular topic, do the federal labour provisions in the Canada Labour Code apply? ............ 6 We have employees in a number of provinces. Can we establish one set of labour standards for all employees? ..................................... 7 How does the law regulate the employment relationship? .................... 7 Does employment law cover all employees? ................................. 9 What if an employment contract’s or collective agreement’s provisions differ from employment law requirements? ................................... 9 If an employer sells the business or merges with another company, do employees lose rights that have been built up? .......................... 10 HR ANSWERS NOW — EMPLOYMENT AND LABOUR LAW, 2ND EDITION 1 EMPLOYMENT STANDARDS Q: Why do you need to define the employment relationship? Answer In these days of downsizing and changing technologies, companies and their man- agers are all too often faced with overburdened staff, special projects, and the need for specialized knowledge and skills. To meet such needs, many organizations look for assistance from special-skills providers on an as-needed basis. However, the human resources department is not always aware of the arrange- ments made by individual departments. For these departments to properly do their jobs, the nature of the working relationships established must be properly defined and communicated to the human resources department. Properly defining an individual’s working relationship with the organization as either ‘‘employee’’ or ‘‘independent contractor’’ is extremely important. Employer obligations under employment standards (i.e., payment of wages, vacation and vacation pay, maternity leave, notice of termination, etc.) arise only with respect to employees. Payments to employees are processed through the payroll department and require the accurate withholding and remittance of various deductions (i.e., tax, Employment Insurance, and CPP/QPP). These withholdings and remittances require corresponding employer contributions that are a large cost of doing business. On the other hand, payments to independent contractors are not considered part of payroll activity, do not require corresponding employer contributions, and are usually han- dled through the accounts payable section of the organization. Failure to properly define the working relationship can be costly to the organization and may result in inconvenient and expensive audits, penalties for failure to withhold and remit, and employment standards complaints. Q: Is there a definition for ‘‘employee’’? Answer Defining the nature of the working arrangement is not easily done. While each province’s employment standards legislation imposes various duties and obligations on an employment relationship, there is no legislation that provides a complete definition of ‘‘employee’’. In order to determine who is an employee and who is an independent contractor, we must turn to case law. The leading case in this area is Wiebe Door Services Ltd. v. The Minister of National Revenue, Federal Court of Appeal, June 18, 1986 (87 DTC 5025). In this 2 HR ANSWERS NOW — EMPLOYMENT AND LABOUR LAW, 2ND EDITION DEFINING AND REGULATING THE EMPLOYMENT RELATIONSHIP case, Wiebe was in the business of installing and repairing overhead doors. It carried on its business through the services of a considerable number of door installers and repairers with the specific understanding that the workers would be running their own businesses and would therefore be responsible for their own taxes and contributions to workers’ compensation, Unemployment Insurance (now called Employment Insurance), and the Canada Pension Plan. However, the government assessed Wiebe for UI (EI) premiums and CPP contributions in respect of these persons. The Court determined that the door installers were independent contractors and not employees by applying what is now known as the ‘‘four-in-one test’’. This test considers the following factors: degree of control exercised by the payer, ownership of tools and materials, chance of profit and risk of loss faced by the worker, and the degree the worker is integrated into the business. The Court went on to examine the ‘‘integration test’’ (the integration of the workers into the company’s business) and noted that it was a useful test but only if applied from the worker’s perspective and not the company’s perspective. In cases that followed Wiebe, the four-in-one test has been consistently applied, while the integration test

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