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Questions and Answers
What must restrictions on employee conduct not be contrary to?
What must restrictions on employee conduct not be contrary to?
Who bears the burden of proof regarding the validity of restrictive covenants?
Who bears the burden of proof regarding the validity of restrictive covenants?
What happens to a restrictive covenant if an employee is wrongfully dismissed?
What happens to a restrictive covenant if an employee is wrongfully dismissed?
What aspect of the employment contract does the 'Choice of Law' clause define?
What aspect of the employment contract does the 'Choice of Law' clause define?
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What should employers provide to employees before they sign the contract?
What should employers provide to employees before they sign the contract?
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What is meant by 'Entire Agreement' in a contract?
What is meant by 'Entire Agreement' in a contract?
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What is one way to prevent obsolescence in employee agreements?
What is one way to prevent obsolescence in employee agreements?
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What is the 'contra proferentem' rule concerning ambiguous language in contracts?
What is the 'contra proferentem' rule concerning ambiguous language in contracts?
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Approximately what percentage of employees in Alberta fall under the jurisdiction of the legislation mentioned?
Approximately what percentage of employees in Alberta fall under the jurisdiction of the legislation mentioned?
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Which statement about unionized employees is correct?
Which statement about unionized employees is correct?
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What is the primary purpose of the workers' compensation (WC) acts in Alberta and BC?
What is the primary purpose of the workers' compensation (WC) acts in Alberta and BC?
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Which key feature ensures that WC rights cannot be waived?
Which key feature ensures that WC rights cannot be waived?
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What is the focus of the legislation regarding workers' compensation?
What is the focus of the legislation regarding workers' compensation?
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What is illegal for workers in relation to workers' compensation premiums?
What is illegal for workers in relation to workers' compensation premiums?
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What is one of the trade-offs associated with the workers' compensation system?
What is one of the trade-offs associated with the workers' compensation system?
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What is one of the remedies available to a complainant in case of discrimination?
What is one of the remedies available to a complainant in case of discrimination?
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What must a job description accurately reflect during the recruitment process?
What must a job description accurately reflect during the recruitment process?
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What is required for a workplace policy to be considered a BFOR?
What is required for a workplace policy to be considered a BFOR?
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Which of the following actions is specifically prohibited by Section 13(2) in BC?
Which of the following actions is specifically prohibited by Section 13(2) in BC?
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What must an employer do if an essential job requirement negatively affects a person on a prohibited ground?
What must an employer do if an essential job requirement negatively affects a person on a prohibited ground?
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Under Alberta's employment discrimination laws, what is prohibited regarding employment agencies?
Under Alberta's employment discrimination laws, what is prohibited regarding employment agencies?
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Which of the following actions does NOT constitute a remedy for discrimination?
Which of the following actions does NOT constitute a remedy for discrimination?
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What is an example of a condition that must be met for a workplace policy to be deemed necessary?
What is an example of a condition that must be met for a workplace policy to be deemed necessary?
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What is the minimum overtime pay rate for employees working beyond 8 hours in a workday in Alberta?
What is the minimum overtime pay rate for employees working beyond 8 hours in a workday in Alberta?
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Under what condition can an employee be required to work longer without a break?
Under what condition can an employee be required to work longer without a break?
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What happens if an employee does not take the time off equivalent for overtime within three months?
What happens if an employee does not take the time off equivalent for overtime within three months?
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What is the basic vacation entitlement for employees after 5 years of continuous service in Alberta?
What is the basic vacation entitlement for employees after 5 years of continuous service in Alberta?
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How long must an employee work to qualify for annual vacation entitlement?
How long must an employee work to qualify for annual vacation entitlement?
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Which of the following statements is true regarding coffee breaks?
Which of the following statements is true regarding coffee breaks?
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What is the entitlement to vacation for employees after 1 year of service?
What is the entitlement to vacation for employees after 1 year of service?
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What must an employee do if they choose to bank their overtime instead of receiving pay?
What must an employee do if they choose to bank their overtime instead of receiving pay?
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What is a potential outcome if an employment contract's terms are found to be extremely one-sided?
What is a potential outcome if an employment contract's terms are found to be extremely one-sided?
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Which of the following is considered an express term in an employment contract?
Which of the following is considered an express term in an employment contract?
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When courts interpret ambiguous contractual obligations, what type of evidence can they rely on?
When courts interpret ambiguous contractual obligations, what type of evidence can they rely on?
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What type of contract is advised for more senior or specialized job positions?
What type of contract is advised for more senior or specialized job positions?
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What is NOT a typical key term in an employment contract?
What is NOT a typical key term in an employment contract?
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What is the minimum pay rate for overtime hours in Alberta?
What is the minimum pay rate for overtime hours in Alberta?
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How long must an employee work to receive annual vacation entitlement?
How long must an employee work to receive annual vacation entitlement?
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What occurs if an employee does not take the time off for banked overtime within three months?
What occurs if an employee does not take the time off for banked overtime within three months?
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What is the standard break for employees in Alberta after every five hours of work?
What is the standard break for employees in Alberta after every five hours of work?
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What is the primary condition under which an employer may require an employee to work longer without a break?
What is the primary condition under which an employer may require an employee to work longer without a break?
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Employers must keep most employee records for five years after the record was made.
Employers must keep most employee records for five years after the record was made.
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An employer in Alberta must pay at least the minimum wage prescribed by regulations.
An employer in Alberta must pay at least the minimum wage prescribed by regulations.
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In Alberta, marital status is not considered a protected ground against discrimination.
In Alberta, marital status is not considered a protected ground against discrimination.
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85% of Human Rights complaints in Alberta are related to employment practices.
85% of Human Rights complaints in Alberta are related to employment practices.
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Study Notes
Restrictive Covenants
- Restrictive covenants limit an employee's ability to compete with a former employer after employment ends.
- To be valid, restrictive covenants must be reasonable and not contrary to the public interest.
- The employer must prove the validity of the restrictive covenant, and any doubts are resolved in favor of the employee.
- Non-competition clauses must be carefully drafted to only go as far as necessary to protect the employer's legitimate business interests.
- A valid restrictive covenant is no longer binding if an employee is wrongfully dismissed.
Intellectual Property Ownership
- It's important to establish who owns client relationships in a sales environment, including "book of business."
Choice of Law
- This clause specifies the jurisdiction where any disputes regarding the employment contract will be heard.
Corporate Policies
- It's important to make sure employees know that the company's manual contains contractual terms.
- Employees should have the opportunity to review the manual before signing their employment contracts.
Entire Agreement
- The written contract represents the complete agreement between the parties.
- Previous conversations, drafts, or promises are not binding.
Inducement/Allurement/Enticement
- This concerns whether an employer will acknowledge service from a previous employer regarding termination notice.
Obsolescence
- To prevent employment agreements from becoming outdated, it's advisable to periodically review and update them to reflect changes in job duties.
- Promotions can be made contingent upon signing an updated agreement.
- Minimum and maximum notice provisions should be set to cover changes in job duties.
Enforceability and Interpretation
- Contract terms must meet or exceed minimum statutory standards.
- If terms fall below statutory standards, they are unenforceable, and employers may be liable for full common law reasonable notice.
- Ambiguities in contract language are interpreted against the drafter, usually the employer.
Alberta Employment Standards
- The Employment Standards Code sets out minimum terms and conditions of employment.
- It establishes minimum requirements for termination notice and pay.
- It applies to nearly 90% of Alberta employees, but coverage is not universal.
- Employment and collective agreements cannot undercut the Employment Standards Code.
- Unionized employees are covered, but the most significant benefits are usually covered by the collective agreement.
- If an employer promises a greater right or benefit, it will be enforced if it relates to a specific benefit under the Employment Standards Code.
- Enforcement is complaint-based, applying to all employers regardless of size.
Eating Periods and Coffee Breaks
- Alberta law requires a half-hour break, paid or unpaid, every five hours of work.
- If unpaid, employees are not required to remain on the premises.
- Employers may require employees to work longer without a break under certain circumstances.
- Employers are not legally required to provide coffee breaks.
- If coffee breaks are provided, employers must pay for that time and employees must remain at the workplace.
Overtime Pay
- Employers must pay 1.5x the regular rate for all hours worked beyond 8 hours on a workday or 44 hours in a workweek.
- Some jobs are exempt from overtime pay requirements.
- A list of exempt occupations can be found in the Employment Standards Registration.
Banking of Overtime
- Employers and employees can agree to receive paid time off work instead of overtime pay.
- An employee can receive 1 paid hour off work ("straight time") for each hour of overtime worked.
- If the time off isn't provided or taken within three months, employees must be paid 1.5x overtime pay.
Annual Vacation
- Employees must have worked for at least 12 months continuously with an employer to be eligible for annual vacation.
- Vacation entitlement starts at 2 weeks and increases to 3 weeks after 5 years of qualifying seniority.
- Vacation entitlement can be reduced in proportion to absences from work, including maternity, parental, and other leaves.
Human Rights Legislation
- Human Rights legislation prohibits discrimination based on certain grounds, including race, sex, religion, disability, and others.
- Employers must make reasonable accommodations for employees with disabilities to avoid discrimination.
Issues in Recruitment, Selection and Hiring
- An employer should ensure its job description accurately reflects the employer's needs and expectations.
- An employer must accommodate an individual's needs to the point of "undue hardship" if an essential job requirement negatively affects that person due to a prohibited ground.
Employment Agencies
- Employment agencies are prohibited from discriminating when referring candidates.
- Agencies should be cautious about requests or instructions to hire based on prohibited grounds of discrimination.
Emergency Response
- Employers are expected to prepare for pandemics, including implementing pandemic safety measures, even though it is not required by OHS legislation.
- Emergency response plans should include: providing credible information, minimizing interactions, altering physical workspace, increasing cleanliness, maintaining supplies, working from home, and more.
Workers Compensation
- Workers' compensation legislation provides a no-fault insurance scheme for work-related injuries and diseases.
- Employers pay premiums to fund the system.
- The benefit of workers' compensation is that employees receive benefits for work injuries, and in exchange, employers are protected from lawsuits by injured workers.
- Workers' compensation legislation increasingly focuses on prevention and proactive measures.
###Key Features of Workers Compensation
- Payments are made regardless of employer or employee negligence.
- Benefits are funded by employer-paid premiums.
- Workers cannot contribute to workers' compensation premiums.
- Workers' compensation rights cannot be waived.
- Coverage is mandatory for most employers.
- The focus is on the early and safe return to work of injured employees.
- Vocational rehabilitation is offered for employees unable to return to their prior jobs.
- Workers' compensation boards administer the system.
Workers Compensation Coverage
- Most industries are covered by workers' compensation.
- Some industries are not compulsorily covered but may apply for coverage.
- Some industries not compulsorily covered include financial institutions, recreational and social clubs, broadcasting stations, and law firms.
Express Contractual Obligations
- Express terms in Employment Contracts
- Contracts may not foresee all the contingencies that may arise during the term
- Basic terms are position, salary, vacation, expected hours of work
- May include Confidentiality Agreement, Non-solicitation, and Non-competition clauses
- Contracts may not foresee all the contingencies that may arise during the term
- Courts will enforce terms as written
- May interpret terms contrary to the interests of the dominant party if a term is unduly onerous on the employee
- Contracts deemed unconscionable may be deemed void due to an imbalance of power or duress
Implied Contractual Obligations
- Some of the most fundamental duties owed by an employee to an employer are not written (duty of loyalty)
- Obligations can be oral, written, or a combination of both
- Obligations can be determined through:
- Past Practices
- Pre-Contractual Negotiations
- Customs
Common Contractual Terms
- Customize for each employee
- Key Terms
- Names of the parties
- Date the contract begins
- Position
- Job description
- Duration (if it's for a fixed term)
- Compensation
- Termination notice
Common Contractual Terms (cont'd)
- Job description
- Remuneration
- Term
- Fixed or indefinite
Eating Periods and Coffee Breaks
- Eating periods in Alberta
- Employers must provide a half-hour break every five hours, with or without pay
- If unpaid, employees are not required to stay on the premises
- Coffee breaks in Alberta
- Employers are not required to provide coffee breaks
- If a coffee break is provided, employers must pay for that time and the employee is required to remain at the workplace
Overtime Pay
- In Alberta, employers must pay 1.5x the regular rate for all hours worked beyond 8 hours per workday or 44 hours per workweek
- Specific occupations are exempt from overtime pay
Banking of Overtime
- Employees can agree to receive paid time off in lieu of overtime pay (straight time)
- If the time off is not taken within 3 months, then the employee must be paid 1.5x overtime pay
Annual Vacation
- Employees must have worked 12 consecutive months with the employer
- Entitlement starts at 2 weeks and increases to 3 weeks after 5 years
- May be reduced proportionally for absences, including maternity, parental, and other leaves
Parental Leave
- In Alberta, up to 37 consecutive weeks within 53 weeks after birth or adoption placement
- Applies to both parents, but not at the same time
- Requires 90 days of continuous employment
- Not paid by the employer
- Employees may be able to claim under the Employment Insurance Act
Maternity and Parental Leave
- Employers cannot terminate a leave of absence unless the business is discontinued
- Employee must provide 4 weeks’ notice before the leave begins
Reservist Leave
- Requires 26 consecutive weeks of employment
- Provides unpaid, job-protected leave for deployment and up to 20 days of annual training
Reservist Leave (cont'd)
- Employees must provide 4 weeks notice
- Employers cannot terminate employees on leave
- Employers must reinstate the employee to a position occupied or comparable
Compassionate Care Leave
- Unpaid, job-protected leave of up to 27 weeks for primary caregivers
- Requires 90 days of employment
Compassionate Care Leave (cont'd)
- Dovetails with EI's Compassionate Care Leave
- Employee must provide 2 weeks' notice
- Employers cannot terminate the employee
- Employers must reinstate the employee to a position occupied or comparable
Other Leaves
- Disappearance of a child leave
- Critical illness of a child leave
- Long-term illness and injury leave
- Domestic Violence Leave
- Personal and family responsibility leave
- Bereavement leave
Employee Rights During Statutory Leaves
- Right to reinstatement
- Right to salary plus increases
- Right to retain benefits
- Right to vacation entitlement
- Right to be free from reprisals
- Right to accrue seniority
Administration and Enforcement
- Complaints filed to ES
- ES may mediate
- ES may escalate to director
Administration and Enforcement (cont'd)
- Director has broad powers including investigations and the power to impose a remedy and penalty.
- If a contravention is found, the director will issue orders to the employer
- If no contravention is found, the employee can appeal
Penalties
- Up to $100,000 for a corporation
- Up to $50,000 for an individual
Understanding Discrimination & Human Rights Complaints
- Employers must keep workplaces free of discrimination and harassment.
- This requirement exists for the entire employment relationship: hiring, training, transfers, promotions, compensations, performance evaluations, discipline, termination, layoffs.
- Alberta Human Rights Act
- BC Human Rights Code
What is Discrimination?
- Discrimination does not have to be intentional
- 3 Part Test:
- The complainant has a characteristic protected by the legislation
- The complainant experienced an adverse impact in their employment
- The protected characteristic was a factor in the adverse impact
- Systemic Discrimination: neutral policies and practices that have discriminatory effects
Due Diligence Defence
- OH&S offences have strict liability - Intent or negligence is not required for conviction
- Due diligence is attempting to show every reasonable precaution was taken
- A health and safety program that meets due diligence standards includes:
- Designated senior manager responsible for compliance
- Health and safety policy
- Safety orientations
- Regular safety inspections
- Monthly safety meetings
- Employer support and response to JHSC
Penalties
- Penalties apply to individuals or corporations
- BC Fines:
- Maximum for first conviction: 724,644.41+724,644.41 + 724,644.41+36,232.25/day.
- Maximum for subsequent convictions: 1,449,288.80+1,449,288.80 + 1,449,288.80+72,434.44/day
- AB Fines:
- Maximum for first conviction: 500,000+500,000 + 500,000+30,000/day
- Maximum for subsequent convictions: 1,000,000+1,000,000 + 1,000,000+60,000/day
Criminal Liability of Organizations
- The Criminal Code makes it a crime to not take reasonable steps to prevent bodily harm arising from work
- Organizations are liable for the individual or combined effects of actions by several employees
- Organizations are liable for the actions of senior officers and for members, agents, and employees
- Summary conviction: less serious offences with fines under $100,000
- Indictable Offence: More serious offences with no maximum fine and potential life imprisonment
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Description
This quiz covers essential aspects of employment law, focusing on restrictive covenants, intellectual property ownership, choice of law, and corporate policies. Understanding these legal principles is crucial for both employers and employees, ensuring fair practices and clear contractual obligations. Test your knowledge on how these topics impact the workplace!
