F2024 Quiz 1 ELAW.pdf

Employment Law for Business and Human Resources Professionals 5e 1 Sources of Employment Law Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Busi...

Employment Law for Business and Human Resources Professionals 5e 1 Sources of Employment Law Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 2 Sources of Employment Law (cont.) Statute law refers to laws (also called legislation, acts, or statutes) passed by the federal or provincial/territorial government Most employee rights contained in statutes apply to both unionized and non-unionized employees Employment statutes historically have set out minimum standards for working conditions Other statutes may affect the employment relationship, such as anti-discrimination legislation Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 3 Sources of Employment Law (cont.) How are statutes made? Both in Ontario and the federal government, a bill must pass three readings in the legislature to become a statute Public bills are of general application and are introduced by the Cabinet minister who is responsible for the relevant subject Private members’ bills may deal with public matters, but they are introduced by private members rather than Cabinet ministers Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 4 Sources of Employment Law (cont.) A bill becomes a statute once it receives Royal Assent Regulations: rules made under the authority of a statute E.g., Employment Standards Act, 2000 is legislation, but minimum wages for various occupations are found in regulations that accompany the Act Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 5 Sources of Employment Law (cont.) Key Ontario employment statutes: Employment Standards Act, 2000 Human Rights Code Labour Relations Act, 1995 Occupational Health and Safety Act Workplace Safety and Insurance Act, 1997 Pay Equity Act Accessibility for Ontarians with Disabilities Act, 2005 Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 6 Sources of Employment Law (cont.) Federal employment law is restricted by the Constitution Act, 1867 to industries of national importance Federal employment statutes include: Canada Labour Code Canadian Human Rights Act Employment Equity Act Personal Information Protection and Electronic Documents Act (PIPEDA) Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 7 Sources of Employment Law (cont.) The Canadian Charter of Rights and Freedoms was adopted as part of the Constitution Act, 1982 Charter does not specifically address employment law, but the rights guaranteed within it can affect the workplace when government action is involved Most important Charter guarantee from an employment perspective is section 15 Also important is section 33, known as the notwithstanding clause Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 8 Sources of Employment Law (cont.) Common law is the law that has developed from court decisions, or case law Operates on the basis of precedent Stare decisis – higher court decisions are binding on lower courts in the same jurisdiction and in similar situations Occasionally high courts may decide to expand the boundaries of previous rulings or depart entirely from them Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 9 Sources of Employment Law (cont.) Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 10 Sources of Employment Law (cont.) Two branches of the common law that affect employment are: Contract law regulates contractual relationships, including the terms and conditions of non-union employment; and Tort law is a branch of civil law (non-criminal law) that covers torts, or wrongs for which there is a civil remedy Torts may be deliberate or negligent Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 11 Judicial Framework Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 12 Judicial Framework (cont.) The Administrative System Administrative tribunals make decisions in specialized areas, such as employment standards or discrimination Administrative agencies or commissions may be empowered to investigate complaints or make rulings Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 13 Defining the Employment Relationship Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 14 Defining the Employment Relationship (cont.) An individual may be considered an independent contractor for tax purposes but an employee for the purposes of a wrongful dismissal action Once proclaimed, the Digital Platform Workers’ Rights Act, 2022 will introduce certain protections for gig workers who perform digital platform work An agent is someone who represents another person—the principal—in dealings with a third party Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 15 Introduction Unlike the Charter, provincial and territorial human rights statutes apply to the actions of individuals and corporations. Every jurisdiction in Canada has enacted human rights legislation that prohibits discrimination in key social areas. Discrimination was originally limited to intentional acts, but the definition has now expanded. Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 16 Introduction (cont.) Meiorin three-part test for BFOR or BFOQ: 1) Was the rule or requirement adopted for a purpose rationally connected to the performance of a job? 2) Was it adopted in an honest belief that it was necessary to satisfy a legitimate business purpose? 3) Was it reasonably necessary to accomplish that purpose? (Impossible to accommodate without creating undue hardship for employer.) Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 17 Overview of Alberta’s Human Rights Code Key features : Applies to both private and public sector and to conduct of individuals. Prohibits discrimination in employment on 16 grounds; also prohibits sexual harassment as well as harassment based on other prohibited grounds. Intent to discriminate not necessary; effect matters as much as intent. Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 18 Overview of Alberta’s Human Rights Code (cont.) Not possible to contract out of the Code. Provides for civil remedies, not criminal penalties. If conflict between Code’s provisions and that of another statute, Code prevails unless other statute specifically states that it applies despite the Code. Applies to every stage of the employment relationship, including recruitment. Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 19 Overview of Alberta’s Human Rights Code (cont.) Code is remedial legislation. Some exemptions apply, such as those for special service organizations. Additional grounds of discrimination include discrimination because of association and discrimination through reprisal. Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 20 Overview of Alberta’s Human Rights Code Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 21 Exemptions: Where Discrimination Is Allowed 1. Special Service Organizations 2. Bona Fide Occupational Qualifications and Requirements (BFOQ/BFOR) (S.7(3) AHRA) 3. Reasonable and Justifiable 4. Employer reached point of “undue hardship” 5. Special (Affirmative Action) Programs Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 22 Recruitment, Selection, and Hiring Protects job applicants as well as employees. Code is infringed even if a discriminatory ground is only one of several reasons for an employment decision. Employers should ensure that they set out a position’s essential duties. Employers have a duty to accommodate to the point of undue hardship, which must be proved on a balance of probabilities. Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 23 Recruitment, Selection, and Hiring (cont.) Employment agencies must comply with all human rights requirements. Job advertising through word of mouth may perpetuate the status quo; best practice is to broadly advertise positions. Advertisements should not contain qualifications that directly or indirectly discourage or exclude members of protected groups. Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 24 Recruitment, Selection, and Hiring (cont.) Code prohibits questions on applications that directly or indirectly classify candidates by prohibited grounds. At interviews, employers may only include questions that touch on a prohibited ground if they relate to a BFOR/BFOQ or fall under an exemption. An employer should not automatically screen out candidates it considers to be overqualified. Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 25 Recruitment, Selection, and Hiring (cont.) Requests for information that may disclose inclusion in a protected class should be left until after a conditional offer of employment has been made (e.g., request to see driver’s license or professional credentials). Pre-employment medical or fitness exams should take place only after a conditional offer of employment has been made. Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 26 Recruitment, Selection, and Hiring (cont.) Because substance dependencies are considered forms of disability, pre-employment alcohol and drug testing may be discriminatory. Employers should be prepared to accommodate candidates who test positive. Tests that measure job-related skills are acceptable but should take care to avoid discriminatory requirements. Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 27 Areas of Common Law Liability 1. Misrepresentation by Job Candidates Misrepresentations by employees before before being hired may be justify dismissal for cause. Also applies to false statements that suggest an inherent lack of honesty. Minor or negligent misstatements do not customarily justify dismissal without notice. Applications should include an attestation clause. Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 28 Areas of Common Law Liability (cont.) 2. Wrongful Hiring: Negligent Misrepresentation If an employer misleads a prospective employee, and that candidate relies on that misrepresentation to their detriment, the employer may be liable for damages. In Queen v Cognos Inc., the Supreme Court set out a test for negligent misrepresentation. A more recent decision underlying employer liability for fraudulent misrepresentation is Feldstein v 364 Northern Development Corporation. Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 29 Areas of Common Law Liability (cont.) Employers should take steps to avoid liability by: 1. Ensuring that all information given at pre- employment stage is accurate and complete. 2. Confirming the job description is accurate and interviewers are prepared to answer questions about job and compensation package. 3. Being candid about the job. 4. Refraining from “guessing” answers to questions they can’t answer knowledgably. Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 30 Areas of Common Law Liability (cont.) 5. Considering when someone else may be best suited to answering the prospective employee’s questions. 6. Making notes at interviews and having at least two employees attend all interviews. Employers should prepare a written employment contract including a clause stating that all oral representations are void on signing. Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 31 Areas of Common Law Liability (cont.) 3. Inducement: Aggressive Recruiting Inducement: luring an employee from a position through aggressive recruiting or inflated promises. Where inducement is shown and the employee is subsequently dismissed, employee may be entitled to a larger award for wrongful dismissal damages than if there had been no inducement. Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 32 Areas of Common Law Liability (cont.) Employers should take care to be honest about the job and future prospects; address the notice period in the event of a future termination in the written contract; be clear not to tie a signing bonus or other incentive to inducing the candidate to leave other employment; draft the employment contract carefully; avoid advising the candidate re. their obligations to their current employer; and include a probationary clause in the contract. Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 33 Areas of Common Law Liability (cont.) 4. Restrictive Covenants Act to restrict the ability of employees to compete with their former employer, solicit other employees or customers, or use confidential information of the former employer. 2021 amendments to the Employment Standards Act prohibit non-competition clauses except 1) where the seller/leasor of a sole proprietorship becomes the employee of the buyer; or 2) where the non-compete agreement is with an executive. Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 34 Areas of Common Law Liability (cont.) 5. Anticipatory Breach of Contract Occurs when one party repudiates the employment contract after the offer is accepted but before employment begins. To be successful in an action for anticipatory breach of contract, an employee must show that: an offer of employment was made; the offer was accepted; the contract was then repudiated by the employer; and the employee suffered damages as a result. Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 35 Areas of Common Law Liability (cont.) 6. Background Checking: Negligent Hiring Negligent hiring, including failing to verify the information provided by a candidate, may open the employer up to liability if an employee later causes foreseeable harm to a third party. The more that a job exposes others to the risk of harm, the stronger an employer’s duty to investigate will be. Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 36 Areas of Common Law Liability (cont.) When hiring for a position that requires applicants to hold a certain degree, such as for engineers or nurses, employers should verify degrees directly with the listed institutions. Employers in Ontario who wish to conduct a credit check on an applicant must comply with the Consumer Reporting Act. Employers should conduct police records checks when hiring for positions involving work with vulnerable persons. Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 37 Areas of Common Law Liability (cont.) Police records checks require a candidate’s informed consent. Internet and social media searches may reveal inaccurate information or information about prohibited grounds of discrimination, so they should be used with caution. To help protect the employer from liability, most types of background checks should be done after a conditional offer of employment is made, with the exception of reference checks. Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 38 Different Types of Employment Relationships Employees may be: permanent full-time or part-time, temporary (contract workers), casual, agency/temps, or temporary foreign workers. Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 39 Different Types of Employment Relationships (cont.) In Ontario, in most cases, employment statutes do not distinguish between different types of employees. However, temporary employees are not generally entitled to termination notice or pay in lieu of notice. To be eligible for benefits under the EI system, an employee must have worked a number of qualifying hours in insurable employment. Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 40 Written Employment Contracts Offer, acceptance, and consideration are the three basic elements necessary to create a contract. As long as it has the basic elements of a contract, an oral agreement will be binding. Advantages of a written contract: 1. Reduces risk of misunderstandings 2. Addresses contentious issues early 3. Reduces uncertainty Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 41 Common Contractual Terms Employers should customize contracts to specific employees rather than using a single standard contract. For less skilled positions, a letter containing key terms and the employer’s policy manual may be sufficient. Contracts may include any terms that are not prohibited by law, although employers should word them carefully to avoid liability. Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 42 Common Contractual Terms (cont.) 1. Job Description 2. Remuneration 3. Term 4. Termination i. Termination Without Cause ii. Termination and the Duty to Mitigate iii. Termination for Cause Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 43 Common Contractual Terms (cont.) iv. Other Terms Related to the Termination Clause 5. Notice of Resignation 6. Probationary Period 7. Relocation 8. Remote Work 9. Benefits Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 44 Common Contractual Terms (cont.) 10. Restrictive Covenants 11. Ownership of Intellectual Property 12. Choice of Law 13. Corporate Policies 14. Entire Agreement Clause 15. Inducement 16. Independent Legal Advice Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 45 Common Contractual Terms (cont.) 17. Severability Clause 18. Golden Parachute 19. Temporary Layoff/Disciplinary Suspension Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 46 Implied Terms Terms based on presumed intention: implied “in fact.” Standard terms based on the parties’ rights and obligations: implied “in law.” Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 47 Implied Terms (cont.) Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 48 Enforceability and Interpretation of Written Contracts A party unhappy with the terms of an employment contract may challenge its enforceability on one or more of the following grounds: 1. Lack of consideration 2. Inequality of bargaining power 3. Obsolescence 4. Failure to meet minimum statutory standards Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 49 Enforceability and Interpretation of Written Contracts (cont.) 5. Use of ambiguous language: contra proferentem rule 6. Frustration of contract Copyright © 2024 Emond Montgomery Publications. All rights reserved.