Employment Law for Business and Human Resources Professionals 5e 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.