Sara Forte - Forte Law

No jab, no job? Mandatory vaccines at work

No jab, no job?

Mandatory vaccines at work

Amidst the chaos, one message was consistent over the first 16 months of this pandemic – vaccinations were strongly encouraged but a personal choice, and mandatory vaccines were not being considered. In the last week, we have seen a dramatic shift in the position of our federal government and several provincial governments on mandatory vaccines. As of the time of writing this blog, mandatory vaccines have been announced for all federal government employees and our BC Provincial Government has announced mandatory vaccines for those working in long term care. We have also seen announcements from individual organizations in the public and private sectors that they are implementing mandatory vaccine policies.

Inquiries have been flooding our employment law firm over the last few days as businesses, workers and unions try to figure out their rights and obligations in a world where mandatory vaccines for workplaces may suddenly be on the table. Here are some answers to frequently asked questions:

1. Can a non-vaccinated person be fired because of their vaccination status?

Particularly outside of the government-mandated industries (in BC, long-term care and federal government employees), this is still a risky move for businesses. Refusing a vaccine is unlikely to be accepted as just cause for termination, which means severance pay would be owed. Unvaccinated workers can also expect a tougher time in a job search, which could increase the amount of severance pay due. In a unionized environment, this is even more complex as workers can generally only be fired for just cause.

The biggest risk, however, lies with the reason for refusing the vaccine. A blanket approach for all non-vaccinated workers is bound to fail. There is a group of people who are unable to be vaccinated for medical reasons or due to their religious beliefs. Firing a worker who is in this category could be the basis for a human rights complaint. Our BC Human Rights Tribunal is prioritizing Covid-related complaints and would be likely to take quick action.

2. Can vaccination status be a requirement for hiring?

A blanket requirement to be vaccinated to be eligible for a job is also problematic because it covers people with different reasons for refusing the vaccine. This requirement would discriminate against job applicants who are unable to be vaccinated for medical or religious reasons. Discriminating against a job applicant can the be basis for a human rights complaint, and the BC Human Rights Tribunal may also take quick action on this type of complaint.

3. Should businesses implement a vaccine policy?

Businesses should not jump on the wagon of mandatory vaccination without careful consideration. Mandatory vaccine requirements for some workers in some industries may be appropriate. For other workplaces, it may not make sense. Any policy with a mandatory vaccine must include processes to deal with exceptions for workers who are unable to be vaccinated (as different from those who are unwilling to be vaccinated). These processes should protect the privacy of those unable to be vaccinated as much as possible.

If a business is contemplating a mandatory vaccine, a clear written policy is essential, as well as a communications and employee relations strategy. Give the rapidly changing legal landscape on mandatory vaccines, businesses should also closely monitor any changes, and, as with all things in this pandemic, be prepared to pivot.

Covid-19

What does the November 7th Public Health Order mean for BC Workplaces?

What does the November 7th Public Health Order mean for BC Workplaces?

This weekend’s news and Order from BC Public Health Officer Dr. Bonnie Henry has an impact on employers and workers in BC. It is time to revisit our Covid Safety Plans.

Covid Safety Plans

Every employer in BC should have a written Covid Safety Plan. Covid Safety Plans have been required by WorkSafe BC since early in the pandemic and there are some really helpful tools and templates on the WorkSafe BC website.

A Covid Safety Plan outlines the policies, guidelines, and procedures put in place to reduce the risk of COVID-19 transmission at work. Plans are not “one-and-done” but need to be revisited periodically. With this weekend’s new health order, employers must review and may need to update their plans. Need help with a Covid Safety Plan? Contact WorkSafe BC, your HR Professional or an employment lawyer. We have helped many businesses put together plans.

November 7^th Public Health Order

The Order is available online here and is in effect until November 23, 2020 at 12:00 PM. Effective immediately, employers are required do to the following:

Conduct active daily in-person screening of all onsite workers using the Covid symptom checklist.
Ensure that all workers and customers maintain appropriate physical distance and wear masks where appropriate.
Take extra care in small office spaces, break rooms and kitchens.

In her press conference on Saturday, Dr. Henry also recommended that employers encourage remote work where possible, although this is not included in the written Order.

Work-Related Travel

Travel, including business travel, is another activity impacted by the Order. Travel in and out of the Lower Mainland and Fraser Valley is limited to essential travel only. There is no detail provided about what travel is essential, but there is a list of essential services online here.

We will get through this together and as always, be kind, be calm, be safe.

Covid-19, Layoff

Covid Layoffs are Ending in BC, Now What?

Covid Layoffs are Ending in BC, Now What?

For workers and businesses in BC, ongoing changes to the temporary layoffs allowed by the Employment Standards Act (“ESA”) have been hard to track. Pre-pandemic, temporary layoffs could not be longer than 13 weeks. During the pandemic, our provincial government extended the allowed layoff length a few times and we are now coming to the end of the latest extended layoff period.

At the time of writing this blog, temporary layoffs due to Covid that started before June 1, 2020 are to a maximum length of 24 weeks, or must end on or before August 30, 2020, whichever is sooner. Assuming there are no more changes, what does this mean for businesses or workers covered by BC Employment Standards with temporary layoffs that started before June 1, 2020?

Deemed Termination

If nothing happens, and a worker remains on temporary layoff as of August 30, 2020, their employment is deemed to be terminated by the ESA. That means that their employment relationship ends and they are generally owed severance pay of at least the minimum amounts under Section 63 the ESA of 0-8 weeks, depending on length of service. Severance could be much more than these minimums if there is a group termination of more than 50 workers at a single location, or if common-law severance is owed.

There is an exception to severance pay requirements were an employer can prove that Covid-19 made the employment contract impossible to perform (see Section 65(1)(d) of the ESA). This is called “frustration of contract” and is assessed on a case-by-case basis. Not every business that has been impacted or had to downside because of Covid-19 will be able to use the frustration defense, and this is a new application of law, so quite unpredictable.

Variance

Employers in BC have the option to apply for a “variance,” to extend the temporary layoff period past August 30, 2020. Employers must submit an application for a variance by August 25, 2020, and it must include the expected recall date, as well as evidence that 50% or more of impacted employees agree with the variance request. The variance application link and information are here.

Return to Work

The final option is for businesses to bring workers back from layoff before August 30, 2020. This may involve a return to the worker’s pre-layoff job and schedule, or there may be changes needed. There is potential for disagreement and possibly constructive dismissal claims based on changes, which are complex legal matters. One thing that is set by the ESA is if wages are reduced by 50% or more, the worker is still considered to be on layoff, and so the deemed termination could still take place.

In this unprecedented time of change to our employment laws, it is important to verify the current status before you make decisions. The best source of up-to-date information is the BC Government’s Employment Standards Act website. Seek advice from an employment lawyer if the ESA does not apply to you, if you are considering a return to work agreement or to get information about severance requirements.

Covid-19

Hello from the other side? 5 key risks in recalling workers post-Covid

Over the last few days, questions about returning people to work have been steadily coming in to our team, as clients plan for reopening or rebuilding from a skeleton crew. This is an exciting time, but as businesses continue to pivot and rethink their operations, there are also new risks and complications. In this blog, we tackle five of the top risks we see for BC businesses as they call non-union workers to talk about returning to work.

Workplace Health and Safety

This is the first and most critical piece of any plan for bringing workers back. You must ensure that you understand and have implemented appropriate safety protocols including physical distancing and personal protective equipment. WorkSafeBC and the BC Centre for Disease Control have practical information on their websites. It is also critical to communicate to workers who are returning the steps taken to ensure they will be safe.

Protected Covid Leaves

The new protected leaves added to the BC Employment Standards Act remain in effect. There are several types of leaves but one that will come up frequently is a mandatory leave for workers who need to provide care for their child due to school or daycare closure. At the time of writing this blog, there is no timeline for reopening of BC schools. Any workers who have school-aged children or are otherwise eligible for protected leave cannot be required to return to work. As described below under Human Rights, businesses should still include workers with children in return to work planning, and ensure they are offered a return.

Human Rights

There can be a well-intentioned inclination to assume certain groups of workers may not want to return to work. For example, workers who are pregnant, are older, or have school-aged children. Approaching older workers about early retirement or asking pregnant employees to start maternity leave early can make workers feel singled out and side-lined. If an employer considers any human rights protected characteristic in deciding who to recall or even who to call to discuss/offer a return, that could be discrimination under the Human Rights Code. Businesses can consider what skills are needed and what positions will add value, but they should not be considering any personal characteristics such as gender, age, disability or family/marital status. That said, if a worker raises a human rights issue as impacting their ability to return to work, the employer must consider how they can accommodate their restrictions or limitations. This may seem contradictory but it is important to leave workers in the driver’s seat when it comes to human rights, and not make any decisions about them based on assumptions or stereotypes.

Constructive Dismissal

Many businesses are preparing for a “new normal” which may include dramatically different operations and staffing requirements. Businesses may need fewer workers in retail sales and more delivery drivers, for example. Fundamental and unilateral changes to a worker’s role may be a constructive dismissal and entitle the worker to consider themselves to be permanently terminated and entitled to severance pay. The simplest solution to this is to ensure any significant changes are discussed with workers and agreed to in writing. If they do not agree, this is a tricky situation, and time to get some legal advice.

Severance

In deciding which workers are needed to reopen or rebuild, we are also seeing businesses starting to make decisions about workers who will not be returning. If you are changing a temporary layoff to a permanent one, termination pay (aka severance pay) will be due. In very general terms, how much termination pay is owed will be influenced by how long they have worked for you (length of service), employment contract terms about termination, and the worker’s age, the nature of their job and availability of alternative employment. In considering who will return and who will not, potential severance liability is a key consideration.

For businesses who are continuing some or all of their workers on temporary layoffs, keep in mind that under the Employment Standards Act temporary layoffs due to Covid-19 have a maximum length of 16 consecutive weeks (extended from 13 to 16 weeks, effective May 4, 2020) in a 20-week cycle period. If workers are being returned at less than 50% of their normal weekly wages, this time is still considered a “week of layoff,” so counts towards that 16 weeks. Once a temporary layoff goes longer than 16 weeks, it can convert to a permanent layoff, with severance pay owed.

This is an exciting time for businesses and workers alike ,but should be approached with careful consideration. Even a single legal claim by a worker can derail a business in this critical time of rebuilding, and are these claims are often avoidable.

WorkShare Program

Can the WorkShare program save your business?

Many Canadian employers, HR professionals, and even some employment lawyers (not naming names, ahem…) had never heard of the federal government’s WorkShare program until a few weeks ago. The federal government is leaning heavily on WorkShare as a key part of the solution to our current economic crises. Could it help your business?

Forte Law has two former EI adjudicators on our team (lawyer Jim Wu and an external consultant with over 30 years at Service Canada), and we have prepared this blog to outline what we have learned about WorkShare.

What is the WorkShare program, anyway?

In its essence, where a business has an approved WorkShare program, a reduction in work can be spread across a number of workers, rather than individual layoffs. The workers continue with a mix of part-time work and partial EI.

Why have we never heard of WorkShare before?

The program has been in place for many years, but in recent time, it had only applied in the forestry, steel and aluminum industries. The application process was extensive and with turnaround time of 30 days on applications, it was not realistic for any organization looking to pivot and reduce labour costs quickly.

Enter WorkShare 2.0 (*our name, not the government’s)

The program is now open to businesses in any industry, as long as they have been in business for one year, are a private business, publicly held company or not-for-profit organization, and have at least two employees to spread work between in a “WorkShare Unit”.

The application process has been streamlined and the advertised turnaround time for approval is now 10 days, down from 30 days.

Could WorkShare save your business?

In its new and streamlined format, this could be a really viable solution to reduce labour costs for businesses who have had a slowdown, but not a complete shutdown. As with all government programs, there are limitations and parameters. It only applies to certain categories of employees and the reduction in work has to be 10% to 60%. One key requirement is that all impacted employees must agree and sign off on the application.

A distinct advantage for employees is that if they agree to a WorkShare and are later laid off entirely, their EI rate will be determined at their full normal wage. If an employee’s hours are reduced without a Workshare, and they are later laid off, the reduced earnings period may reduce their EI benefits rate.

Tips for WorkShare applications

In consulting with some former EI adjudicators on our team (now lawyers and consultants with our firm), we have the following practical tips for increasing your chance of success:

Don’t feel constrained by the small boxes on the application form (particularly boxes 17 and 26). If you don’t provide enough information, the reviewing officer may need to call you for more information. This creates delay. You may want to write “see attached” on the form and attach a document setting out more details.
Start with the basics. The person reviewing your application knows nothing about your business, industry or strategies. Don’t worry about talking down to them.
Put yourself in the program officer’s seat. They will be looking at a large pile of applications. Time taken to format your documents nicely, completing them on the computer rather than handwriting, and having them well organized will best position your application to be understood and approved quickly.

You may want to consider retaining a professional to prepare your application. You will need to provide the content, but if completing online forms and writing compelling letters is not your strength, or you don’t have the time to put into the application, we can help you to make sure your application is complete and well put-together.

Looking for more information or support in making your application?

The federal government’s information page is here: WorkShare Program.

You can contact our firm for general advice on WorkShare and other options to reduce labour costs, or for help preparing or reviewing your WorkShare application.

Date published: March 27, 2020

Covid-19, Layoff

So you have been laid off, what are your options?

News broke last week that more than 500,000 Canadians applied for EI within a few days. With layoffs rolling out widely as a result of the economic impact of Covid-19, we are writing this blog to provide some basic information on workers’ rights and options.

(The blog is relevant only to non-union workers in provincially regulated industries in professions/occupations/industries covered by the Employment Standards Act. This information will apply to most non-union workers in BC.)

You may not have to accept a temporary layoff

This might seem like a ridiculous statement. You cannot insist on keeping your job or getting paid, so by refusing a temporary layoff, what that likely means is your employment will end permanently. The upside to a permanent termination of employment is you may be entitled to severance pay, which can range from very little or nothing (if you have worked a short time in an entry level position) to up to 24 months’ pay (in exceptional circumstances). Talk to an employment lawyer to understand how much you might be owed, as it is fact specific and depends on the Employment Standards Act, your employment contract, and your age, length of service, nature of your job and availability of alternative employment.

There are some real downside risks to refusing a temporary layoff and hoping for severance pay.

Your job is over permanently, and you will not have a job to return to when your employer rebuilds capacity or reopens.
If your employer can prove that Covid-19 has been an unforeseen circumstance that has made continuing your employment “impossible,” it may be found that no severance pay is owed under Section 65(1)(d) of the Employment Standards Act.
Severance could be difficult or impossible for your employer to fund and if many employees refuse layoffs and insist on severance, this could be the last straw that makes them go under.
If your employer does not agree to pay, enforcing severance pay rights beyond the Employment Standards Act minimums will be slow and difficult in the coming months, with courts largely shut down.

If you accept the temporary layoff, apply for regular EI right away

There is a huge demand on our Employment Insurance system right now, so make sure you get your application in ASAP. While expansions of coverage have been announced, based on the EI system that has always been in place, you likely currently qualify for EI if you:

have been laid off due to shortage of work;
have at least 700 hours of insurable earnings in the last 52 weeks (700 hours is for the Vancouver region and the number of hours to qualify varies across the Province); and
have experienced an “interruption of earnings” which means no work and no pay for 7 days.

You can work to supplement EI after 7 calendar days of no work and no earnings

Once your EI begins, you can take on work to supplement EI. Remember, you must have 7 days of no work and no pay to be eligible for EI, so wait this out before taking on any work. Jim Wu of our office wrote a detailed article on LinkedIn about how working while EI impacts your claim here: https://lnkd.in/gYXbv7D. We will be posting this article on our website shortly.

If you accept a temporary layoff, it ends after 16 weeks

The BC Employment Standards Act limits temporary layoffs as a result of Covid-19 to 16 weeks maximum (extended from 13 to 16 weeks, effective May 4, 2020). At that point, employers will need to provide termination pay unless they have returned you to work. As discussed above, it is possible that Section 65(1)(d) of the Act will apply to mean no termination pay is owed if there is an “unforeseen circumstance” that has made continuing your employment “impossible.” This exception could also potentially apply at the end of the 16 week layoff period.

We have written a few other blogs on Covid-19 layoffs which you may also find helpful, available at https://fortelaw.ca/blog/

Covid-19, Layoff, Reasonable Notice

Covid19 Layoffs What are the Rules

Covid-19 Layoffs in BC – What are the Rules?

*This blog was revised effective May 7, 2020*

We have seen the economic impact of Covid-19 in BC, with industries like travel and many others in crisis. Layoffs have been happening in many sectors, and more could be coming. What are the rules? The rules about temporary layoffs have been well-established in BC for many years. The BC government has recently provided some guidance on how these rules should be applied during the Covid-19 pandemic. With our courts closed, it will be some time before we will be able to predict how judges will view this issue, taking into account Covid-19’s health and economic impacts.

Layoffs (permanent or temporary) generally trigger severance pay

In almost all employment relationships, it has long been the law that a temporary or permanent layoff triggers a worker’s right to severance pay and so is the same as termination, being “let go”, or “getting fired.” The primary exceptions to this have been temporary layoffs in industries where temporary layoffs are the norm, if you have a written employment contract that includes the right to temporary layoffs, or if the employee agrees to the temporary layoff. If permitted, 16 weeks (extended from 13 to 16 weeks, effective May 4, 2020) is the longest a “temporary layoff” can be per the Employment Standards Act before termination pay must be provided.

But what if Covid-19 has made the contract of employment “impossible to perform”? Read on.

Economics or financial circumstances of the business are not relevant, unless the employment contract is “impossible to perform” or the contract has been “frustrated”

To date, economic circumstances of the business have not generally been taken into account in determining whether or how much termination notice or pay is owed. Even if a business was closing, termination notice or pay was required, and the amount was not impacted. Now there is a question of whether a little-used section of the Employment Standards Act might apply to relieve the requirement for termination notice or pay for some businesses impacted by Covid-19. Section 65(1)(d) of the Act states that notice of termination or pay in lieu is not required when the employment contract is “impossible to perform due to an unforeseeable event or circumstance.”

The BC government has issued a statement saying that decisions about whether section 65(1)(d) applies during the Covid-19 pandemic will be made on a case-by-case basis. The exception may apply where a business closure or staffing reduction is directly related to Covid-19 and there is no way for employees to perform work in a different way (for example, by working from home). The exception will not apply if an employer terminates an employee for reasons that are not directly related to Covid-19 or if the employee’s work could still be done in another way (perhaps by working remotely). This means that in order for section 65(1)(d) to apply, the employer will still have to prove that the contract was “impossible to perform.” Impossibility is a high standard, and while it could be met for a business ordered to shut down, it may not apply where a business still has work and is rolling out layoffs in anticipation of future work slowing.

Section 65(1)(d) of the Act only applies to determine whether the minimum termination notice or pay of up to 8 weeks is owed under the Act. It is difficult to predict whether our courts will also find a way to relieve businesses from common law severance pay obligations.

There is speculation about whether Covid-19 may cause a “frustration of contract”. Frustration occurs in employment contracts where through no fault of the employee or the employer, the essence of employment (work in exchange for pay) is impossible. Prior to Covid-19, uncertain economic conditions or employer finances were not considered a “frustration of contract” to justify dismissal of an employee without notice or severance, but it is hard to predict what our courts will do in future with this.

How much notice of termination or severance pay is owed?

For most non-unionized workers, the amount of notice of termination or severance pay owed is based on the Employment Standards Act minimums, plus an additional amount for common law notice (unless limited by a valid contract). If an employer can prove it is impossible for the employment contract to be performed due to unforeseen circumstances, we may see the Employment Standards Branch, and even possibly our courts, finding no termination or severance pay is owed. If the “impossibility” standard is not met, then we expect the usual rules for calculating how much the employee gets will apply, which are summarized below.

Section 63 of the Employment Standards Act applies to set the minimums for notice of termination/severance pay, ranging from zero for workers who have been employed less than 3 months, to 8 weeks for those with 8 years or more of employment. Section 65 of the Employment Standards Act has higher notice requirements for group terminations of 50 workers or more.

Written employment contracts can put a cap on the amount of notice of termination or severance pay, but many contracts are invalid. Some common reasons for contracts failing are (1) if the contract was not signed before the employee started and nothing new was provided in exchange for signing the contract, (2) if the termination clause is vague or poorly worded, or (3) if the termination clause could fall below the Employment Standards Act minimums at any point.

If there is no valid employment contract, common-law notice/severance pay is applicable. The amount is determined based on the worker’s age, length of service, nature of their job and availability of alternative employment. As explained above, the financial circumstances of the business are not generally considered in determining the amount owed. In the event of an extreme industry downturn, there actually may be more notice or severance pay owed since the availability of alternative employment is considered.

Employees who are laid off have a duty to mitigate. That means they have to take reasonable steps to look for a new job, and whatever they are owed in common-law severance would be reduced by earnings from new employment during that severance period. Most of these cases never get to court, but mitigation is a key factor in negotiating packages.

What about working notice?

Employers are allowed to give working notice, which is a notice of termination at a specific future date. If they give enough advance notice, or the worker quits before their last day, no further severance pay is owed. This can be a cost-effective way for businesses to roll-out layoffs, as the workers continue to perform work and add value during the working notice period.

Economic circumstances may impact severance pay negotiations

While there is some uncertainty in whether the economic circumstances of the business will be taken into account in determining whether severance is owed, the practical reality is that businesses and workers may be able to agree to a severance package that is fair in the circumstances. If the business is truly unable to pay the amount of severance that might be owed, workers may decide to accept this and agree to less so that they at least get paid something.

Constructive Dismissal, Employment Contract, Privacy, Wrongful Dismissal

Recording conversations at work – will it get you in hot water?

We are regularly asked by employee and employer clients about secretly recording conversations (audio or video) at work. Some common questions we get are:

Is it legal to record conversations at work?
I think I am going to get fired, should I record the meeting?
What can I do with the recording, if someone is lying about what was said in the meeting?

With a smartphone in everyone’s pocket, it can be done with the press of a button, but should you?

Is recording conversations legal?

In Canada, it is not a crime to secretly record conversations as long as you are an open participant in that conversation. This is different from recording a conversation in which you are not an open participant. For example, planting your smartphone in an office on record, and then leaving the room and recording conversations between others while you are not there is not legal. That type of recording is not legal and could have criminal consequences. Don’t do it!

Secretly recording conversations is risky

Assuming we are only talking about recording conversations in which you are openly participating, in the employment context, should you do it? It is risky and here are some of the reasons why:

If you are an employee, recording conversations at work could be a violation of your employment confidentiality/privacy obligations, agreements or policies. Depending on the circumstances, you could be disciplined or even fired for making the recording. Even if your employer does not have policies against recordings, making secret recordings could be taken by your employer as a reason to fire you for cause. This is because of the trust that is needed in an employment relationship.

If you are an employer, you have obligations under privacy legislation to notify your employees that you will be collecting their personal information and the purpose of doing so before you do so. Making secret recordings could be the basis for claims against you including claims for constructive dismissal, breach of privacy and depending on the circumstances, aggravated or punitive damages.

Whether you are an employee or an employer, if you end up in court, you might have to produce the recording, even if it doesn’t help your case.

So, think long and hard before secretly hitting record at work. If you think you need to make secret recordings, this is a sign that there is a problem. You should consider whether there are more upfront strategies for dealing with the situation. If you have already secretly recorded a meeting and are involved in an employment dispute or expect to be, an employment lawyer can help you decide whether and how the recording can be used.

Employment Contract

Is a non-compete enforceable?

There is something about the start of a new year that gets our phones ringing with questions about non-compete clauses. The ball-dropping and new years champagne gets a lot of people thinking about changes at work. Whether you are an employer or an employee, thinking about ending a work relationship to move on to something new inspires a dusting off of employment contracts to see what is there. Here are some of the most common myths about non-competition clauses.

Myth 1 : Non-competes are never legally enforceable

This is common myth. Non-competition clauses can be enforced by courts in BC. It is true that employers face an uphill battle in getting a judge to agree to enforce a non-compete, but it can and does happen. If you are wondering whether your non-compete will stick, ask an employment lawyer. Enforceability of a non-compete depends on the specifics of the wording of the clause itself and the overall employment contract. Some key considerations are whether the clause is clearly worded, and whether it is limited in time, geography and scope of what is covered.

Myth 2 : Non-competes mean the employee can’t work for any competitor

We find that many employers and employees do not read the actual words of their contracts, and instead assume what is covered. If a non-competition clause is enforced by a judge, it will only be applied to prevent the employee from the specific activities listed. If the employer has missed something from the clause, or there is a “loop-hole,” that is generally fair game. Wondering what an employee can or can’t do post-termination? Read the clause.

Myth 3 : Non-competes are the only way to stop an employee from competing post-termination

Non-competition clauses are only one way to stop an employee from competing. Many contracts include non-solicitation (aka non-solicit) clauses, which are meant to prevent the employee from contacting clients. Non-solicitation clauses are still an uphill battle to enforce, but slightly easier than a non-competition clauses. This is because non-solicits don’t dictate where an employee can work, just what business they can seek out. Even if there is no contract, obligations to respect confidential information, and fiduciary duties (in the case of key employees) last beyond the end of employment and can limit competition.

Wondering whether your non-compete is enforceable? An employment lawyer will be able to tell you. At our firm, in a flat-fee consultation, we can review your contract, advise you on legal enforceability, and work with you to make a plan of how to deal with it going forward.

Human Rights, Sexual Harassment

Sexual Harassment – Is reporting a career-limiting move?

Sexual harassment is back in the news for the second time in 2017. In January, we blogged on this issue when the allegations of harassment against Donald Trump were in the news, and now it is the entertainment industry and the #metoo hashtag is trending.

It is not a surprise to us at Forte Law that workplace sexual harassment is widespread. We see clients almost every week who have been sexually harassed at work. So far, it has only been women who have sought our advice, but it can happen to men too. The harassing conduct itself seems endless in its variety, from “compliments” of a sexual or suggestive nature, to propositions with negative consequences for refusal, and even some clients who have been repeatedly sexually assaulted at work. There is no doubt that most workplace sexual harassment goes unreported. Many clients only reach out to us after weeks, months or even years have passed. Most of our clients who have experienced sexual harassment are concerned that breaking their silence will be a career-limiting, or even a career-ending move. Silence is not the only option.

Talking to a lawyer is confidential

Some clients worry that their employer or harasser will find out that they contacted us. Any information that you share with a lawyer in a lawyer-client relationship is confidential. We are required by our rules of professional conduct to maintain confidentiality. Consulting a lawyer is not breaking silence. After speaking to an employment lawyer about the options, you can decide that you would like to keep the harassment to yourself. That is your right and you maintain that control.

There are lots of ways to deal with sexual harassment

When we advise clients who have been subjected to workplace sexual harassment, we first find out their goals. Those goals are unique to each client, and often depend on whether the client is still working for the company where the harassment occurred. We always review the options for legal action, and there are several. The most common forum for legal action is a Human Rights Complaint to the BC Human Rights Tribunal. The Tribunal has broad powers to award remedies for sexual harassment, which include financial remedies but also reinstatement of employment and other types of awards. Sexual harassment can also be constructive dismissal of employment, if the environment is so hostile that you have to quit. Constructive dismissal can be pursued with a civil claim (lawsuit) for wrongful dismissal. Worksafe BC can also address sexual harassment. Some forms of sexual harassment including sexual assault are criminal and can be reported to police.

Starting legal action is only one of many ways to deal with sexual harassment at work, and is generally a last resort. Other ways to respond to harassment include telling the harasser to stop, finding an ally in the organization to confide in confidentially, making a complaint through an internal harassment policy or leaving the organization for a new job prior to reporting. We have had several clients over the last few months who have reported sexual harassment to their employers after consulting with us, and the employers have stepped up and tackled the issue.

Thinking about getting legal advice? Don’t wait.

There is a deadline of one year to file a Human Rights Complaint about workplace sexual harassment with the BC Human Rights Tribunal. This is within one year of the last incident of harassment. There are some circumstances where complaints have been accepted past the deadline, but in most cases, they are not. One year can pass quickly. Don’t wait to seek advice, and don’t worry about being judged because you are not alone.*

*this blog has been updated. The BC Human Rights Code now allows complaints to be made within one year (rather than within 6 months).