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).

Human Rights

BC Human Rights Commission – What will this mean for our province?

On August 4th, 2017, the BC Government announced that it will be re-establishing a BC Human Rights Commission. This is huge news for human rights in our Province, and here is why.

Some history

BC historically had both a Human Rights Commission and a Human Rights Tribunal. The human rights complaint adjudication process was heavily criticized for delay, and in 2002, the decision was made by the BC government at the time to eliminate the Commission. This eliminated a step in the complaint process, as complaints at that time went to the Commission first, then to the Tribunal. Since 2002, our province has had a direct access system, which means complaints are made directly to the BC Human Rights Tribunal. The elimination of the Commission left BC out of step with the other provinces, who all have commissions, and also meant that the other functions of the Commission, for example outreach, policy and education, were no longer happening. A number of groups have been lobbying for years to have the Commission reinstated.

Looking to the future

What does this announcement mean? The government has stated that the intention is to form a commission that can take proactive steps to address systemic inequalities and prevent discrimination. This would be a seismic shift from the current direct access model, which does not engage in proactive work. While the Tribunal does publish some summary information about human rights online, it’s primary function is to address complaints of discrimination as they are filed. Much about the future Commission remains to be determined, however, starting with a consultation process that begins in September. Front and centre in that consultation will undoubtedly be the issues of delay and timeliness. Not all provincial human rights commissions have the same functions, and roles can include processing of complaints, but also outreach, education and policy development.

As labour and employment lawyers, a large part of our practice is advising employees and employers on workplace human rights. We frequently represent clients before the BC Human Rights Tribunal. We are concerned about more delays in an already lengthy and costly process. That said, it would be very useful for our clients to have a Commission to provide information and education on human rights issues. We often refer clients to the helpful, plain language publications by the Ontario Human Rights Commission, but always with the caveat that human rights laws vary province to province. A great example is the Ontario Human Rights Commission's brochure on gender identity and expression, which is very helpful for employers and employees trying to understand their rights and obligations related to the protected grounds of gender identity and expression. It would be useful for similar BC-based resources to be available.

I will certainly be engaging in the consultation process and following this development closely. I will post updates to my blog, if you would like to follow.

Duty to Accommodate, Wrongful Dismissal

Sick and fired? The duty to accommodate explained.

At Forte Law, one of the most common work problems that brings clients to see us is disability in the workplace. We meet with employer clients who are struggling with how to manage employee medical issues that are impacting the workplace. We also meet with employee clients who have been fired from their jobs after getting sick. Sometimes an employee has been fired during, or following a medical leave or when they request changes to their duties or schedule to accommodate medical limitations. Every week, we work with several clients who are facing this stressful situation.

The good news is that the law is clear. Employers in British Columbia have a duty to accommodate employees’ physical or mental disabilities. This means that if an employee has a disabling condition, the employer must consider what can be done to maintain the employment relationship before firing them. In most employment relationships, the duty to accommodate could include allowing employees to take leaves from work for treatment and recovery, or considering modifications to duties or work schedules.

There are limits to what lengths employers must go to in accommodation. If an employer can demonstrate that the changes required would be undue hardship for its business, for reasons that can include financial costs, or other business impacts then it has reached the end of the duty to accommodate. Employers are not required to hold positions open forever when an employee is on leave, but decisions to terminate must be based on a careful assessment.

The duty to accommodate is a two way street. Employees are also required to participate in the accommodation process. Employees must provide medical information, maintain contact while away from the workplace, and be open and flexible about ideas on how their medical limitations could be accommodated at work.

The bottom line is, if you have been fired or “laid off” in any part because of a medical leave or limitations on your ability to work, you should seek advice from an employment lawyer. This is a stressful time, and we can help you find a path forward. We will make sure you understand your rights, and in most cases we are able to help our clients negotiate a settlement that lets them move on with their lives.

Similarly, if you are an employer, and thinking about letting someone go while they are on a medical leave, you should definitely seek guidance from an employment lawyer. We can ensure that you understand your obligations and risks, so that you can move forward in a manner consistent with the Human Rights Code.

Reasonable Notice, Severance Package, Wrongful Dismissal

Fired, now what

Wrongful Dismissal 101

Without a doubt, the most frequent questions that I get from employee clients are about their rights once they have received a termination letter. I have reviewed many, many severance packages for employees. I also work for employers to prepare termination letters and severance offers. This blog post contains some of the questions frequently asked by employees and my answers.

Q: I didn't do anything wrong, can my employer fire me?

Yes, employers can terminate your employment "without cause." Even if you are a stellar employee, an employer can still decide to fire you. There are exceptions to this, for example, if you are being fired because you are pregnant or another reason that engages human rights protections. When terminating "without cause" employers have to provide reasonable notice of termination, or pay in lieu of notice (a severance package).

Q: Is termination pay as required by the Employment Standards Act enough?

Not unless there is a (valid and legally enforceable) written contract between you and your employer that says they can terminate on providing only the notice set out in the Employment Standards Act, and no more. The Employment Standards Act establishes minimum standards, including for termination pay. Much more severance pay is often owed.

Q: Is my employer required to give me a reference letter?

There is no legal requirement for employers to provide a reference letter. This is something that can often be negotiated as part of a severance package. Even if there is no negotiation over severance, it never hurts to ask for a reference letter. Consider asking the manager or supervisor you worked with most closely. They are more likely to provide a reference letter than HR, and the reference will be more useful because they know your work.

Q: How much will it cost to get my severance package reviewed?

In many cases, I can review, assess and give solid advice about a severance package offer in an initial consultation for a flat fee. After consulting with me, you will either have peace of mind, knowing that the package is fair and reasonable, or you will know exactly why and by how much the package is short, and have a plan to negotiate improvement.

Employment Contract, Severance Package

Employment Contracts – Don’t try this at home, folks

I spend a lot of time talking about employment contracts. This is because employment contracts can define rights under employment law, particularly at the time of termination of employment. When an employee is fired, without cause, the answer to how much severance pay is owed can be very simple if there is a valid and enforceable termination clause in an employment contract.

Many written employment contracts have termination clauses that are invalid or not enforceable. The Ontario Court of Appeal has recently issued a decision finding that a termination clause was not valid in Wood v Deeley. This decision considered two common challenges to termination clauses.

1. contract was provided after the employee's start date

This is a common mistake that many employers make. For a contract to be binding, each party has to receive "consideration," or something of value. There are ways to cover this and put a new contract in place for a current employee, but I strongly recommend to employers that contracts be provided to prospective employees, and returned with a signature, before the start date.

2. contract does not meet the Employment Standards Act minimums

This is why the Ontario Court of Appeal refused to enforce the termination clause in Wood v. Deeley. If the amount of pay or notice in the contract could fall below the minimum termination notice required by the Employment Standards Act, a court will not enforce it. Unfortunately, this is not easy for a non-lawyer (or even sometimes for a lawyer!) to determine.

Don't try this at home, folks! When to get advice?

Employees should get legal advice when they are given a written contract to sign. An employment lawyer can help you understand what you are signing and may be able to help you negotiate a better contract. Employees should also get advice when their employment is terminated. Even if it looks like your contract states what you will get for severance pay, it may not be valid, and you could be entitled to much more.

Employers should get legal advice before they hire a new employee. An employment lawyer can help you put together an employment contract that is valid and enforceable, and give you advice on how to properly implement it. This is tricky for a non-lawyer to do right, but can actually be nailed down with a small amount of legal guidance. If you don't deal with that upfront, you can have an unpleasant surprise of a legal claim for a large severance package down the road.

Discipline, Family Leave, Human Rights

Snow Day! Fun for kids, working parents and employers, not so much

Many working parents around the lower mainland woke to their alarms today ready for the usual routine - get yourself ready for work, get kids ready for school, and get everyone out the door. As a mom of three, this was my morning plan. But then... snow day! Schools are closed (insert joyful cheering children)! This is a great day for kids, but for working parents and the businesses that employ them, it is a huge headache. As an employment lawyer, here are some questions that I get about missing work on snow days.

Can working parents be disciplined for missing work where there is a late notice snow day?

Parents are legally obligated to care for their children, or arrange for alternate supervision. If your child is a kindergartner, leaving them home alone while you are at work is not an option. If a working parent has had short notice of a school closure, and can't find alternative childcare, it would be very hard for an employer to justify discipline. I always try to stand in the shoes of a judge when considering these questions, and I don't think a judge would find discipline appropriate.

Another key consideration is the BC Employment Standards Act, which requires employers to provide for Family Responsibility Leave of up to 5 days per year, for situations that can include the care of a child. This does not require an employer to pay, but the leave must be provided.

There are always exceptions where discipline could still result, for example where the employee has a longstanding pattern of absenteeism issues, or does not follow employer policies to call in and notify of an absence.

Employees who are disciplined for reasons arising from their childcare obligations could also have an argument that this was in breach of the BC Human Rights Code. One of the protected grounds under the Human Rights Code is "family status." While the law in BC has interpreted family status narrowly when it comes to childcare obligations, it is ripe for challenge based on how the law has developed in other provinces.

Do employers have to pay employees who can't make it to work because of school closures?

The essence of employment is work in exchange for pay, so in general, no. The clearest example is an hourly paid employee. If you don't work the shift, you don't get paid. Some employers might let employees use vacation or sick bank, or make the time up, but that is not legally required.

I have advised a few very progressive employers lately who offer their employees a set number of paid "personal days" to use each year. These are for personal emergencies, such as late notice school closures. Employers are not legally required to provide personal days, but it is a great benefit to offer to attract and retain good workers.

Flexibility is Key

In my view, flexibility is needed by all when mother nature intervenes. Employers can be flexible by allowing employees to work from home (if possible given their role), or make up the time. Employees can be flexible by doing their best to make childcare arrangements, offering to work from home, or shifting their hours.

And when all else fails, go sledding!!

Layoff, Severance Package, Wrongful Dismissal

Layoffs, Restructuring, Terminations, Oh My

When is Employment Terminated?

I answer many questions from employee and employer clients about what happens to the employment relationship when someone has been laid off, or let go due to a restructuring or shortage of work. This is never a happy time for businesses or workers. Employees want to know, have I been fired if the letter says it is a lay off? Employers ask, do we need to provide notice or severance pay if we are in financial hardship? The answer to both questions is in most cases, yes. This blog post applies only to non-unionized employees in British Columbia.

The letter says laid off. Have I been fired?

The answer to this question, in most cases, is yes. The essence of a job is that the employer provides work to be done and pay, and the employee does the work. In a lay off, the employer is no longer providing work to be done or pay, so in most cases, employment has ended.

Employers can lay off an employee, without effectively terminating employment, if:

the employment contract expressly allows for temporary layoffs;
layoffs are a well-known and longstanding industry-wide practice (for example, logging where work cannot be performed during a "break up"); or
the employee agrees to the lay off.

Even if one of these conditions apply, the layoff must be short-term and temporary. In the non-union context, Section 1 of the BC Employment Standards Act limits the length of temporary lay offs of a maximum of 13 weeks in any period of 20 weeks.

If you don't fit into one of these conditions, a lay off of any length is the same as a termination of employment.

We are laying off an employee because we need to downsize to stay afloat, do we still have to give notice or severance pay?

The answer to this, in most cases, is yes. Unless you fit into one of the three categories above, a lay off is the same as termination of employment "without cause." This means that reasonable notice of termination, or pay in lieu of that notice (aka severance pay), must be provided. Unless there is a bankruptcy or similar legal process underway, the financial situation of the employer does not impact the requirement to provide notice or pay severance.

Employer Policies, Human Rights, Sexual Harassment

Sexual Harassment – BC law is clear even if the news is not

Human Rights Basics Series

I have advised many clients about sexual harassment issues since I began practicing law in 2004. It never ceases to amaze me the things that people think it is OK to say and do at work. The news stories and debate about sexual harassment during the Trump campaign confirmed to me that there is still a need for education and information on the important issue of sexual harassment. In BC, the law is actually pretty clear when it comes to workplace sexual harassment.

Workplace Sexual Harassment is Against the Law

Now, that has got to be one of the most simple and straightforward statements that a lawyer has ever made. In British Columbia, one of our provincial laws is the BC Human Rights Code. Section 13 of the Human Rights Code states that discrimination at work based on sex (among other things) is not allowed. This makes sexual harassment at work against the law.

Elements of Workplace Sexual Harassment

The basic elements of the legal definition of workplace sexual harassment in BC are also not under debate. The elements were established by the Supreme Court of Canada in 1989 in a case called Janzen v. Platy Enterprises Ltd., [1989] 1 SCR 1252, as follows:

Sexual harassment in the workplace is unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job‑related consequences for the victims of the harassment.

Unwelcome Conduct

For conduct to be sexual harassment, it must be unwelcome. I often get the question, if coworkers are involved in a romantic or sexual relationship, is this sexual harassment? The Human Rights Code does not prohibit consensual relationships at work, as they are welcomed by both participants.

Conduct of a Sexual Nature

Sexual harassment takes place in many forms and can include everything from comments, emails, texts or sexual jokes to sexual propositions, persistent romantic pursuit, sexual touching or assaults.

Negative Impact on Work or Work Environment

Workplace sexual harassment has a negative impact on the victim. The negative impact can take many forms, from embarrassment and humiliation, to termination of employment, or differential treatment at work.

What to do about Workplace Sexual Harassment

Every workplace should have a harassment policy. If you are an employee dealing with sexual harassment, the first thing to do is look at your employer's harassment policy, which should set out a process for dealing with harassment and making a complaint. You may also want to consult with your union or an employment lawyer (like me) for advice.

If you are an employer, and you don't have a policy dealing with sexual harassment, you should speak to an employment lawyer (like me) about putting one in place. A policy including an internal harassment complaint process gives employers the chance to address these issues quickly and internally, rather than employees having to resort to complaints to the BC Human Rights Tribunal.

Tags: Workplace BC, BC sexual harassment law, Human rights bc workplace, BC work laws, Sexual harassment workplace, Sexual harassment laws BC

Constructive Dismissal, Resignation

Take this job and shove it

New Year, New Job - An Employment Law Perspective

Resolve to quit this year? I have advised many employees who are in a bad work situation, or have found a better job or business opportunity, and are ready to resign. Before you throw in the towel, here are a few key legal issues to consider:

Could this be a constructive dismissal?

If you are quitting, not by choice, but because of fundamental changes to your job to which you did not agree, this could be a constructive dismissal. If you have no choice but to quit because of a hostile or intolerable work environment, this could be a constructive dismissal. The threshold is pretty high - the changes have to be significant. It can be hard to prove that an environment is so hostile that you had to quit.

If it is a constructive dismissal, even though you are quitting, you might be entitled to severance pay. If you think a constructive dismissal is forcing you to quit, I recommend that you get legal advice before you hand in your resignation letter.

How much notice do I need to give?

I get this question a lot. The first thing I do is look at the written employment contract (if there is one). Some employment contracts specify the amount of resignation notice that the employee has to provide. If there is nothing in the contract, then I look at employer policies (if there are any). If there is a contract or employer policy that states the amount of resignation notice they expect, it is usually safe for an employee to follow that.

If there is no contract or policy, I explore with my client what is reasonable in the circumstances of their job. How difficult will it be for the employer to transition their work? 2 weeks notice is enough in many situations, but in some cases, less or more notice might be appropriate. It is also worth considering whether there might be some strategic advantage to providing a longer period of notice.

Can I take customers or company information with me?

This is a hot button issue for employers. If you are thinking about secretly copying or taking information, the fact that you are hiding it is a sign that it is probably a bad idea. You owe your current employer a duty of loyalty while you are still employed, and you may have duties that extend even after you have left. Some employment contracts contain "non-solicitation" or "non-competition" restrictions that limit what you can do for a period of time after you leave. These may or may not be legally enforceable. If you have this type of contract, or if you plan to take customers or company information, I strongly recommend getting legal advice about your rights and obligations, and the potential consequences.

Timing is important

There is rarely a perfect time to make a change, but it is important to consider what is on the horizon. Is there a bonus payment coming up? If it is a matter of a short delay, you may be better to wait until you have that money in your account before you resign.

Leaving on a good note

While the "take this job and shove it" approach can be appealing, it is not one that I recommend. It is always better to leave on a good note if you can. If you are feeling emotional, which is normal, it can help to put together a written resignation letter. Email is fine, but you should take time to carefully consider the wording and message that you are sending.

Or ignore all of the above and maybe you can be the star of the next funny quit video compilation on YouTube:

(Author has no connection to YouTube video creator, just googled funny quit videos, found this and laughed).

YOUTUBE QUIT VIDEOS

Legal Advice

Top 3 Reasons to Get Legal Advice

Is a career move on your resolutions list for 2017?

Here are the top 3 reasons why you should get legal advice before you accept an employment offer:

You will understand what you are signing. Even if the contract is truly non-negotiable (I will get to this later), it is so important to read and fully understand what you are signing. The general rule is that you are stuck with what you have signed, and a judge will not accept "I didn't read it" or "I didn't understand it." I can help translate the "legalese" to eliminate nasty surprises down the road.
You may be agreeing to limitations that last longer than the job. Many contracts include obligations that last well beyond termination of employment. These can include significant restrictions on your ability to work for competitors, or to solicit customers. Depending on the wording, these restrictions may or may not be legally enforceable, and it is best to get advice on this BEFORE you agree to them.
You may be able to negotiate a better package. Very few employees make any attempt to negotiate employment offers. In my experience, a reasonable counter-offer, presented respectfully, can get results. I can help by objectively assessing your negotiating position, developing a negotiating strategy and script, and coaching you through the negotiation. Any increase you can get in your package will have compounding results, year after year of employment, and makes for great return on investment for your legal costs.

I am looking forward to helping my employee clients reach their career and financial goals in 2017 by reviewing and negotiating employment offers.