Four Things to Consider When Adopting a Parental Leave Policy

Employers typically consider maternity and parental leave policies when they want to incentivize employees to return from their leaves after having a child, and also when they realize that supporting their employees financially while on a period of a reduced income makes sense for long term employment relationship. Particularly, in the current Canadian job market which has been described as a “candidate” job market. Here are four things to keep in mind:

1. Is a policy necessary?

Unless there is anything additional or extra that you are providing your employees, your workers may already be protected by B.C.’s Employment Standards Act (the “Act”) (see sections 50 and 51), and the Employment Insurance (EI) regime. If your workforce is excluded from the Act (as are architects, engineers, lawyers, naturopaths, insurance agents, and others) you can still use the Act as a reference for how to manage these types of leaves[i].

2. What you need to know to get started.

If you decide that your organization needs a policy, make sure you understand the difference between:

    1. Maternity Leave, which includes an EI benefit maximum of 17 weeks. This benefit is for the person who is about to, or has, given birth; and
    2. Parental Leave, which includes an EI benefit maximum of 35 weeks (“standard”) or a maximum of 61 weeks (“extended”). This benefit is for either parent, or for adoptive parents.

Keep in mind that the parental leave can be taken once the maternity leave has expired, turning the standard leave into 52 weeks, and the extended leave into 78 weeks (18 months). Also keep in mind that Parental leave can be taken at any time within the first 18 months of the child’s life, or the first 18 months of the child being placed with the adoptive family.

3. Will you top up?

If you are providing your employees with a supplementary amount to their EI benefit, or “Top-UP” a policy is definitely recommended. Consider:

a. The reasons behind providing the Top-Up. If your goal is to incentivize parents to return from the leave and to stay with your organization, say so in the policy. Also, a repayment clause may be appropriate. For instance, “should you resign during the leave, or in a period of 6 months from your return from leave, you will repay the amount of the Top-Up in full”.

b. The amount of the Top-Up. Crunch the numbers and determine how much you can afford and for how long you will provide the Top-Up. Also consider what your competitors are doing. Some employers provide 60% of the difference between the employees’ pay and the EI benefit. Others provide much higher percentages, with some employers toping up to 100% of the wages. The period of time can also vary from 6 weeks on the lower end, to the full 78 weeks at the higher end, with most employers capping the top up somewhere between 35 weeks and 52 weeks. Because you will need to know how much the employee is receiving in EI to calculate the Top-Up amount, it makes sense for you to make the employee’s receipt of the Top-Up on the condition that they receive EI.

c. The eligibility for the Top-Up. Is this something you want to provide to all employees as of day one? Or something you want to reserve for your permanent full-time employees with a certain amount seniority? Since this is not a benefit that is required under the Act, you have flexibility as to who gets it and when, as long as you are not running afoul of the B.C. Human Rights Code.

4. What should happen while the employee is away.

If your workforce is covered by the Act, then you need to ensure to continue to calculate annual vacation, to continue benefits and to count their time away to their length of service with your organization, as if the employee was actively at work during that time. If the employee paid some of the premiums for the benefits, you can arrange for the payments to continue to be made by the employee while they are on leave.

Also, upon the end of the leave, employers have an obligation to provide the employee with their same position or an equivalent one. Make sure that anyone you hire to cover the employee that is on leave is hired under a temporary employment agreement with a notice of termination provision that allows you to welcome the employee on leave back without delay.

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

[i] The information in this blog applies to workplaces that are provincially regulated and does not apply to workplaces that are federally regulated (i.e. banking, shipping, telecommunications) and covered under the Canada Labour Code (“CLC”). The maternity and parental provisions of the CLC are similar to those of the Act, and can be found at sections 206, and 206 of the CLC.

A Win for Mom – tribunal finds employer discriminated against employee on maternity leave

The Human Rights Tribunal recently found that Prince George Ford (“Ford”) discriminated against new mom Mellissa LaFleche based on sex and family status contrary to the section 13 of the Human Rights Code.  

While on maternity leave, employee Ms. LaFleche went to her employer, Ford for a meeting about her return to work. It was an informal meeting and Ford had not thought through what it was going to say. There was conflicting evidence about what Ms. LaFleche was told at that meeting, but the Tribunal found:

  • “the clear inference from this discussion is that, at best, Ms. Callaghan [the woman filling in for Ms. LaFleche during her maternity leave] would retain marketing manager duties and Ms. LaFleche’s role would significantly change”, (paragraph 44).
  • “It was clear from the surrounding discussion that [Ms. LaFleche] would not be returning to the same duties and role…” (paragraph 45).
  • LaFleche felt humiliated, distressed and nervous about money and lost sleep, her appetite, a sense of security and enjoyment of maternity leave (paragraph 50).

Ford told Ms. LaFleche that it would follow up with her after the meeting about what position or duties it would have for her on her return, but it did not.

The Tribunal considered whether Ford had constructively dismissed Ms. LaFleche – constructive dismissal is a form of termination of employment that occurs when an employer fundamentally unilaterally changes the terms of employment – and concluded Ford had. It ordered Ford to pay Ms. LaFleche significant wage loss damages (about $70,000 less about $3,750 already paid to her) and injury to dignity damages ($12,000). Notably, the award for wage loss damages included both actual wage losses of about 7.5 months wages (about $40,000) and loss of maternity and parental benefits during Ms. LaFleche’ next year long maternity leave (about $30,000).

Take-aways:
  • Moms / New Parents:  Being told by your employer that they like your replacement better and you’ll have different duties on your return to work is discrimination.
  • Employers: absent reasons totally unrelated to the employee’s leave, you need to return employees to the same position they held before going on leave. Think carefully about what you say to employees on leave and about how they could take it.

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

Mandatory Vaccines for Regulated Health Care Practitioners

Updated: March 21, 2022

The BC Government has revised its plan to mandate vaccines for all regulated health care professionals.  On March 10, 2022, the BC Public Health Officer announced that they will be moving forward with an “informed consent” system for some health care workers which may require disclosure of vaccination status to patients or clients. The new Order was issued on March 7, 2022 and requires regulated colleges to record each registrant’s vaccination status by March 31, 2022.    Vaccination will still be required for health care workers practicing in certain settings. 

 

The landscape of employment law continues to change as BC brings in new measures to manage the ongoing COVID-19 pandemic.  This time, the change affects employees and employers working in regulated health care professions.  

On February 9, 2022, the BC Public Health Officer expanded its vaccine mandate to include health care workers like dentists, chiropractors and other practitioners who are governed by a regulatory college.   According to the new announcement, workers who get a first dose of the vaccine by March 24, 2022, and a second dose between 28 and 35 days after, may continue to work.  

The BC Provincial Health Officer is finalizing the order in consultation with the health professional colleges and further details will be provided about how the vaccine mandate will be rolled out.  As we’ve seen with other government mandates, workers who fail to get vaccinated by the imposed deadline may be terminated or placed on unpaid leave. 

We have worked with many dentists and other regulated health care professionals to navigate the twists and turns of the COVID-19 pandemic, and this will be another challenge for employers to tackle.  That is because government vaccine mandates do not eliminate all risk associated with terminating a worker who refuses a vaccine.  There are a number of aspects to mandatory vaccines that must be handled carefully, including medical exemptions and the privacy of workers’ personal information.   We may see health professional colleges taking a lead role in collecting information about vaccination status and investigating instances of non-compliance, however this does not replace an employer’s legal obligations.  Here are the top three things that those working in a regulated health care profession should know:

 

1. The employer has a duty to accommodate in some circumstances.

In rolling out vaccine mandates, even if they are government ordered, employers still need to consider their responsibilities to workers under the Human Rights Code.  Employers have a duty to accommodate workers who can demonstrate that they are unable to be vaccinated for reasons protected by the Human Rights Code (for example, disability or religion) to the point of undue hardship. In deciding whether it is undue hardship to continue employment of an unvaccinated worker, employers must consider the personal circumstances of the worker, and take into account the safety of the workplace and the requirements of both the government and their regulatory body. 

 

2. An employee’s vaccine status is sensitive health information.

As healthcare practitioners know, personal health information must be handled with care.  This includes vaccine status. The Personal Information Protection Act allows private sector organizations to collect, use, and disclose an employee’s personal information for limited purposes, if appropriate safeguards are in place. This means that employers must have a designated process for protecting the privacy of information about vaccine status which also complies with the requirements of their respective regulatory colleges.  These privacy obligations extend to prospective employees who are applying for a job and are asked to disclose their vaccination status. 

 

3. Mandatory vaccine policies should be drafted carefully.

Employers in a government-mandated industry should have a written vaccine policy that complies with all BC public health orders and is applied consistently.   This policy should address what will happen when a worker has a qualifying exemption and is unable to be vaccinated.  There should also be a clear process for how to collect, use and protect each employee’s private information.

A full list of health care professions affected by the order can be found here

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

Workplace investigations under the Canada Labour Code

Federally-regulated employers (which include banks, airlines, transportation and telecommunication companies amongst others) had to adjust to new ways of dealing with harassment, bullying, discrimination and workplace violence allegations as of January 1, 2021, with the enactment of the Workplace Harassment and Violence Prevention Regulations under the Canada Labour Code. 

Federally-regulated employers have always had an obligation to investigate complaints, but there are some new and challenging requirements of the 2021 Regulation. These include:

1. Prescribed timelines.

These timelines are not too tight, but having to keep an eye on them is an adjustment. For instance, acknowledging receipt of the concerns within 7 days, starting the investigation within 45 days, keeping the parties informed of the status of the investigation with monthly updates, and completing the investigation within a year. The kicker is, the one year includes fully implementing any recommendations from an investigator’s report. Depending on how detailed those recommendations are, and the size of the workforce or the amount of people involved, one year may be a tight deadline.

2. Representation.

Non-unionized employers will have to remember to inform the parties that they may be represented through the investigation process, and not panic if the respondent brings legal counsel to the interview.

3. Expertise.

If you are investigating, you must be an expert. HR folks take note. The Regulations require you to be trained in investigative techniques, and that you know the law, both the Canada Labour Code and the Canadian Human Rights Act.

4. Appointment process.

Who gets to investigate is now subject to approval by the policy committee in your organization, or by the health and safety representative (referred to by the Regulation as the “Applicable Partner”). You can develop a list of investigator names and have that list approved by the Applicable Partner, so all your internal investigations people can continue to do their job as they were before. If you don’t create that list, the Regulations give the complainant and the respondent the prerogative of choosing who investigates, though they must agree on a name. From a practical perspective, this last option can be difficult to implement. These are two people who no longer see eye to eye, and it is unlikely they will agree on the issue of appointing an investigator. If the parties can’t agree, the government can provide an investigator from their own list of experts.  

5. Conciliation.

You have to offer the parties an alternative to a formal investigation. The Regulation speaks of resolution via “conciliation”. The term is not defined by the Regulation, though is generally understood to mean a way of resolving a dispute with the assistance of a third party. Some employers are wondering what exactly is expected, and what the costs would be to hire external conciliators or train their own HR on conciliation techniques. When the allegations are related to sexual harassment, it is important to carefully consider how an offer of conciliation will made, what the format of that conciliation would be, and how it could be triggering or re-traumatizing for the complainant.

6. Former employees can bring complaints too.

They have 3 months to do so after the end of their employment. However, employers need to remember that their obligations to investigate concerns do not arise only under the Canada Labour Code. There is the possibility of liability under the Canadian Human Rights Act for not investigating, even if the employee is no longer with the organization, or has left longer than 3 months ago.

7. The content of the investigation report is now prescribed.

The report has to mention the circumstances in the workplace that contributed to the harassment and make recommendations on how to prevent similar occurrences (so investigators have to put their minds to systemic and workplace culture issues). Reports must not reveal the identity of the parties and a copy must be provided to both the complainant and the respondent, as well as to the Applicable Partner. Investigators need to be very cautious in their writing of the report. Sometimes the most careful of redactions can still reveal enough information that any of the recipients could piece together on who did what to whom and when and who testified against them. Describing titles, relationships or departments/locations in the report may reveal the identity of the parties. The employer must keep a copy of the report for a period of 10 years, which is longer than the regular 7-year period for business records, so make sure you make the necessary arrangements to avoid premature destruction.

8. Government reporting.

If you were already keeping solid records of all the concerns brought forward by employees, or your HR management system already provides you with case management and fulsome data in relation to concerns, congratulations. You may be halfway there. In addition to the already existing requirement to submit annual reports on all hazardous occurrences in the workplace, the government is now looking for the following things by March of each year:

  • the total number of occurrences,
  • the number of occurrences that were related to sexual harassment and violence and non-sexual harassment and violence,
  • the number of occurrences that resulted in the death of an employee,
  • if known, the number of occurrences that fell under each prohibited ground of discrimination set out in subsection 3(1) of the Canadian Human Rights Act,
  • the locations where the occurrences took place, specifying the total number of occurrences that took place in each location,
  • the types of professional relationships that existed between the complainant and respondent, specifying the total number for each type,
  • the means by which resolution processes were completed and, for each of those means, the number of occurrences involved, and
  • the average time, expressed in months, that it took to complete the resolution process for an occurrence.
 
9. Penalties for non-compliance.

HR and management in charge of workplace investigations need to pay close attention to the new requirements in the Regulation and adjust their investigations and related processes accordingly. The government has a non-compliance approach that always starts with a request to voluntarily comply. Continuous non- compliance will lead to monetary penalties and the publication of the employer’s name in certain circumstances.

Catalina Rodriguez has experience as a workplace investigator in the Federal sector.

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

Responding to wrongful dismissal claims

Last week, the Globe and Mail reported that “scores of unvaccinated workers are filing wrongful dismissal claims against employers”. I have represented employees and employers at various stages of wrongful dismissals, from settlements to trials, and I have been getting many inquiries from employers asking how they should respond to wrongful dismissal claims. Below are my top 3 frequently asked questions and answers.

Q1: I received a letter from a former employee’s lawyer asking me to pay money. What should I do next?

Check to see when you need to respond by. If you only have a few days left, respond to the lawyer and tell them you are in the process of finding a lawyer and need more time – almost 99% of all lawyers will likely say “yes”. It is always easier, quicker, and cheaper for both parties to settle than to go to Court. By telling the lawyer you are getting legal advice, you are telling them that you are taking this seriously and that you want things to resolve as quickly, easily, and cheaply as possible. However, settlements require both sides to compromise and that’s why you need to speak to a lawyer who will tell you both the strengths and the weaknesses of your case and how much it will take for you to take your ex-employee to court versus settling.

Q2: I fired my employee for just cause because they refused to comply with our vaccination policy. Do I have a case?

We cannot give you a firm “yes” or “no” to this question. The reason why is because the question of whether an employer has just cause for termination is highly fact-dependent. Just cause for termination involves a two-step process where the employer must establish that the employee committed some form of misconduct, and that form of misconduct was serious enough to damage the employment relationship beyond repair.

To date, there has been no court decision anywhere in Canada that has ruled on whether non-compliance of a COVID-19 vaccination policy amounts to just cause for termination. We believe that once these cases start to arrive in court, they will all be decided differently, simply because the just cause test will apply differently across different industries, job positions, and work arrangements.

That being said, while just cause is not easy to prove, it is far from being impossible to prove. With the right set of facts, we believe that there is a good chance an employer can prove just cause for terminating an employee for their refusal to comply with a vaccination policy.

Q3: How should I decide whether to settle or go to trial?

I always tell my employer clients that a “win” in a wrongful dismissal is for their business to find the cheapest and least disruptive way possible to make the wrongful dismissal claim go away. For every employer, what this means will be different. Some things that come into consideration are:

  • How will my other employees whom I fired on similar grounds react if they learn that I settled?
  • How will my existing employees react if they learn that I settled?
  • How much time will I be taking away from making my business profitable if I decide to carry on with this lawsuit?
  • What are my odds of getting a less expensive result in court rather than settling right now?
  • If applicable, will pending lawsuits have any impact on my plans to sell the business?

These are challenging times and it is important for your business to make the right decisions and choices by consulting a lawyer on your next steps.

This blog is not intended to serve as legal advice, and only provides general information.

Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected]

New – BC employers must provide employees 5 days of paid sick leave

The BC Government has announced that starting January 1, 2022, all businesses with employees falling under the Employment Standards Act will be required to give their employees up to 5 days of paid sick leave each year. Paid sick leave is a significant change in the minimum employment standards in BC.  We tackle some frequently asked questions below:

Q:        When does this rule come into effect?

A:         January 1, 2022

Q:        Are all businesses impacted?

A:           All businesses with employees falling under the BC Employment Standards Act are required to follow this rule.

There are some exceptions which could include:

  • unionized workplaces (which would have their own collective agreements);
  • independent contractors (who would have their own contracts);
  • certain professionals such as engineers, accountants, or lawyers (read more); and
  • federally-regulated businesses, for example those whose businesses are in the air transportation, banks or telecommunications industries (see list).
Q:        Which employees are covered?

A:            All employees falling under the Employment Standards Act, including full-time, part-time and casual workers.

Q:           Are there any conditions these employees need to meet before they become eligible for the paid sick leave?

A:         The employees need to have been employed for at least 90 calendar days. There is no requirement that they have worked a certain number of hours or days.

Q:           Does the 5 days of paid sick include the 3 unpaid days of sick leave that was recently added to the Employment Standards Act as a pandemic response?

A:            No, the 5 paid days are in addition to the 3 unpaid days, meaning that starting January 1, 2022, an employee could be at minimum entitled to 8 days off if they are sick, 5 paid and 3 unpaid.

Q:           Is a doctor’s note required?

A:         Employers are allowed to ask for “reasonably sufficient proof” and the employee must, as soon as practicable, provide such documentation to their employer.  No further details have been provided about what “reasonably sufficient proof” might be.

Stay tuned! We expect there will be more guidance from the Government of British Columbia coming out in the following weeks and we will updating this post.

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts.

Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

Equity, Stock Options, RSUs – The Basics

Equity, Stock Options, RSUs – The Basics

So, your employer granted you stock options, restricted share units (RSUs), phantom stock options or some other kind equity compensation. Great news, right? Or is it? Over the years, countless employees have confided in me that they aren’t exactly sure what they have received, what the value is, or how to realize the value. If this sounds familiar, read on!

Understand the Jargon 

Equity compensation comes with a vocabulary all its own – vesting, exercise price, tranches, stock options, restricted shares, phantom stock, equity plan, to name a few such terms.  What are vested options vs. unvested options? What is a stock option vs. stock?  A restricted share unit vs. a share? These words and concepts can be the difference between a big  dollar equity payout and zero. If you don’t know the jargon, it will be impossible to understand what you’ve been granted, so you need do some research.

Ask Questions 

All employees are entitled to understand their compensation packages. Unfortunately, when it comes to the daunting landscape of equity compensation, it can be hard to know what questions to ask, or even whom to ask. And when equity compensation is part of a new hire package, many are understandably reluctant to ask for details. As a starting point, ask questions of the company’s human resources department or the recruiter who hired you. If they can’t help you, find someone who can. Always ask for copies of documents that are referenced in the compensation letter such as the underlying stock option or equity “plan”, and the “standard equity grant agreement.” The small print really can make all the difference.

What Happens if You Leave the Company? 

Equity compensation is generally used as a retention tool, sometimes referred to as “golden handcuffs” to keep you with the company. This means that payouts may only happen if you stay for a long period of time, and have no value if you leave the company before a set date. For this reason, it’s important to know what happens to your equity compensation if you resign or your employment is terminated. For example, an ill-timed resignation may mean you lose your right to significant portions of your equity package. This underlines the importance of taking the time to ask questions at the outset to avoid nasty surprises down the road. If you are thinking of quitting or have been terminated, it’s a good idea to consult with an employment lawyer who has experience with equity compensation as there could be a lot at stake.

This blog is not intended to serve as legal advice, and only provides general information.

Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

Enter your email address below to receive our legal information updates direct to your inbox

Severance for a Contractor? What, no way!

I hired this person to work in my business. They asked to be a contractor. They wanted the flexibility and the write offs. It didn’t work out and now they want severance. What?! I don’t owe them anything! … do I?  

They hired me as a “contractor” but always treated me like an employee.  Then they let me go with no notice. Can they really do that to me!?

These questions come up all the time and the lawyerly answer to both is “it depends.” Why? Because the law says that even if you have a “contractor agreement” with someone, you can owe them severance. So when is a “contractor” entitled to severance? We have to look beyond the agreement and examine the true nature of the relationship between the company and the “contractor” to answer this. It often boils down to whether the contractor was really running their own business or whether they were really working for the company. Key factors are:

  • Exclusivity – Was the contractor able to work elsewhere? Did they? How dependent were they on the income? The more exclusive and dependent the relationship, the more likely the person is to be entitled to severance.
  • Control – Did the employer control the contractor’s work and hours? The more control the company has over the contractor, the more likely the company owes the contractor severance.
  • Tools and Expenses – Who owned them? Who paid to repair them? Was the contractor reimbursed for expenses? Contractors normally supply their own tools and are not reimbursed for personal expenses –expenses that are not passed through to a client. True independent contractors are not entitled to severance.
  • Profits and losses – If the contractor completed the job quickly, did she get the profit? If it took too long, did she take the loss? If the contractor had little opportunity for profit or loss, they are more likely to be seen to be working for the company and owed severance.
  • Workers – Could the contractor hire its own workers to get the job done? If not, the contractor is more likely to be seen to be working for the company and owed severance.
  • Contract – What does it say? Did it reflect the true reality of the situation? We have even seen “contractor” agreements that refer to the contractor as an “employee” throughout!

Whether you are a company or a contractor, it is important to have a contract that reflects the true intentions and the reality of the situation. If you don’t:

  • as a company you can be surprised with liabilities such as having to pay severance to “contractors” and sanctions for not complying with Employment Standards, tax and other legislation; and
  • as a “contractor” you can be out of work on little or no notice with potential claims that you have to fight about instead of something fair upfront.

Whether you need a contact, or are involved in a claim, a knowledgeable employment lawyer can help.

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts.

Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

Enter your email address below to receive our legal information updates direct to your inbox

What is Employment Law? Why should Employers care about Employment Law?

什么是就业法?雇主为什么要遵循就业法?

What is Employment Law? Why should Employers care about Employment Law?

吴鹰杰

Jim Wu

加拿大的就业法是站在雇员的立场上,是保护雇员的。雇主必须遵从法律并承担雇主应有的义务。反之,雇主将有可能面对风险,造成意想不到的损失。

Canadian laws recognize that there is a power imbalance between employees and employers. What this means is our laws include legal protections for employees and legal obligations for employers. As an employer, you might wonder, what is at stake for not following the rules?

我们经常会处理类似以下的一些例子(以下称呼及姓氏并非真实):

The following fictious examples are what we typically deal with in our practice as employment lawyers (please note that any actual resemblances are purely coincidental):

  1. 黄先生在温哥华岛购买了一个度假胜地。为吸引更多的中国游客,黄先生雇佣了一位中国人代替了原礼宾部负责人(欧洲人)。黄先生后来收到了他前礼宾部负责人的来信。来信要求黄先生赔偿几万加元,要不就会投诉到人权审裁处。

Mr. Wong has purchased a resort in Vancouver Island. Awestruck by the local beauty, Mr. Wong hopes to attract more Mandarin-speaking tourists and he replaces his head of concierge (a Caucasian) with a Chinese one. Mr. Wong later receives a letter threatening a human rights complaint from his former head of concierge, demanding tens of thousands.

涉及法律的问题:          黄先生可能因种族或出生地的歧视而解雇了前礼宾部负责人。

The Legal Problem: Mr. Wong may have discriminated against his former head of concierge by firing him because of his race or place of origin.

黄先生面对的风险:    黄先生可能会被裁定违反Human Rights Code。结果,他可能不得不支付多种赔偿,包括补偿损失的工资(wage loss)和“损害尊严”赔偿(injury to dignity damages)。除了这些以外,黄先生可能还需要聘用律师来面对人权投诉。

What is at stake for Mr. Wong: Mr. Wong may be found to have breached the Human Rights Code and an award of financial damages could be made including wage losses and injury to dignity damages.  Mr. Wong may also need to spend a lot of money to either fight or settle the human rights complaint.

 

  1. 餐馆老板彭女士的一名女员工被其餐馆的另一名男员工受到欺凌和性骚扰。事后,那位女员工向WorkSafeBC举报。 当WorkSafeBC在调查过程中提出要查看餐馆职业健康和安全条例,餐馆无法提供。

A female employee of Ms. Peng, a restaurant owner, made a complaint to WorkSafeBC that she was being bullied and sexually harassed by a male colleague. During its investigation of the complaint, WorkSafeBC asks for the restaurant’s bullying and harassment policy and procedure but Ms. Peng is unable to do so as the restaurant does not have one.

涉及法律的问题:   Workers Compensation Act要求彭女士制定餐馆职业健康安全条例,并对所有雇员必须进行该政策和程序培训。

The Legal Problem: The Workers Compensation Act requires every employer to have a bullying and harassment policy and procedure and to train all of their employees on that policy and procedure.

彭女士面对的风险:   彭女士可能会因不遵守法律规定,收到遵守令。公司也可能因违反工作场所安全标准而被罚款。在最严重的情况下,这些罚款可能超过100,000加元。

What is at stake for Ms. Peng:   A finding of non-compliance and order to comply will likely be made.  Companies can also be subjected to fines under the Workers Compensation Act, which can exceed $100,000 for the most extreme safety violations.

 

  1. 董女士开办了一个课余学习中心。董女士对申请职位的老师以2小时的无薪代课作为她聘用评估。目前已被聘用老师有20 位。最近,董女士收到了Employment Standards投诉。

Ms. Tong runs an after-school learning centre. She interviewed 20 prospective instructors and had them as a part of their interview, each teach a 2-hour class without pay. Recently, Ms. Tong received an Employment Standards complaint.

涉及法律的问题:     Employment Standards Act 要求雇主支付代课或曾代课老师时薪,哪怕是试用但未被录用。

The Legal Problem: Under the Employment Standards Act, Ms. Tong must pay all her job applicants for their 2 hours of teaching because it is considered to be “work”.

董女士面对的风险:   赔偿代课或曾代课老师时薪,并罚款至少1万加币(500 元 为一位老师)。

What is at stake for Ms. Tong: On top of paying wages for the 2 hours of work for all 20 of her prospective instructors, Ms. Tong may be fined a minimum of $10,000.00 ($500 fine for each affected prospective instructor).

 

  1. 张先生无书面合同雇用了一位雇员。一年后,张先生解雇了那位雇员,并给了该雇员一些补偿。但该员工不但没有接受张先生的补偿,而且请了律师并向他起诉。

Mr. Chang hires his newest employee without a written contract. A year later, Mr. Chang fires that employee and offers him some severance. The employee rejects Mr. Chang’s offer and hires a lawyer and sues him.

涉及法律的问题:     由于张先生没有书面雇佣协议。

 The Legal Problem:         Mr. Chang does not have a written employment contract.

张先生面对的风险:   张先生可能要聘用律师面对诉讼。诉讼结果可能法院命令张先生付遣散费。

What Mr. Chang potentially faces: A court order to pay severance pay, as well as spending lots of money to either fight or settle the lawsuit.

综上所述,雇主要遵循就业法。雇主无论是雇用,解雇,或者介于两者之间的任何冲突,雇主仍有可能违反就业法。为了最大程度减少您的风险,建议您聘用就业法律师保护雇主的权力。

 

In summary, employers face serious liabilities. Whether it is hiring, firing, or anything in between, even the most cautious employer can run afoul of employment laws. There are proactive steps you can take to avoid these risks. To minimize liability, we recommend you get advice from an employment lawyer.

 

本博客旨在提供一般性信息,不作为正式法律建议用途。

This blog is not intended to serve as legal advice, and only provides general information.

每种具体情况必须依据其自身事实加以考虑。如若需要相关法律咨询建议(普通话或上海话),请联系吴鹰杰律师。联系邮箱地址:[email protected]

Every situation must be considered on its own facts. Need legal advice in Mandarin or Shanghaiese Dialect? Contact Jim Wu [email protected].

Enter your email address below to receive our legal information updates direct to your inbox