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].

Four reasons to investigate a complaint – even if the employee has quit

We regularly are asked by our employer clients, if an employee makes a complaint and then quits, should we still investigate? Looking into complaints can be messy and stressful, so it is tempting to decide you are off the hook. What about if a complaint of harassment, bullying or discrimination is made by someone who has quit against someone who is still employed? Here are four reasons why the answer is yes, you need to investigate:

  1. To uncover festering issues.

An investigation may uncover poor leadership, or a “bully” that has gone under the radar for some time. Consider the scenario where a young, short-term employee had handed in his resignation and a complaint about bullying by his supervisor. An investigation after he left unearthed issues with the supervisor that had been experienced by others for over 3 years, with no one coming forward. This supervisor had caused disengagement, lack of productivity and a string of resignations.

  1. To comply with obligations under Health and Safety legislation.

There is an obligation for employers under the B.C Worker’s Compensation Act, to maintain a harassment-free workplace. The WorkSafe BC website has FAQ’s to explain how WorkSafe BC will handle a complaint of harassment and when they will contact the employer. In short, WorkSafe BC will ask an employer to investigate a concern, and WorkSafe BC will want to ensure that the employer has a harassment policy, and follows it.

  1. To comply with obligations under the Canada Labour Code.

For federally-regulated organizations, under recent changes to the Canada Labour Code that came into effect January 1, 2021, there is a requirement to investigate concerns raised by former employees that are made known to the employer within three months after the day on which the former employee ceased to be an employee. The Minister may extend that time period if the former employee demonstrates that they were not able to bring the concern forward within that time frame because of trauma as a result of the occurrence or because of a medical condition.

  1. To comply with obligations under Human Rights laws.

The Canadian Human Rights Tribunal issued a decision finding an employer liable for harassment experienced by former employee at the hands of a current employee. In Duverger v. 2553-4330 Québec Inc. (Aéropro), 2019 CHRT 18 (CanLII), the Tribunal considered harassing emails by an Aéropro employee, via his personal email address, to a former employee. The emails were highly offensive and full of hatred. One of the questions before the Tribunal was whether this constituted harassment “related to employment” considering it took place after the victim’s employment had ended. The Tribunal ruled there was enough connection to the workplace in the relationship, and that the email address used for the harassing emails, though personal, had been regularly used by the respondent employee for workplace matters. The Aéropro managers who were aware of the harassing emails were found to not have done enough to investigate the issue or prevent it. The company was found responsible for the harassment.

It is important to note that the Canadian Human Rights Act applies only to federally-regulated employers. Each province has its own human rights laws and the result of a case such as this one may vary depending on the text of the provincial legislation. It will be interesting to see if the decision in Duverger will be followed by provincial Tribunals.

What if the complaint is made by a current employee about a former employee?

You may still have an obligation to investigate a complaint about a former employee for many of the same reasons stated above. WorkSafe BC may require an investigation. However, you may be faced with these practical issues:

You can’t reach the former employee (respondent). If they refuse to speak to you about the complaint, there is not much you can do. Employment obligations mandating cooperation in an investigation no longer apply to a former employee. An investigation is not yet a legal proceeding for which the employer could use a subpoena. You may find yourself unable to conduct a full investigation, left only with the complainant’s side of the story, from which you would have to make decisions.

The complainant may end up dropping the complaint. Good news, right? Depending on the circumstances, the complainant may realize over time that once the respondent leaves the organization, things improve. I once investigated a concern by a complainant who kept bringing issues related to a former executive who was no longer with the organization. At the heart of her concerns was the need to be heard, and the need to ensure no one else would go through what she did. She was also very concerned that HR had not done enough at the relevant time. It was only when she felt that she had been heard that she agreed that the complaint was over.

The bottom line is that even if one of the employees involved in a complaint has quit, employers still need to look at the situation carefully as an investigation may be needed.

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].

Pregnancy Discrimination – Mom’s the Word

Monthly, sometimes weekly, and at times even daily, we are asked about expectant moms’ rights:

  • I announced that I am pregnant and was:
    • passed over for a promotion,
    • denied opportunities or training,
    • left out of meetings,
    • reassigned to work on less important projects, or
    • fired.
  • People at work are making negative comments about me and:
    • my (lack of) commitment to work,
    • my need to take time off, or
    • my modified duties …
  • My employer can’t do that… right?

We also get regular questions from our employer clients:

  • She went on maternity leave and we like her replacement better…
  • We were having issues with her performance before she said she was pregnant, and we were going to fire her…
  • We are going through a major restructuring and eliminating a bunch of positions including a pregnant woman’s position...
  • We can let her go… right?

There is so much misinformation and confusion about the rights of working pregnant women. The law is clear, being fired, laid off, denied opportunities or experiencing other negative treatment because you are pregnant is discrimination.

Treating an employee differently (negatively) because they are pregnant or are taking maternity or parental leave is discrimination. Pregnancy does not have to be the only reason or even the main reason for the differential treatment. If it is any part of the reason for the negative treatment, it is discrimination. But pregnancy does not excuse an employee from meeting performance expectations or insulate them from the effects of a company-wide restructuring. Whether there was discrimination is unique to each case.

The protections working pregnant women in BC have come from the BC Human Rights Code, the BC Employment Standards Act and case Law. The Human Rights Code says that:

a person must not refuse to employ or refuse to continue to employ a person, or discriminate against a person regarding employment or any term or condition of employment, because of the persons sex.

The Supreme Court of Canada held in Brooks v. Canada Safeway Ltd., [1989] 1 SCR 1219 that sex discrimination includes discrimination based on pregnancy.

The Employment Standards Act says that:

an employer must not, because of an employee’s pregnancy or leave terminate her employment or change a condition of her employment without her written consent. It also says that as soon as her leave ends, the employer must place her in the position she held before taking leave, or a comparable position.

If you are an expectant mom concerned about any of these issues, or an employer thinking about letting an expectant mom go (even for a good reason) you should consult with an employment/workplace human rights lawyer. These can be tricky issues to manage for soon-to-be/new parents and businesses.

For expectant moms, we can help you navigate this stressful situation, inform you of your rights and come up with a plan for you moving forward.  Plans are unique to each person and can include everything from helping educate your employer about its obligations to you, to helping you leave your workplace and get compensation.

For employers, we can help you understand your obligations and risks, and how to act in a manner that is consistent with the law and achieve your own best outcome.

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].

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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).

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].

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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.

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].

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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!!

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].

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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

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].

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