December 2016 | HRInsider.caEnter Code at HRInsider.ca QUICK CODE

TOOL: Company Social Events Policy 3

CASE Of ThE mOnTh:Alberta Court Okays Age Discrimination by Bona fide Insurance Plan 4

mOnTh In REVIEW: Latest Cases, Laws & Announcements 5

KnOW ThE LAWS Of YOuR PROVInCE:Licence for Benefits Plans to Commit Age Discrimination 8

QuIZ: Can Employer Install Workplace Surveillance Cameras? 9

TRAPS TO AVOID: misclassifying Employees as managers 10

KnOW ThE LAWS Of YOuR PROVInCE:Employees Subject to Special minimum Wage Rules 11

IN THIS ISSUE

Blue Jay Fan Beer Can Tosser Tests Limits of Off-Duty Conduct Termination

JuST CAuSE

Blue Jay Fan Beer Can Tosser Tests Limits of Off-Duty Conduct TerminationIf stupid behaviour away from work were just cause

for termination, nobody would have a job. But off-duty stupidity may rise to the level of a fireable offence when it’s done in front of a worldwide TV audience.

Ken Pagan is learning this lesson the hard way. The 41-year-old-sports reporter was the Blue Jay fan who threw a beer can at Baltimore Orioles outfielder Hyun Soon Kim during the recent wildcard playoff game at the Rogers Centre. Pagan’s employers at Sportsmedia were among the millions who witnessed and were outraged by the act. Sportsmedia immediately suspended Pagan and now has to decide whether to fire him for his off-duty behaviour. Although it’s a difficult decision, it’s one that many HR managers confront.

Is Misconduct Away from Work Just Cause to Terminate?Off-duty conduct is legitimate grounds for discipline if there’s a nexus between the behaviour and the workplace. Alas, the rule, which comes from decades of litigation, is easier to state than to apply to real-life situations. Just ask the folks over at Sportsmedia.

As Sportsmedia’s lawyers are no doubt advising their client, the employer must prove the nexus between off-duty conduct and workplace. A venerable 1967 Ontario case called Re Millhaven Fibres Ltd. & Oil, Chemical and Atomic Workers I.U. Loc. 9-670 sets out 5 ways an employer can meet this burden. Let’s go through each of the Millhaven factors and see how they may play out in the Pagan situation.

1. Conduct Hurts Company’s ReputationExplanation: A nexus exists when the off-duty conduct hurts the standing of the company or its products . The employer doesn’t have to show actual damage; the mere potential for harm may be enough to justify termination. Real-life examples include conduct that causes negative headlines, e.g., “Jailer Faces Stalking Charges,” or making derogatory blog posts about bosses, co-workers or clients.

Application to Pagan Situation: Pagan’s behaviour has at least the potential to cause Sportsmedia embarrassment. On the other hand, his transgression

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wasn’t criminal or malicious. It was just stupid and juvenile. And it was an isolated incident. Courts tend to be more forgiving of juvenile behaviour, e.g., male tax agents’ mooning women in a parking garage, especially when the conduct is committed by an employee with a record as spotless as Pagan’s apparently is.

Outcome: Inconclusive

2. Conduct Hurts Employee’s EffectivenessExplanation: The conduct-workplace nexus also exists when the off-duty behaviour makes it impossible for employees to do their job effectively, e.g., incarceration or loss of a driver’s licence or other credential.

Application to Pagan Situation: Effectiveness cases often consider the behaviour’s impact on the employee’s credibility, respect and judgment, e.g., a grade school teacher’s involvement in child pornography, an accountant in embezzlement, racist and other offensive comments. Again, Pagan’s behaviour was stupid but not dishonest or discriminatory. But acting like a buffoon, especially in such a public way, is apt to be more damaging when committed by a member of the media. Moreover, targeting a player could damage Pagan’s standing with the athletes and sports officials he’s charged with covering as a sports reporter.

Outcome: Tilts slightly in favour of termination

3. Conduct Causes Complications with Co-Workers Explanation: Acceptance of colleagues is also essential to an employee’s viability. Evidence that off-duty misconduct has undermined the requisite esteem or trust of co-workers is often critical, e.g., refusal of female employees to work with prison guard criminally charged with using binoculars to spy on an ex-lover at her home after dark.

Application to Pagan Situation: The argument could be made that Pagan’s actions did impair his credibility and viability with other sports reporters and colleagues especially to the extent they occurred at a baseball game viewed by millions.

Outcome: Tilts slightly in favour of termination

4. Conduct Is Serious Violation of Criminal CodeExplanation: Convictions and even accusations of “serious” crimes are usually just cause to terminate. Violent crimes like homicide and sexual assault are obvious examples of serious ones. Non-violent crimes fall in the gray area. General Rule: The closer the relation between the crime and the employee’s work the more likely the justification for termination. For example,

theft or tax fraud would most likely justify termination if the employee handles cash or exercises a financial position within the company.

Application to Pagan Situation: Pagan was charged with one criminal count of mischief. The question is whether this is a serious violation. Pagan didn’t kill, rape or rob anybody; but throwing a beer can at a ballplayer is a violent and dangerous act. Moreover, there’s a fairly close connection between the alleged violation and Pagan’s work as a sports reporter since it occurred at a sporting event and targeted an athlete.

Outcome: Tilts slightly in favour of termination

5. Conduct Interferes with Managing the Business Explanation: The fifth and vaguest Millhaven factor is conduct that does general harm to a business and workplace. Examples include cases where employees criticize the business and customers on social media sites and conflicts of interest.

Application to Pagan Situation: We don’t have enough facts to determine if Pagan’s transgression harmed Sportsmedia’s business and, if so, to what extent. Obviously, though, this question will certainly be central to the company’s internal investigation.

Outcome: Inconclusive

Other Factors Based on the few facts we know, it appears that at least 3 of the 5 Millhaven factors would be in play as potential justifications for firing Pagan. But as in any other case of discipline, there are a number of other factors that Sportsmedia would have to consider in deciding whether to terminate, including:

�� Pagan’s lack of a disciplinary record;

�� The fact that he’s apparently well-liked and respected as a sports reporter;

�� Whether the company has a clear off-duty conduct policy;

�� Whether the company consistently enforces that policy;

�� Whether the internal investigation is timely, complete and fair;

�� Whether Pagan expressed remorse and responsibility for his behaviour;

�� Whether it can document that it carried out its investigation and disciplinary process fairly.

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ToolCOMPANY SOCIAL EVENTS POLICY

introduction: How to use This Tool. While they may be vital to morale and team building, company-sponsored holiday parties, picnics, outings and other social events are also a liability nightmare, especially when alcohol is served. The first step in managing these liability risks is to establish a set of ground rules for employee behaviour during such events. To help you, we’ve gathered a number of top of the line policies from companies in Canada, the U.S., Europe and even Australia and combined their best features into a template that you can adapt to fit the circumstances of your own organization. We’ve also added a section addressing social events held at work premises that are not company-sponsored, e.g., birthdays or baby showers.

1. PuRPOse The purpose of this Policy is to establish ground rules for behaviour during employee social events and functions, including both company-sponsored and unsponsored events.

2. sCOPeAs used in this Policy:“Company-sponsored social events” refers to holiday parties, picnics, receptions, dinners, outings and other social or recreational events that Company ABC (“Company”) holds for employees during the year to express its appreciation for their contribution and foster company-wide collegiality and morale, including events that are:

�� Held on- and off-Company premises;

�� Held during regular business hours and on nights and weekends;

�� Limited to employee and to which employees’ families and guests, company’ clients and other associates are also invited.

“unsponsored social events” refers to social or recreational events or functions held on Company premises during regular business hours for employees to celebrate special events such as birthdays, baby showers and retirements that are not organized, staged or funded by the Company.

3. PLANNiNG OF COMPANY-sPONsOReD sOCiAL eVeNTsResponsibility for creating, proposing, planning and staging Company-sponsored social events will be exercised by the ABC Company Social Events Planning Committee consisting of [list, e.g., the HR Director and employee volunteers] in accordance with the following procedure: [set out an event planning procedure and chain of command that makes sense for your own organization.]

4. PLANNiNG OF uNsPONsOReD sOCiAL eVeNTsPlanning, organization and staging of unsponsored social events must be carried out by employees on a volunteer-basis. The following ground rules apply when such events are to be held on Company premises:

�� Events must be held during regular business hours and limited to special occasions;

�� Events requiring reservation of conference rooms, departmental areas or other space in which operations are carried out must be organized and approved at least [__ days] in advance;

�� Company funds will not be available to pay for such events, subject to exceptions the Company may make at its sole discretion;

�� Alcohol may not be served at such events;

�� The Company accepts no responsibility or liability for unsponsored events regardless of where they are held.

5. eMPLOYee CONDuCT AT sOCiAL eVeNTsCompany-sponsored social events are held for social and recreational purposes. Attendance and participation is strictly voluntary.

Employees must behave appropriately and professionally at all social events, whether sponsored or unsponsored, on-site or off-site, during or after regular business hours. Employees are reminded that the Company Code of Employee Conduct and Policies apply at all such events, including but not limited to policies banning workplace sexual harassment, violence and bullying.

6. seRViNG OF ALCOHOLThe following rules apply to Company-sponsored social events at which alcohol is served (remember that alcohol may not be served at unsponsored events held on Company premises):

�� The manager with ultimate authority over the function where alcohol is served or invitees participating in it is responsible for ensuring employees behave appropriately and in compliance with Company policies;

�� Alcohol may be served and consumed only in designated areas or rooms such as dining rooms, lounges and cafeterias;

�� Self-serving of alcoholic beverages is strictly prohibited—employees must have drinks served to them and may not help themselves;

�� Off-site events will be held in appropriately licensed facilities, with drinks served by professional bartenders;

�� Food must be available where alcohol is served;

�� Alcoholic beverages will be served for a restricted period (generally no more than 2 hours), subject to exceptions the Company may make at its sole discretion;

�� Alcohol service will end no less than one hour prior to the end of the event; and

�� Alcohol may not be served to minors or anyone who appears to be impaired.

7. DRiNkiNG & DRiViNGEmployees must obey the law and not drink and drive. They are also encouraged to take steps to look out for their co-workers and guests and ensure that they do not drink and drive. If an employee knows or suspects that a person is intoxicated, he or she should confront the individual. But if the employee is not comfortable with that, he or she must notify the monitor or manager in charge. The individual who is impaired should be asked to leave the event. If necessary, the Company will make arrangements for the individual’s safe transportation. If the individual refuses to leave in such transportation, the monitor or manager in charge should immediately notify the authorities. In no event should the individual be permitted to drive himself/herself from the event.

8. ViOLATiONsEmployees who violate any of the above rules will be subject to discipline under the Company’s disciplinary procedure, up to and including summary dismissal for serious offences which may include, without limitation, excessive drunkenness, the use or distribution of illegal drugs, unlawful or inappropriate harassment, violence, serious verbal abuse, bullying, fighting or assault.

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The ban on age discrimination has a significant loophole: Policies and practices that discriminate on the basis of age are allowed as long as they’re carried out as part of a “bona fide” benefit plan. Until now, the bona fide plan exception has

been applied strictly to pension and retirement plans. But a new case from Alberta applies it to an insurance plan for the first time. Here’s a look at the case and what it portends for employers and plans in Alberta and across Canada.

THE CASEWhat Happened: Under a long-term disability (LTD) plan, employees could no longer receive benefits once they became pensionable under the company pension plan. Things came to a head when a senior employee had to forfeit his LTD benefits because he had reached his pensionable age. The union contended that cutting off employee eligibility for LTD benefits when they reach pensionable age was age discrimination. The 3-person arbitration panel acknowledged that the policy was age-based but said it was legal because the LTD plan was a bona fide plan.

What the Court Decided: The Alberta Court of Queen’s Bench upheld the panel’s ruling and tossed the union’s appeal.

How the Court Justified the Decision: Paying benefits to employees based on how old they are is a form of age discrimination banned by human rights laws. But, the Court continued, Alberta carves out a significant exception. Under Section 7(2) of the Alberta Human Rights Act, the ban on age discrimination “does not affect the operation of any bona fide retirement or pension plan or the terms or conditions of any bona fide group or employee insurance plan.”

The Court said that the LTD plan in this case was “bona fide.” It wasn’t a sham but “a legitimate plan adopted in good faith and not for the purpose of defeating” employees’ protected rights, the Court explained.

International Brotherhood of Electrical Workers, Local 1007 v Epcor, 2016 ABQB 574 (CanLII), Oct. 12, 2016

WHAT IT MEANSThere are 4 key takeaways from the Epcor case:

1. The “Bona Fide” Plan Rule Applies EverywhereAlthough it comes from Alberta, the Epcor case has implications across Canada. Explanation: The “bona fide” plans rule isn’t unique to Alberta. The human rights laws of most jurisdictions (Yukon is the exception) include “savings clauses” exempting “bona fide” plans from age discrimination restrictions a la Section 7(2) of the Alberta Act.

2. The “Bona Fide” Plan Test Is Fairly Easy to MeetEmployers have the burden of proving that a plan that engages in age discrimination is “bona fide.” But unlike the so called bona fide occupational requirement (BFOR) which is extremely tough to prove, proving that a plan is

bona fide is fairly easy. The key is a 2008 case called New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc., in which the Supreme Court of Canada ruled that it’s not necessary to show that the discriminatory policy is bona fide, only that the plan itself is. And being bona fide simply means being a legitimate, good faith benefits arrangement as opposed to a sham for getting around the ban on age discrimination.

3. Two Kinds of Plans Qualify for the “Bona Fide” ExemptionThe “savings clause” exemption for bona fide plans applies to 2 types of employer-sponsored plans:

�� Retirement and pension plans; and

�� Group or employee insurance plans like the LTD in the Epcor case.

4. Epcor Applies Bona Fide Rule to Insurance PlansUntil now, however, all of the bona fide plan cases have involved pension/retirement plans. So the big question in Epcor is whether the same rules for pension plans apply to insurance plans. The union argued that insurance plans should be treated differently. For the exemption to apply, insurance plans must be not just bona fide but also reasonable, the union contended. The significance of the Epcor case is that the Court did not impose a stricter standard for insurance plans.

BOTTOM LINESavings Clause Language Determines. What matters is not the type of plan involved but what the savings clause in the province’s human rights act actually says, the Epcor Court ruled. And in Alberta (as in most of the other jurisdictions’ savings clauses—the exception being Manitoba), the clause says insurance plans must be “bona fide,” not that they must be “bona fide and reasonable.”

See “Know The Laws Of Your Province” on page 8 to see what the savings clause in your own jurisdiction says.

CASE Of ThE mOnTh

Alberta Court Okays Age Discrimination by Bona Fide insurance Plan

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FEDERAL

LAWS & ANNOUNCEMENTSPay equityOct. 5: The government says the current complaint-based federal pay equity system is too passive and should be overhauled in favour of an Ontario- or Québec model requiring employers to regularly review their compensation practices and take proactive measures to eliminate gender inequalities they identify. The plan is to study the issue, hold public consultations and propose new federal pay equity legislation by the end of 2018.

sexual HarassmentOct. 6: The RCMP settled a pair of sexual harassment class action lawsuits for $100 million for the hundreds of female officers and employees who suffered workplace abuse and harassment for over 4 decades. Commissioner Paulson also offered a public and emotional apology “to all the women” victimized by the RCMP’s “shameful conduct.”

employment insuranceOct. 6: Public consultations began on a proposal to expand EI parental leave and compassionate care benefits to employees who care for a family member. Although benefit amounts wouldn’t change, eligibility would be extended from 12 to 18 months.

Canada Pension PlanOct. 6: A week after announcing that the legislated CPP contribution rate of 9.9% is adequate to finance the Plan over the long term, the government tabled Bill C-26 to enhance CPP benefits. Highlights:

�� Increase share of annual earnings received during retirement from 1/4 to 1/3�� Phased in 1% increase in employer and employee contribution rate from 4.95% to 5.95% thru

2023�� Increase CPP maximum income range by 14%�� Increase disability and survivor benefits in proportion to contributions�� No changes to withholding methods or T4.

PensionsOct. 19: OSFI issued revised guidance for DB plans on preparing their actuarial reports. Key changes contained in the 36-page guide:

�� Maximum going concern discount rate revised to 6.00%�� Definition of quality of fixed-income investments to be used to establish a replicating portfolio�� Additional disclosure requirements for termination expenses�� Clarification on required contributions for funding Designated Plans.

PensionsOct.: Other new private pension guidance and publications issued by OSFI this month

�� OSFI 2015-2016 Annual Report

�� Instruction Guides for disclosure of information requirements for DB and DC plansFact sheet on Registered Pension Plans and Other Types of Savings Plans Coverage in Canada.

ALbERtA

LAWS & ANNOUNCEMENTSJobsOct. 11: A new government report claims credit for creating 8,000 jobs via Capital Plan support for infrastructure construction projects across the province. Major new projects cited include the Gaetz/QEII interchange in Red Deer, the Southwest Calgary Ring Road and the University of Lethbridge Destination project.

ApprenticesOct. 20: A new $1.5 million program will provide an Apprentice Training Award of $1,000 to as many as 1,500 eligible apprentices during the 2016-17 academic year, starting in Jan. 2017. To be eligible, apprentices must be registered at a post-secondary institution or other training partner and have successfully completed their first period of technical training.

Collective BargainingOct. 18: Physicians ratified revisions to the current Alberta Medical Association contract that runs through 2018. Although details of the changes weren’t disclosed, the new deal replaces the traditional fees-for-services fee schedule with a system that bases compensation on physicians’

A roundup of new legislation, regulations, government announcements, court cases and arbitration rulingstime and quality of care provided, as well as a plan to lure physicians to rural and other underserved parts of the province.

PensionsOct. 1: The Superintendent of Pensions published the new pension fees: for plans with fiscal year-ends between Oct. 1, 2016 and Sept. 30, 2017:

�� Annual filing fee: $3.25 x total plan membership (same as last year)

�� Minimum fee: $250

�� Maximum fee: $75,000.

CASESDrilling Company showed Due Diligence by Following industry standardsA floorhand was killed after being hit in the head while performing an oilfield “tripping out” procedure. The drilling company was found guilty of failing to take “reasonably practicable” measures required by the OHS laws to protect the worker but the appeals court overturned the conviction. First, the Crown didn’t prove that the company violated its duty to take “reasonably practicable” safety measures, citing lack of evidence of how the incident actually happened. And even if the company had committed an OHS violation, the fact that it followed industry standards in conducting the tripping operation proved that it used due diligence to prevent the violation and control the hazard [R v Precision Drilling Ltd, 2016 ABQB 518 (CanLII), Sept. 16, 2016].

bRItISH COLUMbIA

LAWS & ANNOUNCEMENTS

JobsOct. 11: Under a new partnership, BC will provide $55,000 to the Aerospace Industries Association of Canada to help the industry identify its future labour. The BC aerospace sector, the third largest in Canada, generates roughly $1.3 billion of the province’s GDP.

employment insuranceOct. 1: BC became the second province to make EI maternity and parental benefits and benefits for parents caring for critically ill children fully exempt for people on income and disability assistance. Québec is the only other province to grant such an exemption.

PrivacyOct. 18: The Information and Privacy Commission issued new guidance listing 15 measures employers can take to help their employees keep their mobile devices secure, including (in order of priority): password protecting devices, locking screens, encryption, limiting password attempts, use of anti-malware software, not jailbreaking or rooting devices, limiting app permissions and keeping software up to date.

PensionsOct. 11: According to a new government fact sheet on registered disability savings plans (RDSPs), as of Dec. 2015:

�� More than 22,500 British Columbians have set up RDSPs, up 13% since June

�� Total value of BC RDSPs is $460 million, up $45 million since June

�� Average value of an RDSP in BC was $20,300, $1,100 above the national average.

workplace safetyOct. 7: WorkSafeBC ended hearings on proposed OHS law changes that would expand and clarify the rights, powers and training of joint health and safety committees and health and safety representatives and require employers to limit employees’ workplace exposure to vapours from e-cigarettes.

CASESFired employee Gets Chance to Prove His Disability Discrimination ClaimAn employee with a wrist injury that forced him to miss work claimed he was fired because of his physical disability. The employer claimed he was fired for ongoing attendance issues and that it didn’t even know about the employee’s injury until after the termination date. So it asked the Tribunal to toss the case without a trial. The Tribunal refused. There was conflicting evidence about when the employer first became aware of the injury. And because the timing was such a crucial issue in the case, a trial would have to be held to sort it out [Corrigan v. Venco Products, 2016 BCHRT 147 (CanLII), Sept. 29, 2016].

Month in ReviewDecember 2016 | HRInsider.ca

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MANItObA

LAWS & ANNOUNCEMENTSMinimum wageSept. 29: Should Manitoba change its minimum wage system to provide for automatic adjustments for inflation the way many other provinces do? The government announced that it has asked the Labour Management Review Committee to study that question.

Human RightsOct.: The Manitoba Human Rights Commission issued revised guidelines on service animals in the workplace clarifying that:

�� Disabled employees and job candidates have may bring their service animal to the workplace

�� Employers may deny or limit access if the animal would unreasonably endanger health and safety, e.g., in a sterile operating room

�� Employees/Job applicants must control their animals and the employer may ask that animals be removed if they behave disruptively

�� Employers may ask if the animal is trained to assist the disabled employee/job applicant

�� Employers may request information to identify or clarify the disability-related need

�� Employers should not ask the employee/job applicant to verify the need for the animal if the need is obvious.

PensionsOct. 14: Manitoba changed its pensions regulation to clear the way for American Industrial Acquisition Corp’s takeover of the kraft paper mill in The Pas currently owned by Tolko Industries. The regulation grants AIAC a three-year exemption from amortized pension solvency laws, subject to agreement by a majority of current Tolko plan members. The acquisition will keep the mill running and head off the closing previously scheduled for Dec. 2, saving hundreds of jobs.

NEW bRUNSWICK

LAWS & ANNOUNCEMENTSMinimum wageOct. 7: Public consultations ended on proposed increases to the minimum wage. The plan: raise the minimum wage from the current $10.65 per hour to $11 in 2017 and index it for inflation on an annual basis thereafter.

immigrationOct. 11: A new $100,000 pilot program called Succession Connect aims to match immigrants looking for entrepreneurial opportunities with existing businesses that have aging ownership. The idea is to direct the investment and energies of newcomers to maintain legacy businesses that might otherwise have to shutter due to succession challenges.

workers’ CompensationOct. 4: Ouch. After six years of decline, New Brunswick’s high workers’ comp premiums are headed north again—and by more than a little bit. Average assessments for 2017 will increase from $1.11 to $1.48 per $100 of assessable payroll due to higher claims costs and benefits enhancements. The increase affects most employers and industries. One of the few exceptions: Firefighter Compensation Act assessments will stay at $690 per firefighter.

NEWFOUNDLAND & LAbRADOR

LAWS & ANNOUNCEMENTS

JobsOct. 7: The government handed out more than $1.5 million worth of project approvals under Linkages, a joint government-non-profit project that helps young, non-EI eligible workers transition from school to the work force. Linkages participants get a 26-week employment placement, bi-weekly career planning workshops and a completion bonus.

PrivacyOct. 17: According to a new report, the Office of Information and Privacy Commissioner received 41 privacy breach reports from 15 public agencies in the most recent quarter (July 1 to Sept. 30, 2016),

as opposed to 66 from 19 agencies in the previous quarter. The agencies with the largest number of breach reports were Service NL (8), Dept. of Child, Youth and Family Services (7) and WHSCC (5). Mail-out was the activity accounting for the most breaches (15), followed by e-mail (13).

NORtHWESt tERRItORIES

PrivacyOct. 19: The Dept. of Health needs to do a better job of administering the new Health Information Act, according to the Office of Information and Privacy Commissioner’s newly tabled annual report. The first complaint under the Act was received on Oct. 1, 2015, the very same day the law took effect. “It is fairly clear from the nature of the breaches being reported and complaints being made to the office that there is much work to be done to ensure [government and health custodian] compliance with the new obligations,” the report states.

NOVA SCOtIA

LAWS & ANNOUNCEMENTSApprenticeshipOct. 5: Changes to the Nova Scotia apprenticeship system will take effect in Spring 2017:

�� Training ratio increases from 1 to 2 apprentices per journeyperson for automotive service technician, cook apprentices and truck and transport mechanics

�� Required training hours adjusted to ensure consistency with other provinces and territories

�� Exam rewrite wait times reduced from 3 months to 30 days.

PrivacySept. 28: The Privacy Commissioner recommended 7 changes to the Personal Health Information Act, including:

�� Mandatory notification of potentially harmful breaches to Commissioner and individuals affected

�� Give substitutes authority to exercise individuals’ privacy and access rights

�� Allow for sharing of personal health information with privacy commissions of other jurisdictions.

workplace safetyOct. 21: Hospitals and health clinics have long been at high risk of workplace violence. But it took the recent incident in which an armed man walked into the ER at Middleton’s Soldiers Memorial Hospital to bring the matter to public attention and produce an official response—the formation of a new government working group to study the problem and issue recommendations by year’s end.

workers’ CompensationOct. 12: The WCB issued a proposed policy addressing a thorny topic: whether and under which conditions workers with pre-existing medical conditions should get workers’ comp benefits for claims associated with those conditions. Deadline to comment on the proposal is Jan. 9, 2017.

CASESMental stress from Homophobic Harassment Covered by workers’ CompA gay firefighter claimed workers’ comp for mental stress after enduring continuous homophobic harassment and threats by his colleagues. The WCB denied the claim because the stress was cumulative and not the result of a single discrete traumatic event. But the Workers’ Comp Appeal Tribunal strongly disagreed. Under the WCB policy, trauma includes events that cause workers to perceive a threat of death or serious injury. The “scandalous” treatment the firefighter received in the course of work was enough to constitute trauma under those criteria [2012-111-AD (Re), 2016 CanLII 59328 (NS WCAT), Aug. 19, 2016].

NUNAVUt

LAWS & ANNOUNCEMENTSJobsOct. 18: The government will offer 14-week training programs under the “Getting Ready for Employment and Training” (G.R.E.A.T.) program starting in January. Locations: Qikiqtarjuaq, Kimmirut, Kugaaruk, Arviat, Clyde River and Hall Beach. G.R.E.A.T. helps individuals develop marketable skills, write resumés and interview effectively.

Month in Review

7

ONtARIO

LAWS & ANNOUNCEMENTSemployment standardsSept. 30: Results of MOL’s recent ESA blitzes focusing on young workers:

�� Only 42 of 273 employers inspected found fully compliant�� 78 tickets issued�� $276,000 recovered for employees�� Most common monetary violations: public holidays and overtime pay�� Most common non-monetary violations: vacation pay—written agreements, work hours,

record-keeping.

Human RightsOct. 13: The OHRC issued updated guidance on employee drug and alcohol testing. The new guidance reiterates that testing policies based on real and perceived addictions discriminate unless employers can show they constitute bona fide job requirements. Key points:

�� Testing allowed only to detect impairment�� Testing is allowed in the interest of safety, not morality�� Employers must conduct individualized assessment on employees who test positive and not

impose consequences automatically�� Employees who test positive and who have addictions may be entitled to accommodations

up to undue hardship.

Public ContractsOct.: Ontario is dropping its “net zero” bargaining policy mandate that wage increases granted in public sector contractors be offset by savings elsewhere. Although the government still intends to be prudent about raises, future compensation decisions will factor the “needs of individuals who work in the system,” according to a letter from Premiere Wynne to provincial ministers.

Collective BargainingOct. 17: Automotive workers represented by Unifor voted 70.1% in favour of ratifying the union’s new deal with Fiat Chrysler, thereby heading off a strike at assembly plants in Brampton and Windsor. Like Unifor’s earlier agreement with GM, the Fiat Chrysler maintains the unpopular (with workers) 10-year earn-in period during which new workers get paid less than more experienced employees.

Pensions Oct. 12: According to FSCO’s solvency report, as of Sept. 30, 2016:

�� The median solvency ratio is 79% (vs. 80% in the second quarter)�� 21% of plans had solvency ratios between 85% and 100%�� 5% of plans had a ratio of greater than 100%.

workers’ CompensationOct.: For the first time in 16 years, WSIB is lowering premiums. Schedule 1 rates are dropping an average 5%, from $2.59 to $2.46 per $100 of assessable payroll. The cut, that few would have predicted just a couple of years ago, was made possible by the reduction of the unfunded liability to $5.6 billion (as compared to its high of $14.2 billion in 2011).

CASESPrice of wrongful Dismissal Goes up when employee is Age 61After 30 years of service, a regional director of a non-profit earning $102K+ per year was laid off as part of a restructuring. The issue: How much notice should she get? The court said 24 months was reasonable. The longer notice period was warranted due to the director’s age—61. And even though her skills were adaptable, the fact that she had worked for the same employer for so long might scare off potential employers and make them see her as an “individual set in her ways and not as adaptable to change,” the court explained [Ozorio v Canadian Hearing Society, 2016 ONSC 5440 (CanLII), Aug. 30, 2016].

PRINCE EDWARD ISLAND

LAWS & ANNOUNCEMENTSworkers’ CompensationOct. 27: The WCB wrapped up public consultations on a trio of draft policy changes addressing workers’ comp coverage of:

�� POL-131: Home modifications and special equipment needed by workers recovering from work injury

�� POL-120: Opioids, i.e., narcotic pain medications prescribed to injured workers

�� POL-03: Travel expenses and meal allowances of workers who must travel to receive medical treatment.

QUÉbEC

LAWS & ANNOUNCEMENTSHuman RightsOct. 18: Hearings began on controversial legislation making it illegal to give or receive government services if a person’s face is covered. Ostensibly designed to impose “religious neutrality” in the Québec civil service, Bill 62 effectively targets Muslim women who wear the traditional niqab or burka face veil. The new bill is a more moderate version of the so called “charter of values” that sought to ban civil servants from wearing turbans, yarmulkes, head scarves and other religious head wear.

qPiPSept. 14: QPIP premiums for 2017 will be $1.27 per $100 of insurable earnings, a decrease of $0.36 per $100, the Canada Employment Insurance Commission announced.

PensionsOct. 4: Retraite Québec reminded employers about the approaching Dec. 31, 2016 deadline to offer employees the chance to participate in an RVER (Régime Volontaire d’Épargne-Retraite—Québec’s version of the RRSP). The deadline applies to employers with 20 or more employees who don’t offer a company registered pension plan.

CASESLandmark Case upholds women’s Right to Continuous Pay equity AdjustmentsIn Québec, changed its pay equity law requiring employers to do a pay audit every 5 years, explain any inequalities between men and women and make the necessary wage adjustments. A coalition of unions contended that the change was unconstitutional and that employer’s obligations should apply on a continuous basis, and not just once every 5 years. The Superior Court agreed and struck down the contested provision in 2014. And now the Québec Court of Appeal has upheld the ruling, finding that failure to require continuous auditing and retroactive adjustments of discrepancies was a continuation of the systemic wage discrimination against women that the law was meant to eradicate [Quebec (Attorney General) v. Alliance of professional and technical personnel of the health and social services, 2016 QCCA 1659, Oct. 12, 2016].

SASKAtCHEWAN

LAWS & ANNOUNCEMENTS

Mental stressOct. 26: The government proposed an amendment that would establish the presumption that psychological injuries suffered by workers are work-related. Like many provinces, Sask. has already made post-traumatic stress disorder presumably work-related for first responders. But if the bill is adopted, Sask. would be the first province to extend the presumption beyond PTSD to other forms of psychological injury.

workers’ CompensationOct. 24: The WCB is cutting average workers’ comp premiums 7.5% to a 30-year low of $1.24 per $100 of assessable payroll. The 10¢ cut could make Sask.’s premiums the third lowest in Canada, depending on where other provinces end up setting their 2017 rates.

YUKON tERRItORY

LAWS & ANNOUNCEMENTS

JobsOct. 1: The Minto copper mine closed down its open-pit operations for the season, leaving 58 employees without jobs. The laid off workers, including mechanics, equipment operators and safety technicians were employed by Minto contractor Pelly Construction Ltd. Meanwhile, Minto officials are hinting at the possibility of additional layoffs in underground and support operations.

for more of these jurisdictions’ laws & announcements and cases, please visit www.hrinsider.ca.

Month in ReviewDecember 2016 | HRInsider.ca

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A lthough mandatory retirement and other forms of age discrimination are illegal, the human rights laws of most jurisdictions include a so called “savings clause” in their human rights legislation that essentially gives employee

benefit plans licence to discriminate on the basis of age—as well as other protected grounds such as marital status. The catch: The plan must be “bona fide.” The types of plans and forms of discrimination covered by the rule vary by province depending on what the savings clause actually says. Here’s a nationwide roundup.

FEDERAL: a. Ban on employment discrimination doesn’t apply to provisions in a pension or insurance fund or plan that are expressly listed in the regulations as not being discriminatory [Canadian Human Rights Act, Sec. 22]; and b. The list of such provisions is contained in the Canadian Human Rights Benefit Regs. which sets out in detail the participation, benefit and contribution rules and practices that pension, disability, health, life and other insurance and benefit plans and funds can adopt without committing discrimination.

ALBERTA: Ban on age and marital status discrimination doesn’t affect “operation of any bona fide retirement or pension plan or the terms or conditions of any bona fide group or employee insurance plan” [Human Rights Act, Sec. 7(2)].

BRITISH COLUMBIA: Ban on age, marital status, physical or mental disability or sex discrimination doesn’t apply to the “operation of a bona fide retirement, superannuation or pension plan or a bona fide group or employee insurance plan,” regardless of whether the is the subject of an insurance contract between the employer and an insurer [Human Rights Code, Sec. 13(3)(b)].

MANITOBA: a. Ban on employment discrimination doesn’t prevent employee benefit plans from making bona fide and reasonable distinctions, conditions, requirements or qualifications; b. Government may make regulations setting out which distinctions, conditions, requirements or qualifications set by employee benefit plans are bona fide and reasonable, whether provided for by individual contract, collective agreement or otherwise [Human Rights Code, Sec. 14(7)].

NEW BRUNSWICK: Ban on age discrimination doesn’t apply to: i. “termination of employment or a refusal to employ because of the terms or conditions of any bona fide retirement or pension plan;” ii. operation of the terms and conditions of a bona fide retirement or pension plan that have the effect of a minimum service requirement; or iii. operation of the terms and conditions of a bona fide group or employee insurance plan [Human Rights Act, Sec. 4(6)].

NEWFOUNDLAND/LABRADOR: a. Ban on age discrimination doesn’t apply to: i. prevent the operation of a good faith retirement or pension plan; ii. operation of the terms and conditions of a good faith retirement or pension plan that have the effect of a minimum service requirement; or iii. operation of the terms and conditions of a good faith group or employee insurance plan; b. Stipulates that the first exemption (subpara. i above) doesn’t apply to a good faith retirement or pension plan requiring a person to retire at an age designated in the plan [Human Rights Code, Sec. 14(6) and (7)].

NORTHWEST TERRITORIES: Ban on age, marital status and family status discrimination doesn’t affect the operation of any bona fide retirement or pension plan or the terms and conditions of any bona fide group or employee insurance plan [Human Rights Act, Sec. 7(2)].

NUNAVUT: Ban on age, marital status and family status discrimination doesn’t affect the operation of any genuine retirement or pension plan or the terms and conditions of any genuine group or employee insurance plan [Human Rights Act, Sec. 9(2)].

NOVA SCOTIA: Ban on employment discrimination doesn’t apply to prevent, on account of age, the operation of a bona fide pension plan or the terms or conditions of a bona fide group or employee insurance plan” [Human Rights Act, Sec. 6(g)].

ONTARIO: a. It IS discrimination to deny or make employment conditional based on enrollment in an employee benefit, pension or superannuation plan or fund or a group insurance contract between the employer and an insurer that makes distinctions, preferences or exclusions on the basis of age or other grounds protected by the Code; b. It does NOT violate the ban on sex, marital status or family status discrimination when [a discriminatory term or condition is in connection with the operation of] an employee superannuation or pension plan or fund or a group insurance contract between the employer and an insurer that complies with ESA requirements; c. It does NOT violate the ban on age discrimination when [a discriminatory term or condition is in connection with the operation of] employee benefit, pension, superannuation or group insurance plan or fund that complies with ESA requirements regardless of whether the plan or fund is the subject of an insurance contract between the employer and insurer [Human Rights Code, Sec. 25]; and d. “Group insurance” defined as insurance in which the lives and well-being of a number of persons are collectively insured under a single contract between an insurer and an employer, association or other person [Sec. 10(1)].

PRINCE EDWARD ISLAND: Ban on age and disability discrimination doesn’t affect operation of any genuine retirement or pension plan or any genuine group or employee insurance plan”[Human Rights Act, Sec. 11].

QUÉBEC: a. A distinction, exclusion or preference distinction based on age, sex or civil status in an insurance or pension contract, social benefits plan or public pension or public insurance plan is presumed NOT discrimination if its use is “warranted and the basis therefor is a risk determination factor based on actuarial data”; and b. Use of health as a risk determination factor in such contracts or plan is NOT discrimination [Charter of Human Rights and Freedoms, Sec. 20.1].

SASKATCHEWAN: Ban on age discrimination doesn’t prohibit operation of any term of a bona fide retirement, superannuation or pension plan, or any terms or conditions of any bona fide group or employee insurance plan [Saskatchewan Human Rights Code, Sec. 16(4)].

YUKON: Includes no bona fide plan exception

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Licence for Benefits Plans to Commit Age Discrimination

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SITUATIONA company installs video surveillance cameras in its parking lots in response to a rash of theft and vandalism incidents. Although employees aren’t the target, the cameras do capture some of their activities. The company posts signs at entrances warning of the cameras. Insisting that the cameras are the only feasible way to protect security, the company reassures employees that it won’t use the cameras to monitor their workplace behaviour or productivity. In fact, it doesn’t monitor the cameras aren’t monitored at all and uses them only to investigate incidents. Even so, employees claim that the cameras are an invasion of privacy and demand their removal.

QUESTION Does the company have the right to keep the cameras in place?

A. No, because it didn’t get employee consent to install them in the first place

B. No, because the cameras record worker activity, which is personal information

C. Yes, because it owns the property and can place surveillance cameras wherever it wants

D. Yes, because it has a legitimate security need for the cameras

ANSWER D. The company can maintain the cameras because they serve a legitimate security purpose.

EXPLANATION This situation is based on the facts of an Ontario case called Eastmond v. Canadian Pacific Railroad. The court ruled that the cameras could stay because:

�� The company notified employees about their presence;

�� They were used principally to monitor visitors and not to monitor employees for productivity or disciplinary purposes;

�� The videos were only accessible to “responsible management” and police and only in response to incidents;

�� They were located in public areas where the expectation of privacy was minimal; and

�� Alternatives such as fencing or security guards were ineffective and infeasible.

WHY WRONG ANSWERS ARE WRONG

A is wrong because employers don’t need consent to install video cameras if obtaining consent would thwart a legitimate purpose, and deterring theft or vandalism in the interest of protecting security is a legitimate purpose.

B is wrong because it’s okay to collect personal information, including tapes of employee activity, if, as in this case, it serves legitimate purposes and less burdensome methods aren’t feasible.

C is wrong because courts have repeatedly found that PIPEDA laws ban employers from installing video cameras on their own property for disciplinary purposes or to monitor employee productivity.

QuIZ

Can employer install workplace surveillance Cameras?

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A s an HR director, you understand that employees must receive at least the minimum overtime and other

benefits provided by your province’s employment standards laws. You also understand that these minimum protections don’t apply to managerial personnel. You might also think you understand the difference between an employee and a manager.

Unfortunately, the reality of employment standards doesn’t always correspond to the everyday reality of the workplace—particularly when it comes to determining who is and isn’t a manager. This is especially true if the person you’re classifying has supervisory responsibilities. Misclassifying employees who look like supervisors as managers is a common mistake that opens your organization to inadvertent underpayments. And carried out over a continuous period of time and/or applied to a large number of workers, these mistakes can lead to overtime and other employment standards class action lawsuits in the millions or even tens of millions.

How well do you understand the distinction between employees and managers? Here are 2 real life cases in which a court had to make that call—and the key factors they considered in each situation.

Case 1: Employee or Manager?SITUATION: A regional airline fires its station manager at an international airport in Québec. She sues for wrongful dismissal. The Canada Labour Code gives “employees,” but not managers, the right to sue for wrongful dismissal. The arbitrator rules that the station manager is a “manager” under the law and dismisses the complaint. The station manager claims she’s an “employee” and appeals the ruling.

QUESTION: Is the station manager an employee or a manager?

ANSWER: The federal appeals court says she’s a “manager” and dismisses the complaint.

EXPLANATION: It’s the nature of the work—rather than her title or place in the management chain—that determines whether she’s actually a manager under the law, the court explains. The determining factor is whether the employee’s primary responsibility is to manage. In this case, the station manager did have managing responsibilities:

�� She was the airline’s senior representative in the airport;

�� She had responsibility for local operations and customer service;

�� She was in charge of 7 employees;

�� Her responsibilities included personnel management, work scheduling, preparation of budgets, interaction with local airport authorities, maintenance of ground equipment and preparing monthly reports.

Even though her authority wasn’t absolute—she reported to a regional manager—she had sufficient autonomy and discretion to be considered a manager, the court says [Leontsini v. Business Express Inc.].

Case 2: Employee or Manager?SITUATION: A BC metal worker files a complaint with the Employment Standards Tribunal against the construction contractor he works for certain benefits, including overtime and statutory holiday pay under the BC Employment Standards Act (ESA). The Tribunal agrees that he’s an “employee” under the ESA and awards him the benefits. The contractor appeals, claiming that the metal worker is actually a manager.

QUESTION: Is the metal worker an employee or a manager?

ANSWER: The B.C. Supreme Court rules that he’s an employee and thus entitled to benefits under the ESA.

EXPLANATION: The definition of “manager,” according to the court, is a person whose principal responsibility is supervising and/or directing human or other resources. While the metal worker had some very minor supervisory duties, he didn’t have the responsibility that would make him a manager under the ESA, according to the court. Factors:

�� He worked at various construction sites, checking on whether work was done and providing what was needed to keep the work going;

�� The only policies he enforced related to wearing hardhats and attending the weekly safety meeting;

�� Although he monitored the work of 3 to 5 employees, he had no authority to hire, fire or discipline them

�� He had no authority to set or change work schedules, call employees into work or authorize overtime, vacation or leaves of absence.

The court concluded that these factors demonstrated that the employee was simply an employee and not a manager under the ESA [J.P. Metal Masters 2000 v. Director of Employment Standards].

TRAPS TO AVOID

Misclassifying employees as Managers

See “Know the Laws of Your Province” to see how your jurisdiction’s employment standards law defines “manager”

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In addition to the general minimum wage covering most employees, most jurisdictions establish separate rules for specific categories of employees like farm workers, students and commissioned salespeople—either an exemption from minimum

wage rules or a separate rate or formula covering employees in those categories. Here’s a summary of the exemptions and special rates in each part of Canada. Note: Since supervisors, managers and professionals are exempt from minimum wage and other employment standards requirements in all jurisdictions, they’re not listed in the Chart.

EMPLOYEES NOT SUBJECT TO PROVINCE’S GENERAL MINIMUM WAGE

FEDERAL: Minimum wage rules don’t apply to job training provided to apprentices who are: i. registered under the apprenticeship Act of a province; and ii. paid in accordance with wage schedules set out in that Act [Canada Labour Standards Regs., Sec. 11].

ALBERTA: a. Minimum wage rules don’t apply to employees who are: i. authorized real estate brokers; ii. salesmen registered under the Securities Act; iii. duly certified insurance agents paid entirely by commission; iv. students in a formal and approved course of training, an off-campus education program or an approved work experience program; v. film or video extras; and vi. counsellors or instructors at non-profit educational or recreational camps for children, the handicapped or religious purposes; [Employment Standards Reg., Sec. 8]; b. Separate minimum wages for salespersons (weekly) and domestics (monthly); ( Separate hourly minimum wage for liquor servers eliminated in Oct. 2016.)

BRITISH COLUMBIA: a. Separate minimum wage for: i. liquor servers (hourly); ii. live-in home support workers and camp leaders (daily); iii. resident caretakers (monthly); iv. farm workers employed on a piece work basis (based on volume or weight of crop picked); and v. farm workers employed on a piece work basis to harvest daffodils (based on gross number of bunches picked); [Employment Standards Reg., Part 4]; b. Minimum wage rules don’t apply to fishers [Sec. 37(a)]; c. Employees exempt from entire Act include: i. students working at the secondary school in which they’re enrolled or in a board supervised work study, work experience or occupational study class; ii. sitters; iii. persons receiving EI benefits as a result of working on a job creation project; v. persons working for post-secondary tuition financial credit under the Youth Community Action program; vi. persons receiving income assistance, youth allowances or disability allowances or benefits [Sec. 32].

MANITOBA: a. Code-wide exemptions for employees who: i. work as volunteers for a charitable or political organization; ii. work as beneficiaries under a rehabilitation or therapeutic plan or project; iii. receive training or work experience for a limited time through a program approved or implemented by a government agency or school board [Employment Standards Reg., Sec.2]; b. Minimum wage exemption for employees who both: i. are employed under

a training scheme implemented or approved by a provincial and/or federal government agency; and are paid a wage [Sec. 12]; c. Government can issue permit authorizing employer to pay less than minimum wage [Employment Standards Act, Sec. 85]; and d. Alternate minimum wage rates for construction and industrial workers.

NEW BRUNSWICK: a. Alternate minimum wage rates for: i. construction workers; and ii. counsellors and program staff at residential summer camps whose hours can’t be verified.

NEWFOUNDLAND & LABRADOR: No stated exemptions or separate rates.

NORTHWEST TERRITORIES/NUNAVUT: a. Act-wide exemptions for: i. employees employed in domestic work in a residence in which their employer normally lives; and ii. students employed in a work program as part of their curriculum [Employment Standards Regs., Secs.2-3].

NOVA SCOTIA: a. Minimum wage for inexperienced workers, i.e., less than 3 months’ experience, 50¢ lower than general minimum wage [Minimum Wage Order (General), Sec. 6(b)]; b. Separate minimum wage schedules for construction, forestry and logging workers; and c. Following employees also exempt from General Minimum Wage Order: i. persons employed in a private home by the householder to provide domestic service for a member of the employee’s immediate family or for 24 hours or less over a weekly period; ii. workers under age 16 working at a farm in in specific types of production work; iii. apprentices; iv. persons receiving training under government sponsored or approved plans; v. real estate salespersons; vi. automobile salespersons; vii. salespersons, other than route salespersons, paid in whole or in part by commission on sales for which offers are made outside the employer’s establishment; viii. Licensed insurance agents; and ix. persons working on fishing vessels [Minimum Wage Order (General), Sec. 2].

ONTARIO: a. Separate hourly minimum wages for students and liquor servers [ESA, General Reg., Sec. 10]; b. Separate daily minimum wages for hunting and fishing guides; [Sec. 10]; c. Following employees exempt from minimum wage requirements: i. students in recreational programs operated by a charitable organization; ii.

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employees subject to special Minimum wage Rules

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employees subject to special Minimum wage Rules Continued From Page 11

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students employed to instruct or supervise kids or as a student at a camp for kids; iii. live-in superintendents, janitors or caretakers of a residential building; iv. trainees in a course leading to registration as a registered nursing assistant; v. laboratory technologist trainees; and vi. radiological technician trainees [Sec. 5]; d. Separate minimum wage regulations adopted for: i. fruit, vegetable and tobacco harvesters; ii. residential care workers; iii. domestics, nannies and sitters.

PRINCE EDWARD ISLAND: No stated exemptions or separate rates.

QUÉBEC: a. Separate hourly minimum wages for workers earning tips and workers in clothing industry [Reg. Respecting Labour Standards, Sec. 4]; b. Separate minimum wages for fruit harvesters based on fruit and kilos picked [Sec. 4.1]; c. Following employees exempt from minimum wage requirements: i. students employed in non-profit organization that has a social or community purpose; ii. trainees in a recognized vocational training program; iii. trainees in a vocational integration program to help the handicapped exercise their rights with a view to achieving social, school and workplace integration; iv. employees entirely on commission who work outside the establishment and whose working hours can’t be controlled [Sec. 2].

SASKATCHEWAN: a. Following employees are exempt from the Act’s minimum wage requirements: i. employees in undertakings in which only members of the employer’s immediate family are employed; ii. sitters; iii. athletes while engaged in activities relating to their athletic endeavor; iv. employees with physical or mental disabilities or impairments who work for a non-profit in a program that is educational, therapeutic or rehabilitative; v. commercial fishers or commercial trappers [Employment Standards Regs., Sec. 3].

YUKON: a. Separate minimum wage rates for: i. domestics, farm workers, guides or persons employed by an outfitter; ii. employees who work on a piece work basis; and iii. employees paid in whole or in part by commission [Minimum Wage Regs., Secs. 3 and 4].