Higher wages, more vacation, more protected leave – what’s not to like?

On November 22, 2017, the Ontario government passed the Fair Workplaces, Better Jobs Act, 2017.

Employment-LawAccording to its summary, these changes were brought about because of a recognition that the economy is changing and many workers struggle to support their families on part-time, contract or minimum-wage work, and many more don’t have access to time off due to illness.

The changes brought about by the new law are significant and include the following:

·     An increase in minimum wage from $11.40 to $14.00 in 2018 and to $15.00 in 2019;

·     Three weeks’ vacation for employees who have worked five years or more;

·     Ten days of Personal Emergency Leave for all employees (not just those working in a business with 50 or more employees), two of which must be paid and in respect of which a medical note cannot be required by the employer;

·     An increase in Compassionate Care Leave from 8 weeks to 27 weeks; and

·     A new method of calculation of public holiday pay.

Many of the changes are effective January 1, 2018.  Other changes, including rules regarding scheduling of shifts, and payment for being on call, will come into play in January 2019.

It is difficult to argue with the idea of higher wages, more paid vacation, higher paid public holidays, and more job-protected leave time. These changes are consistent with the idea of building a caring society where people are paid fairly for their work and can enjoy some leisure time.  Looking at the changes strictly from the employee’s perspective, there is little not to like.

From the employer’s point of view, these new rules likely appear less rosy. While many people associate “employer” with large corporations, public institutions and successful companies with ample resources, the fact is that in 2015,  87.3 % of Ontario’s population was  employed by small and medium sized businesses. 1 While some of these small and medium sized companies may have little trouble adapting to the new changes, a study by the Canadian Center for Economic Analysis on the potential impact of this new legislation cautions that those small businesses with 20 or less employees may be particularly negatively impacted by the sudden significant increase in costs.2 There will also be the demands associated with compliance with the new rules which the Ministry of Labour has promised to vigilantly enforce through the hiring of more enforcement officers who will conduct more inspections, impose higher fines and publish the names of non-compliant businesses. 3

Some have suggested that rather than protect workers, the new legislation will encourage employers to adopt new technologies that will allow them to reduce their workforce.  It is also possible that some businesses will be forced to close because the costs are too much.  Each year thousands of businesses enter and exit the market place.  Over the coming years it will be interesting to track whether, in the wake of these legislative changes, there were a greater number of businesses exiting the Ontario market or an overall decline in jobs.

Developing ways to respond to the changing economy and fostering a caring and equitable workforce are positive initiatives.  It remains an open question whether this new law will be able to accomplish its goals.

Colleen Hoey is a partner at Mann Lawyers LLP and can be reached at 613-369-0366 or at Colleen.Hoey@mannlawyers.com.

1 https://www.ic.gc.ca/eic/site/061.nsf/eng/h_03018.html#point2-1.

2 http://www.occ.ca/wp-content/uploads/2013/05/CANCEA-Analysis.pdf

3 https://www.ontario.ca/page/plan-fair-workplaces-and-better-jobs-bill-148

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Letters of Reference – bad idea?

Hand writingEarlier this fall there was a program on the CBC’s “The Story From Here” which ran a segment about a woman named Jo who, during a job interview, learned that her former employer had refused to provide her with a reference.  Her former employer had adopted a “no references policy”.

Jo explained that she felt quite embarrassed by the experience.  The refusal seemed to suggest that she was not a good employee.  The prospective employer seemed to share that perception – she did not get the job.

The issue of whether to offer letters of reference to departing employees is one that employers sometimes struggle with.  According to the interview, there is a growing trend among employers towards the “no-reference policy” which is reportedly more common in the United States.

Reasons that employers do not want to provide letters of reference appear to be varied and include:

  • Not having anything good to say about the employee;
  • Concern that by providing a positive letter the employer will misrepresent the skills of the employee to others within their industry to the detriment of their own reputation; and
  • Fear of law-suits.

The law-suit fears seem to be based on two potential scenarios.  In the first, the employee sues their former employer for giving a false or malicious reference.   Employees could potentially also sue their former employer if the employer divulged confidential information that they were not authorized to disclose.

The other situation is one where the new employer sues the former employer for negligent misrepresentation.  For example, one could imagine a new employer being rather put out if the former employer had told them that the jeweller they were thinking of hiring was very trust worthy when in fact they were fired for theft.

A cursory examination of the case law did not turn up any recent cases in Ontario where one employer was suing another for a false reference. If other people know of any cases I would be interested in seeing them.

While some letters may be easier write than others, as a general rule I think a well-crafted letter of reference that is mutually agreed upon at the time of an employee’s departure is more likely to help than hurt both the employer and departing employee.

For an employee, receiving a positive letter of reference can help take some of the sting out of a termination and assist in transitioning to a new job.    From an employer’s perspective, an employee who is working elsewhere has less incentive to bring or maintain a claim for wrongful dismissal, particularly if the salary is the same (or better).  An employee who finds another job is said to have mitigated their losses.  Furthermore if it is a letter both parties sign off on and provided directly to the employee the risk that the employee will claim it was false or negligent would presumably be reduced.

A reference letter need not be long and it must be truthful but in most cases an employer can at least confirm the dates of employment, relate some of the specific job related tasks that the person performed in the course of their job and if possible, comment on a positive accomplishment or contribution the employee made to the company.

Treating a departing employee in a courteous and professional manner that enables them to transition more smoothly is in everyone’s interest.

This blog was adapted from an earlier article published in Faces Magazine’s November 2013 issue. Read the original here.

Welcome to Ottawa’s new employment law resource!

Employment, Human Rights and Civil Litigation lawyer, Colleen Hoey of Mann & Partners, LLP has created a website where Ottawa citizens can learn about employment law issues, read the latest opinions about recent employment litigation decisions from court, and learn what questions to ask to find the right lawyer for your employment needs.

Thank you for stopping by!

Colleen Hoey is an Ottawa-based lawyers practicing in the areas of Employment Law, Human Rights Law, and Civil Litigation at Mann & Partners, LLP. The articles on this blog are not intended to provide legal advice. Should you require legal advice, please contact Mann & Partners, LLP at 613-722-1500 or fill out our form to be contacted within 24 hours.