Employment Law – An Overview

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April 20, 2012

Presented for: Professional Municipal Administrators

Annual MeetingCorner Brook, NL

Presented by:

Jamie Martin

Basic Assumptions

No union

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Basic Assumptions

Independent contractor or employee?

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Basic Assumptions

Constructive Dismissal:

Intolerable employment situation Change in duties Change in location Implied terms of employment

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Hiring

Human Rights Considerations

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Hiring

Terms and Conditions of Employment

Policy Manual Benefits (sick leave, vacation leave, STD/LTD,

etc.) Internet usage Conflict of interest Acknowledgement of Receipt by Employee Respectful behaviour / Harassment

Letter of Engagement

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Hiring

Identify (where applicable) in letter:

Position Salary Benefits Termination Provisions, if any

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Restrictive Covenants

Non-solicitation

Non-competition

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Duties During Employment

Occupational Health and Safety – safe workplace

WHSCC – s. 89.1: Obligation to re-employ Not applicable if less than 20 employees Penalties

Human Rights

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Pre-Termination Considerations

Human rights considerations Termination for cause Termination without cause

What is the employee’s entitlement?

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Human Rights Considerations: Prohibited Grounds of

Discrimination race colour nationality ethnic origin social origin religious creed religion age

disability disfigurement sex sexual orientation marital status family status source of income political opinion

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Source: Human Rights Act, 2010

Terminations with Potential Liability

Under the Labour Standards Act and Human Rights Act, 2010

Pregnant employee Employee currently on pregnancy or parental

leave Protected under s. 9(2) of the Human Rights Act: Where

this Act protects an individual from discrimination on the basis of sex, the protection includes the protection of a female from discrimination on the basis that she is or may become pregnant.

Employee on disability leave Mandatory Retirement

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What Constitutes Just Cause?

Theft / Fraud / Dishonesty Insolence / Insubordination Incompetence Lateness / Absenteeism Conflict of Interest Sexual Harassment

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Just Cause Considerations

Employers should consider: Circumstances surrounding alleged

misconduct Level of seriousness of alleged misconduct Extent to which the alleged misconduct

impacted upon the employment relationship

Question: Is there another option, short of dismissal?

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Just Cause Considerations

Do you ever pay severance if you have just cause?

“it depends” Only pay to obtain a Final Release Make sure that it is “without

prejudice” Do not pay too much

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Termination Without Cause

Statutory Entitlement (LSA notice) Employment Contract? Reasonable notice at common law

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Termination Payments

LSA Individual Termination Notice:

Length of Employment Notice RequiredLess than 3 months None3 months, less than 2 years 1 week2 years or more, less than 5 years 2 weeks5 years or more, less than 10 years3 weeks10 years or more, less than 15 years 4 weeks15 years or more 6 weeks

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Source: Labour Standards Act

Mass Terminations (Labour Standards Act)

S. 57 of Act Greater than 50 employees within a 4 week period Greater than 50, less than 200 employees – 8 weeks Greater than 200, less than 500 employees – 12

weeks Greater than 500 employees – 16 weeks Does not apply in respect of employees whose

contracts of service have existed for less than 1 month

Required to notify Minister

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Terminations

Rule of Thumb??

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Termination Payments

Reasonable Notice at Common Law: Age Length of Service Salary Level Position Inducement Wallace factor / Bad Faith

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Termination Documents

Structuring the severance package Drafting the termination letter Final release

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Structuring the Severance Package

For cause – no package Without cause:

1. Employment Contract Fixed term = no severance? Is there a termination clause?

2. No Employment Contract LSA entitlement Common law (including LSA minimums)

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Working Notice Considerations

Productivity Ability to look for other work

Interviews Outplacement

No guarantee of employment Retention bonus

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Lump Sum vs. Salary Continuation

Prospects of re-employment Skills Education Age

Access to benefits Personal circumstances

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Mitigation Considerations

Definition of “alternative employment”

“Clawback” (i.e. windfall)

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Structuring the Package

Other issues:

Bonus/variable compensation

Benefits and pension

Perks Car

Shares/options Company property Outplacement References Contribution to

legal fees

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Drafting the Letter

Identify reason for dismissal?

List what employee gets no matter what: Wages Vacation pay LSA notice and severance, if any Minimum benefits

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Drafting the Letter

Set out the “offer” Outplacement and reference (if any)

Conditional or not? IP / confidentiality / fiduciary

obligations Return of Property Record of Employment (ROE) Deadline for acceptance

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Drafting the Letter

Use plain language Be gentle Employer contact Timing

Middle of day, middle of week

To sign, or not to sign?

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Release

Is one necessary? When?

“Soft Release” option – put release language in the termination letter

Release and statutory / earned benefits

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Release

What should be included? Release of liability (LSA, HRC) Indemnity (CRA, CPP, EI) Specific reference to statutory claims (LSA) No admission of liability Confidentiality / non-disclosure Non-disparagement Independent Legal Advice

They won’t sign, what do I do?

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Executing the Termination

Termination for Cause Pre-meeting considerations The termination meeting Post-meeting considerations Punitive/aggravated damages References:

Confirmation of employment Comment on performance

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Things in Between:Specialized Topics

Duty to Accommodate

Social Media

Long Term Disability (LTD)

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Duty to Accommodate

Undue Hardship

Mental Illness / Addiction

Child Care Obligations

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Social Media

Tool for Hiring (Background checks)

Tool for Firing (Causes) Facebook Revelations

Internet and cell phone usage

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LTD – Handling Disability Claims

Human Rights Considerations

When to Terminate / End Relationship

Frustration of Contract

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Conducting Workplace Investigations

Independence of Investigation Qualified Experienced Investigator Planned Investigation

Gathering of Evidence Due Process to all Parties Objective Assessment of Evidence

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Conclusion

When in doubt, makethecall.ca !

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