Legl 314

Negligent Hiring

Hiring of an employee who the employer knew or should have known, based on a reasonable pre-hire investigation of the employee's background, posed a risk to others in the workplace ● Employer may have a duty to verify references, credentials, prior work and personal history etc. ●Duty to company and potential hire ●Consequence: May give rise to liability for negligence if losses are incurred by third parties due to negligent hiring! ●Particularly high standard of care if hiring employee who will be in a position of trust ●Police checks are required by law for some positions ●Credit checks are only allowed with applicant consent ●Headhunting agencies can be liable if they fail to do the background check for the employer additionally employer can be bound by inaccurate representations made to prospective employee

Best Practices With Contracts

- Employees - don't sign anything you do not understand! Request time to review the contract. - Ensure the contract covers any special promises or considerations - Termination clauses required special attention as do clauses dealing with post-employment obligations - Employers should not ask employees to sign contracts 'mid-stream' in the relationship - Use clear, unambiguous language - Incorporate policy or manuals by reference - Terms agreed to under duress or which are unduly onerous may be unenforceable - Contract cannot take away minimum statutory entitlements (only common law entitlements)

Citizenship Ceremony Leave

-90 day requirement -1/2 day leave

Domestic Violence Leave

-90 days of employment -10 days max/year -reasonable notice prior -can take without risk to job -equivalent or same job on return -unless stipulated elsewhere employer does not have to pay -considered continuous employment

Personal and Family Responsibility Leave

-90 days of employment -5 days max/year -Take without risk to job -Must grant and must provide same or equivalent job -No wages or benefits required unless stipulated otherwise -Considered continuous employment -reasonably soon notice must be provided prior to taking -documentation is not required by legislation but may be by policy -any days not used by employee do not have to be paid out if employment terminates

Death or Disappearance of a Child Leave

-90 days of employment -52 weeks if the child disappeared and up to 104 weeks if child died as of probable crime -eligible if the rust of probable criminal code offence -can take without risk of losing job

Employment Standards Legislation Alberta

-Alberta Employment Standards Code (ESC) -Employment Standards Regulation(ESR) Apply to all employees in Alberta except: -Employees under federal legislation ie; federal government employees, banking, interprovincial truckers, interprovincial radio and television -Employees or industries subject to differing standards or exempt from certain laws Ex. Police act, Post-Secondary learning act -Employees working outside of Alberta are normally governed by the laws where the work takes place -Unionized employees are covered by employment standards. However most of the minimum standards formed by statutes such as hours of work don't apply to workers under a collective agreement (union workers) for the most part grievances will be filed through their collective agreement not employment standards -In Alberta certain employees are exempt from some parts of ESC

Complaints to ESC

-Can be made by employee at any time up to 6 months before last day of employment -One pay period wait to see if issue is fixed on next pay statement unless the matter is deemed urgent -Complaints can be submitted online without any fees -Employers can't terminate employment because someone made or is about to make a complaint

Reservist Leave:

-Military reserves -Must have worked 26 weeks consecutively for employer before being entitled to leave -Unpaid leave and job protection when deployed -20 days unpaid leave for training/year

Advantages of Written Contracts

-Reduces misunderstandings ¤ Parties can clarify their promises while the relationship is on positive terms ¤ Provides certainty even if staff changes occur -Encourages the Parties to address the important issues ¤ Oral contracts tend to be 'missing' important terms which a court will have to imply in the event of a dispute -Provides Certainty ¤ Provides court with a clear record of the terms and conditions ¤ Provides parties with a clear record of their agreement which can prevent disputes -Provides certainty where the parties are agreeing to terms that are different than the normal common law entitlements. Ex. Notice period for termination -May allow employer to exert more control over ability to discipline when expectations are agreed upon in writing

Five Requirements before Imposing Liability for Negligent Misrepresentation

(1) there must be a duty of care based on a "special relationship" (2) untrue, inaccurate, or misleading statement (3) the representor must have acted negligently in making said misrepresentations (4) the representee must have relied, in a reasonable manner, on said negligent misrepresentation; ● Onus on employee to have done their homework ● Misrepresentation must be clear and factual not puffery(ie, a position advertised as full time permanent is not obligated to last till retirement) (5) the reliance must have been detrimental to the representee in the sense that damages resulted. ● Aggressive recruiting where an employer goes beyond normal means to hire an employee can also be charged damages (tort of inducement)

Long Term Illness and Injury Leave

-at least 90 days of employment -16 weeks max per year -must give medical cert prior to taking the leave or as soon as reasonable -without risk to job -same or equivalent job must be provided on return -employers not required to pay during this time unless stipulated otherwise -considered continuous employment

Parental Leave

-at least 90 days of employment -16 weeks max per year for birth mothers -must give medical cert prior to taking the leave or as soon as reasonable -without risk to job -same or equivalent job must be provided on return -employers not required to pay during this time unless stipulated otherwise -considered continuous employment ● birth and adoptive parents can take up to 62 weeks of unpaid parental leave. ● Leave can start any time after the birth or adoption of a child, but must be completed within 78 weeks of the date the baby is born or placed with the parents.

Maternity Leave

-at least 90 days of employment -16 weeks max per year for birth mothers -must give medical cert prior to taking the leave or as soon as reasonable -without risk to job -same or equivalent job must be provided on return -employers not required to pay during this time unless stipulated otherwise -considered continuous employment -Leave can start any time within 13 weeks leading up to estimated due date and no later than the birth -if misscarriage within 16 weeks of due date still receive maternity leave just not patrenal leave

Bereavement Leave:

-eligible for bereavement leave if they have been employed at least 90 days with the same employer -3 days of bereavement leave per year, not per incident -must be granted to eligible employees -can take this time off without risk to job -employers aren't required to pay or provide benefits during leave

Critical Illness Leave

-leave to care for critically ill -minimum 90 days of employment -36 weeks max for children and 16 for adult -must provide medical certificate -can take without risk to job -employers must grant and equivalent or same job must be offered on return -no requirement to pay unless in the contract or collective agreement -on this leave still considered continuous employment

Compassionate Care Leave

-time to care for family member with condition with high risk of death -must have been with employer for minimum 90 days -26 weeks max per year -Must provide medical certificate -Can take this time without risk to job -Employers must grant to eligible employees and give same or equivalent job upon their return -can be split up into minimum 1 week segments -employees on this leave still considered continuously employed

Three part test for discrimination from Law:

1. Does the law result in differential treatment on basis of a personal characteristic? 2. Is the personal characteristic one of the prohibited grounds listed in section 15? 3. Does the differential treatment discriminate in a way that reflects stereotypes or otherwise suggests the claimant is less worthy as a human being because of the characteristic?

Three Part Test for Bona Fide Occupational Requirement (Meiorin Test)

1. Is the rule rationally connected to job performance 2. Was the rule adopted in honest and good faith that it was necessary 3.Is rule standard reasonably necessary to accomplish the goal or purpose (must be able to show that accommodating that characteristic will impose undue hardship)

Three Sources of Law

1. Statutes 2. Common Law 3. Constitutions

Federal Law

10% of Canadian Employees fall under Federal jurisdiction • Banking • shipping and navigation • airlines • interprovincial rail/ busing • TV and radio • postal services • armed forces • Federal departments and agencies • Federal crown corporations Lawmaking process: ⦿ Bill is introduced into House of Commons (first reading) ⦿ Second Reading - debate(if passes - may go to committee) ⦿ Third Reading - final vote ⦿ Bill moves to Senate for three readings ⦿ If passes both houses, will take effect on either royal assent, a future date or upon proclamation

Provincial Law

90% of Canadian Employees fall under Provincial jurisdiction All areas of employment not listed under federal jurisdiction this includes federally incorporated businesses Lawmaking process: ⦿ Bill is introduced into legislature (first reading) ⦿ Second Reading - debate(if passes - may go to committee) ⦿ Third Reading - final vote ⦿ If passes third reading, will take effect on either royal assent, a future date or upon proclamation

Consequences under the Alberta Human Rights Act

Steps: -Complaint -Conciliation -Investigation -Tribunal hearing Results: -Dismiss complaint -Order employer to cease conduct -Order employer to make opportunity or privilege available to complainant -Order compensation for wages or income lost or expenses because of contravention (2 year max before complaint) -restore complainant to position as if no contravention occurred -interference with investigation can lead to a fine up to $10,000 -Hearings usually public -Can be appealed to Court of queen's bench

averaging agreements

They allow employers to schedule an employee, or group of employees, to work longer hours per day paid at the employee's regular wage rate. The employer will average an employee's hours of work over a period to determine overtime pay or time off with pay.

Employer Defences to Duty to Accommodate

Accommodation measures may create an undue hardship for one employer but not for a different employer ●Size of organization ●Financial cost ●Facility requirements/ Disruption of operations ●Interchangeability of workforce ●Safety ●Adverse affect on morale ●Affect on other workers ●Disruptions of collective agreement

Minimum Wage

Alberta ESR has three wage rates: ○ an hourly minimum wage for most employees; ○ a weekly minimum wage for many salespersons and professionals ○ a monthly minimum wage for domestic employees. ● To determine whether an employee who receives a commission or incentive-based pay is receiving at least the minimum wage, follow these steps: ○ Divide the total paid by total hours worked ○ If the result is less than minimum wage, then the employer must top up to minimum wage

Employment Contracts

All Contracts Require: -Offer -Acceptance -Consideration (something of value offered by both parties in a contract if contract is signed after starting work there is no consideration and contract is unenforceable) -An employment contract can be an oral contract and still be enforced but oral contracts are harder to enforce and even more difficult to determine the terms of -Courts may still find it necessary to imply missing terms, even if the contract is written -Can't contract outside the floor of rights if this is done the terms are void regardless of if the employee agrees or not. Statutes aren't impliedly added to contract and cannot be enforced by private lawsuits -Used less frequently with entry/low level positions that have a good job description that the employee is made aware of at time of recruitment. With time contracts for low level positions are becoming more common. -Contract can be found unconscionable if: Overly one sided, employer exploits lack of education or sophistication, and where employer exerted undue influence ie. sign or be fired -Employer can avoid appearance of undue influence by: using reasonable terms, make employee aware of unusual terms, clearly set out terms and provide copy of a contract, allow employee to obtain independent legal advice -Contracts can become obsolete if they no longer represent the relationship of the parties (such as the employees position is no longer the same) -Ambiguous terms in a contract are read against the employer 'contra proferentem'

Alberta Human Rights Act

Applies to: ▪ Employers in Alberta ▪ Business and services providers who provide goods and services 'customarily available to the public'. ▪Providers of accommodations ▪Administered by Alberta Human Rights Commission(Can make employer: apologize, provide a reference, commit to stopping repetition, reinstate employee, financial compensation for lost income and pain/suffering, make the employer take education, apply a non-discrimination policy) ▪Applies to all stages of employment (Hiring, Workplace, and termination) ▪Complaints must be made within a year of the contravention ▪Objective is to remedy not punish. Tries to restore the complainant to if the discrimination hadn't occurred. Discrimination: -Complainant has a characteristic protected from discrimination in human rights legislation -has experienced an adverse impact with respect to their employment -the characteristic was a factor in the adverse impact Characteristics: race, religious beliefs, colour, gender, gender expression, gender identity, physical disability, mental disability, age(only if 18+), ancestry, place of origin, marital status, source of income, family status or sexual orientation of that person or of any other person. Unless a bona fide occupational requirement justified for the position and done in good faith for legit business purpose No person shall: a)deny to any person or class services, accommodations, facilities that are normally for public b)discriminate against any person or clas with respect to any goods, services, accommodation, facilities customarily for public No Employer Shall: a)refuse to employ or refuse to continue to employ any person or b) discriminate against any person with regard to employment or any term or condition of employment

Alberta Employment Standards Branch

ESC is administered by "Alberta Employment Standards", Offices throughout Alberta, as well as telephone complaint service ○ Provides educational programs for employers ○ Conducts investigations and audits to ensure compliance ○Operates on a complaint basis (tips can be given anonymously but don't count as a formal complaint ○Can enforce a range of actions to achieve compliance: -Mediation, investigation, audit and prosecution -Order to employer to comply -Order education -Facilitate negotiation of settlement -Administrative penalties up to $10,000 per day

Termination without Cause and Notice

Employers must give termination notice of at least: Notice period / Length of employment 1 week / More than 90 days but less than 2 years 2 week / 2 years but less than 4 years 4 week / 4 years but less than 6 years 5 week / 6 years but less than 8 years 6 week / 8 years but less than 10 years 8 week / 10 years or more Employees must give written notice regarding ending employment of at least: Notice Period / Length of Employment 1 week / More than 90 days less than 2 years 2 week / 2 years or more Group Terminations: Special notice needed when terminating 50 or more employees within 4 weeks

Situations where Written Contracts are Required

Executive positions or when special issues are involved -Trade secrets and confidential information that can set information ownership, nondisclosure/nonsolicitation expectations -Useful for positions with high training expense for the employer where they can request reimbursement if the employee leaves before a certain period of time -Where employment needs to be clarified as "term" instead of "at will" -Employers can unilaterally change terms and enforce them if they grant themselves that ability in the original contract and make sure employees are made aware of future revisions

Meiorin SCC

Female forest fire terminated due to new fitness test. Employer had to prove that performing this test was necessary for the position.

Misrepresentation

Is a contract law and tort law issue - an employee and employer both have a duty not to misrepresent facts before hiring ○ Untrue statement of fact (not mere puffery or opinion) ○ Made during negotiations ○ Influences the other party to enter into the contract (employment contract) ○ Applies to interviews, credentials, resumes and other information given to the employer before hiring ○ Silence can be misrepresentation - ex. Failing to provide complete information ● Misrepresentation by a job candidate may constitute grounds for dismissal ● Misrepresentation by a potential employer may lead to liability for damages •This includes negligence as well as intentional ● Key Factors: Intentional/Accidental & Major or Minor, Is the requested information relevant to the position

Key Contract Terms

Job Description: -Include title, duties and responsibilities -Consider incorporating clause that allows employer to modify responsibilities (helps avoid claim of constructive dismissal) Remuneration: -Be mindful of minimum statutory entitlements -Bonuses or stock options, commission formula Term of Employment: -If contract is silent, default rule is that is that it will be deemed 'at will' or 'indefinite' -Term contracts will eliminate need to provide notice at end of contract -Requires diligence - If not formally renewed as term, may constitute indefinite term! Termination: -Notice still needs to meet minimum requirements -Clear language needs to be used if there is an intent to waive entitlement to notice -Employee must be made specifically aware of the sign off clause -Contract can specify special dismissal criteria -Employees who have been aggressively recruited may be entitled to more than common law notice. This should be addressed in contract. -Duty to mitigate: Employee is responsible for finding new work -If contract defines termination but not mitigation, mitigation on the onus of the employer does apply Probationary Period: -In this time employer can terminate without cause -If this period is longer than 3 months it MUST be in writing -Law is unsettled when considering entitlement of notice regarding if the duration of probationary period -If the contract is silent assume that notice will have to be given -Limitations on employee rights should be defined in writing Relocation: -Unless outright stated in contract can be grounds for constructive dismissal Benefits: -Ex. Dental Plans, vacation, perks, learning accounts Restrictive Covenants: -Non-disclosure Clause -Non-solicitation Clause -Non-Competition Clause(Need to protect business interests and need to be reasonable in duration and geographic area) Ownership of Intellectual Property: -Clarify ownership issues for property created during the period of employment Choice of Law Corporate Policies Entire Agreement Clause Inducement Independent Legal Advice Severability Clause Golden Parachutes Implied Confidentiality

Administrative Penalties

Less Serious Offences (not paying ot, not providing breaks): -First offence - $500 -Second offence - $1000 -Third offence - $2000 More Serious Offences: -First - $1500 -Second - $3000 -Third - $6000

Overtime

●Hours exceeding 8 a day or 44 a week ●Overtime applies to all employees regardless of salary structure (salaried employees get OT pay after 44 not 8) ●Minimum 1.5 wage rate ●Incentive pay employees are paid minimum wage x 1.5 ●Different industries have different overtime rules ● A manager who regularly performs non managerial duties is entitled to overtime.

Indirect discrimination

Policies or practices that appear to be neutral but have an adverse effect on the basis of a prohibited ground

Statutes

The Floor of rights Is a formal written enactment of a legislative authority that governs a state, city or country. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by legislative bodies; they are distinguished from case law or precedent, which is decided by courts, and regulations issued by government agencies. Provincial and Federal Governments have different jurisdictions for creating Statutes (Division of Powers) Largely determine the regulations on business in canada built on the basis of judge law Always overrides common law or equity if inconsistent.

Role of the Union in Accommodation

Union should take active role in accommodation process and share responsibility with employer to facilitate accommodation irrespective of collective agreements unless would lead to undue hardship

Anticipatory Breach of Contract

Where an employer makes an offer that is accepted then revokes the offer. Called anticipatory because it occurs before commencing employment. Employer will be liable for damages if employee can show: ○ Employer made an offer of employment ○ Employee accepted the offer ○ The Employer repudiated (deny truth) the contract, and ○ The Employee incurred damages (needs to be proven)

Systemic Discrimination

a pattern or practice of individual acts or rules in a corporate culture that permits or condones discrimination that creates a homogeneous workforce

Harrassment

● Annoying or abusive behaviour based on prohibited ground ● Not defined or mentioned in Alberta Human Rights Act but prohibits: ○ Public displays likely to expose a person or class of persons to hatred or contempt ● Jokes, hostile environment, unwanted attention/ advances etc. ●The test for whether a joke amounts to harassment is whether a reasonable person would find the conduct offensive: - Did the victim makes his or her feelings known? - Would be apparent to a reasonable person that the conduct is offensive or inappropriate? ie. poisoned work environment as a result of insults, degrading comments etc. ● The standards of interaction in the workplace will be considered too: ○ Ex. Norms for conduct in a bank v. norms for conduct on a drilling rig ● However, slurs and comments directly related to a prohibited ground of discrimination are unacceptable

Direct discrimination

when someone is treated unfavourably because of a personal characteristic protected by the law

Tests to Indicate Employee or Contractor

● Control Test ● Organization Test ● Risk Test ● Tools Test ● Exclusivity of relationship ● Intention of the parties??

Administrative Agencies

• Alberta Employment Standards Branch • Alberta Occupational Health and Safety ⦿ Administer government-imposed standards ⦿ May have investigative powers and authority to impose rulings on employers

The Common Law

• Law that has developed through decisions of judges. • Cases from higher courts become precedents for courts below them in the same jurisdiction • Can be overrode by statutory law • Many areas of employment law exist as "common law", ex. • Common law also includes most of our contract law and tort law Precedent: Earlier verdict helps determine future verdicts Binding: A binding precedent obligates judges to abide by that precedent in like cases Stare Decisis: Refers to the doctrine of precedent, according to which the rules formulated by judges in earlier decisions are to be similarly applied in later cases. Persuasive: Persuasive precedents can be used as consideration for similar cases but are not obligated Distinguishable: a court decides the holding or legal reasoning of a precedent case will/not apply based on how similar the cases are

Limitations of the Charter

• Only protects us from the government. Only the government must comply with the Charter. • Section 1 allows government to impose reasonable limits on our rights! • The government can 'opt out' of many of our Charter rights by applying section 33, the "notwithstanding clause". Oakes Test (SCC) for Reasonable Limit: (Test for the supreme court to apply reasonable limits to the charter) 1. Must be "an objective related to concerns which are pressing and substantial in a free and democratic society. 2. Proportionality Test: -Measures adopted must be carefully designed to achieve the objective in question and be rationally connected to the objective. - Should impair "as little as possible" the right or freedom in question. - Must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of "sufficient importance

Payment of Wages

○ Employees must be paid at least once per month. ○ Employees must be paid within 10 days after the end of each pay period. ○ If an employer intends to reduce an employee's wage rate, overtime rate, general holiday pay, vacation pay or termination pay, the employee must be notified before the start of the pay period in which the reduction is to take effect. ○ Certain deductions may be made from employee earnings. (Income Tax, Canada Pension Plan, Employment Insurance as well as deductions resulting from a judgement or order of a court) ○ If an employer wants to make other deductions, written permission must first be obtained from the employee(dental plan, company credit card, room and board etc) ○Employers may not deduct for cash shortages or loss of property where more than one person has access to the cash or property and written permission to deduct is required for sole access ○Employers cannot take deductions for faulty workmanship but can deduct for personal use of employers property may be limited based on evidence ○Employers can't deduct for uniforms ○ Employers can, with written authorization from the employee, reduce the employee's wages below the minimum wage by a maximum of: ÷ $4.41 for each day the employer provides the employee with lodging ÷ $3.35 for each meal consumed by the employee; deductions can't be made for meals not consumed

Other Employment Relationships

● Agent relationship ○ -may or may not be employees ● Employment Agencies - normally contract is with agency but if long term, may be deemed employees and result in statutory obligations for employer! ○ Court will apply common law control test, organization tests etc. to decide if agency employee or employer's employee. ● Permanent Part-time - 24hrs week or less ● Temporary Employees (fixed term employees). Are employees not contractors! ● Casual Employees - can decline work, not entitlement to termination notice/pay

Restrictive Covenants

● Employees in a fiduciary position owe special obligation not to misuse confidential information. ● Employers may also have employees sign a contract containing a restrictive covenant on hiring. ● A restrictive covenant may be allowed by the courts if it is reasonable and not an undue restriction on trade. (People need to be able to work in their trade) ●It's best to research restrictive covenants with former employers of new hires

Best Practices to Handle Misrepresentation

● Ensure contract allows employer to take disciplinary action or dismiss employee who is found to have misrepresented his background or experience. ● Include an attestation clause in contract. ● Conduct background checks. ● Employers have ongoing duty to maintain confidentiality of information obtained ● Ensure information provided is accurate and not misleading. ● Review job description for currency and accuracy. ● Recruiting team must be knowledgeable about the job and prospects. ● May be duty to disclose factors that will affect employment, ex. Upcoming layoffs, budget cuts, mergers, etc. ● Job offer should be in writing and contain all terms of employment and statement that written contract overrides all prior statements made during negotiations. ●Avoiding charges for inducement ○ Don't make promises about job security unless you can meet them ○ Consider the job security the employee is leaving and that your obligations may be more onerous if the employee has been induced to leave long term employment relationship. ○ Consider negotiating notice for termination up front before hiring. Terms should be in writing

Employment of Young Person's and Adolescents

● Entitled to the same rights as other employees 12 years and under: -Can only be employed in artistic endeavor -Can only be employed under permit issued by director of employment standards -Hours determined in approval process -During school can't work past 9 on weeknight or 11 on a weekend 13-15: -Any job deemed light work -Artistic Endeavours -Permit from director of employment standards -13-14 can't work during school hours or between 9pm and 6am can work 2 hours on school days and 8 on non school days -15 can't work between 12am-6am and can only work during school hours if enrolled in off-campus education program 16-17: -Can work in all fields except hazardous work -Can work in hazardous work with director of employment standards permit or integrated learning program like an apprenticeship -in retail and hospitality can only work between 9pm-12am with supervision and can't work 12am-6am -Not in hospitality can work between 12am and 6am with supervision and guardian's consent

Who is an employer under Human Rights act

● Is control exercised over working conditions and financial benefits ● The more the work life of individuals is controlled, the greater their dependency and, consequently, their economic, social and psychological vulnerability in the workplace and the more likely it is an employment relationship

Independent Contractors

● No vicarious liability for work of contractor ● Do not have to provide statutory benefits ○ Employment Standards Benefits ÷ Ex. Vacation, parental leave, overtime ● No income tax source deductions, T4's etc. ● No contributions to WCB, CPP or EI premiums to remit ● No obligation to provide common law or statutory notice on termination or pay in lieu ●Important to form a contract to determine if you're an employee or contractor rights of the contractor will be bound by the contract ● Classification is a question of fact in each case, regardless of how the parties characterize the relationship ● Court and government agencies are not required to accept the categorization given by the parties and will look at the true nature of the relationship ●Contract indicating "independent contractor" isn't the only indication Consequences of misclassification: -Vicarious liability of employer -Tax payments employer source deductions and employee loses ability to claim business expenses -Employment Standards liability such as unpaid holidays and benefits -Liability for unpaid CPP, WCB and EI premiums -Worker liability to collect GST -Insurance complications (most insurance distinguishes between contractors and employees)

Best Practices when employing Independent Contractors

● Written contract stating status ● Fixed term or project basis best ● Do not provide tools ● Offsite is best if possible ● Do not make deductions (employer) ● Clarify that worker has no authority to create obligations on behalf of the corporation ● Include an indemnity clause ● Do not pay professional dues ● Do not provide vacation, holiday or overtime pay, healthcare benefits ● Don't provide company uniform ● Contract should indicate contractor will obtain own insurance ● Avoid setting hours of work ● Do not demand exclusivity ● Do not provide other indicia of employment (Business cards)

Employees who are exempt from hours of work and rest periods

● managers, supervisors and those employed in a confidential capacity ● farm and ranch workers exempt from daily and weekly hours of work and rest; monthly days of rest requirements apply ● municipal police service members ● professionals, including agrologists, architects, certified or chartered accountants, chiropractors, dentists, denturists, engineers, geoscientists, information systems professionals, lawyers, optometrists, podiatrists, psychologists and veterinarians ● salespersons of automobiles, trucks, buses, farm machinery, road construction equipment, heavy duty equipment, manufactured homes or residential homes ● salespersons who solicit orders, principally outside of the employer's place of business, who are fully or partly paid by commission; this doesn't apply to route salespersons. ● licensed land agents ● extras in a film or video production ● counsellors or instructors at a non-profit educational or recreational camp for children Special Rules Examples: ○ Ambulance Attendants are permitted to work 10 hours an day or 60 hours a week before they are entitled to overtime pay ○ Construction workers - are not entitled to notice of termination or pay in lieu of notice of termination.

Exempt from Minimum Wage Rates

● real estate brokers ● securities salespersons ● insurance salespersons paid entirely by commission ● students in a work experience program approved by the Alberta government ● students in an off-campus education program provided under the School Act ● extras in a film or video production ● counsellors or instructors at a non-profit educational or recreational camp for children, handicapped individuals, or religious groups ● farm employees ● municipal police service members ● post-secondary academic staff

Record Keeping

●Employers must keep accurate records ●Records must be available for inspection by employment standards officers ●Records must be retained by an employer for at least 3 years after the record is made 14(1) Every employer must keep an up-to-date record of the following information for each employee: (a) regular and overtime hours of work(recorded daily); (b) wage rate and overtime rate;the date of any change to wage rates or overtime rates, and particulars of every change to them; (c) earnings paid showing separately each component of the earnings for each pay period; (d) deductions from earnings and the reason for each deduction; (e) time off instead of overtime pay provided and taken and ○ name, address and date of birth; ○ the date that the present period of employment started; ○ the date on which a general holiday is taken, ○ each annual vacation, ○ copies of documentation relating to leaves ○ Copies of work averaging agreements ○ Termination notices.

Hours

●Maximum Daily Hours - 12 hour work period ●Variance exceeding 12 hours must either be due to an emergency or following a permit from the director of employment ●Paid at least minimum wage + overtime if applicable when attending a meeting or training the 3 hour rule applies ●An employee needs written notice 24 hours minimum prior to a shift change and must have 8 hours rest between shifts ●Employees entitled to 30 minutes rest per 5 hours worked. Can be paid or unpaid determined by employer. If there are restrictions on what the employee can do on that break it must be paid. ●Employers must give: ○ one day of rest each week ○ two consecutive days of rest in each period of two consecutive weeks ○ three consecutive days of rest in each period of three consecutive weeks ○ four consecutive days of rest in each period of four consecutive weeks. ○ After 24 consecutive days of work, employees must be provided with at least four consecutive days of rest.

Minimum Pay

●Most employees are entitled to a minimum of three hours pay regardless of if they worked three hours or not ●Some employees have this same rule with two hours (school bus drivers, home care employees, non profit, community service, athletic programs, and 12-14 year olds on school days)

Vacation Entitlement

●Must be given and employees must take it ●Must work for one year before being entitled to vacation time ●Minimum paid vacations: -2 weeks with pay after each of the first 4 years of employment -3 weeks with pay after 5 consecutive years of employment ●Must be taken within 12 months of them being made available ●Must be given in an unbroken period unless employee requests otherwise ●Vacation pay for monthly salary = regular rate or monthly salary / 4.3% ●For those who don't receive a monthly salary minimum vacation pay is 4% of wages earned after fifth year of employment minimum pay is 6% ●Earnings used for calculated vacation pay: -Salary, hourly pay, commissions and other incentive pay; pay for time-off granted in place of overtime worked ●Earnings not included in calculation: -Overtime, holiday, termination pay -bonuses -expenses or allowances -gratuities ●Part-time workers get vacation time and pay ●Can be paid on each pay check or day before employee's vacation ●Change of ownership does not affect vacation pay or entitlement ●9 Holidays a year + three optional holidays

Employer's Duty to Accommodate

⦿ A shared obligation but the employer has primary responsibility for initiating ⦿ Employee must make needs known and supply information to assist in accommodation process ⦿ Must do so within the range of undue hardship ⦿ Undue hardship would substantially affect the viability or productivity of business ⦿ Customer preference is not a valid basis

Administrative Tribunals or Boards

⦿ Act in quasi-judicial manner and have hearings. ⦿ Must follow rules of procedural fairness but less formal than courts ⦿ May be appeal available to the courts ⦿ Have been given jurisdiction over many key areas: ex. • Union labour law • Workers' Compensation • Human Rights Commission • Occupational Health and Safety

Key Federal Employment Law Statutes

⦿ Employment Equity Act • Applies across Canada, addresses affirmative action initiatives for minorities, women and Aboriginal people ⦿ Canada Labour Code • Contains employment standards, health and safety and collective bargaining ⦿ Canadian Human Rights Act • Pay equity, human rights ⦿ Canada Pension Plan ⦿ Employment Insurance Act

Key Alberta Employment Statutes

⦿ Employment Standards Code ⦿ Alberta Human Rights Act ⦿ Occupational Health and Safety Act ⦿ Workers' Compensation Act ⦿ Freedom of Information and Protection of Privacy Act ⦿ Labour Relations Code

Employers obligations in mitigating harassment

⦿ Foster an inclusive workplace ⦿ Training for management may be advisable ⦿ Remove offensive images, graffiti as soon as possible ⦿ Respond promptly to complaints of harassment ⦿ Have a workplace harassment policy and goal of eliminating harassment in the workplace. ⦿ Circulate/Post the policy ⦿ Advise employees that their first step should be to inform harassers their conduct is offensive ⦿ Educate employees / awareness programs ⦿ Enact complaint process and make employees aware of their right to report harassment ⦿ Investigate complaints and promptly deal with allegations ⦿ Consider having impartial outsider investigate the complaint ⦿ Ensure fair process: ie separate interviews, confidentiality, right to counsel ⦿Employer are vicariously liable for discriminatory actions of their employees (they can make defences of awareness, diligence, and appropriate response)

Obligations of Individuals seeking Accommodation

⦿ Inform employer of need for accommodation ⦿ Support request with documentation, such as medical information, for example ⦿ Suggest appropriate accommodation measures ⦿ Allow employer reasonable opportunity to accommodate ⦿ Consider any reasonable accommodation options ⦿ Advise of changes in need for accommodation ⦿ Individual seeking accommodation has duty to accept any reasonable accommodation, even if it is not the individual's preferred option

Accommodation Advice Employers

⦿ Start by defining workplace standards in a manner that already takes into account differences in workers rather than make exceptions as people request them ⦿ Act in a timely manner to requests for accommodation ⦿ Assume the request for accommodation is being made in good faith unless there is evidence to the contrary ⦿ Obtain all relevant information about the employee's need for accommodation (get facts not stereotypes, consider experts) ⦿ Investigate alternatives. Individualization may be necessary ⦿ Be prepared to make changes and bear some costs - to the point of undue hardship ⦿ The burden of proving undue hardship lies with the employer - not onus on employee to show it could be done ⦿ Accommodation must be done in a manner that most respects the worker's dignity, privacy and confidentiality ⦿ Document Accomodation efforts both steps taken and not taken ⦿ Ensure continued suitability

Judicial Framework

⦿ Supreme Court of Canada ⦿ Federal Court system • Federal Court • Federal Court of Appeal • Tax Court ⦿ Provincial Court system • Provincial Court of Alberta • Court of Queen's Bench of Alberta • Alberta Court of Appeal

Constitutional Law

⦿ The Canadian Constitution is not a single document! ⦿ All other laws in Canada must comply ⦿ Key Constitutional Documents for Employment Law: • Constitution Act, 1867 - sets out the division of powers so we can determine if a matter is provincial or federal jurisdiction ⦿ Constitution Act, 1982 • Contains the Charter of Rights and Freedoms ●Courts empowered to strike down laws or government practices that contravene our Charter rights ●All federal and provincial laws must comply with Charter ●Establishes Fundamental Freedoms •Conscience and Religion •Expression, including freedom of the press and other media of communication •Peaceful assembly •Association

Examples of Accommodation that might be required

⦿ purchasing or modifying tools, equipment or aids, as necessary ⦿ altering the premises to make them accessible ⦿ altering aspects of the job, such as job duties, hiring an assistant ⦿ offering flexible work schedules ⦿ offering rehabilitation programs ⦿ allowing time off for recuperation ⦿ transferring employees to different jobs ⦿ using temporary employees ⦿ adjusting policies (for example, relaxing the requirement to wear a uniform) ⦿ Large employers may be required to look for reasonable accommodations in other departments or locations.