PREGNANCY LEAVE AND PARENTAL LEAVE

Ellen's Question:My husband and I are expecting our first child at the end of 2018. We both work at the local bakery in Englehart, Ontario, and we are concerned for our positions there. How does pregnancy leave/parental leave work? What are we entitled to?

Thank you for your questions Ellen. In order to answer your questions, it is important that we look at what it means to be eligible, the types of leaves that are offered, and the statutory requirements.

1. Eligibility:

In Ontario, any individual who meets the definition of “employee” under Ontario’s Employment Standards Act, 2000, is eligible for either a pregnancy leave or parental leave.

2. Types of Parental Leave:

Ontario legislation provides for two types of parental leave. They are:

  • I. Unpaid Pregnancy Leave; and
  • II. Unpaid Parental Leave.

3. Unpaid Pregnancy Leave:

Unpaid pregnancy leave is available to an employee who is pregnant or recovering from a pregnancy.
An employee’s whose pregnancy ends in still birth or miscarriage prior to seventeen (17) weeks before her due date is not eligible for pregnancy leave.

4. Unpaid Paternal Leave:

Unpaid paternal leave is available to an employee who has become the birth parent of a child; has become the adoptive parent of a child; or has a relationship of some permanence with a parent of a child and who intends to treat the child has his/her own.

5. Requirements for Service and Notice:

In order to be eligible for a pregnancy leave or paternal leave, the employee MUST meet the statutory requirements regarding service and notice.

A. Service Requirements:

If an employee’s due date falls less than thirteen (13) weeks after they started working for their employer, they will NOT be entitled to pregnancy leave.
Employees are ONLY entitled to pregnancy leave OR parental leave after they have worked for their employer for at least thirteen (13) consecutive weeks.


B. Notice Requirements:

An employee is typically required to provide their employer with two (2) weeks’ notice from the start of their pregnancy leave or parental leave.
If requested by their employer, an employee must provide them with a certificate from a legally qualified medical practitioner stating her due date.
An employee is NOT required to provide their employer with advanced notice if she stops working due to:

  • 1. Pregnancy complications;
  • 2. Birth;
  • 3. Still birth; or
  • 4. Miscarriage.

If a child comes into an employee’s custody unexpectedly, an employee is not required to provide their employer with advanced notice of their parental leave.

6. Length of Pregnancy Leave/Parental Leave:

Pregnancy leave is normally a maximum of seventeen (17) weeks.

An employee who takes a pregnancy leave is also entitled to unpaid parental leave of up to sixty-one (61) weeks. If the employee did not take a pregnancy leave, and only takes a parental leave, they are entitled to sixty-three (63) consecutive weeks.

7. Summary:

So, Ellen, if you wish to take a pregnancy leave or your husband wishes to take a parental leave; remember that:

  • 1. In order to be eligible for pregnancy/parental leave you MUST have worked for your employer for at least thirteen (13) consecutive weeks;
  • 2. You must provide your employer with two (2) weeks’ notice from the start of your leave; and
  • 3. You do not need to provide two (2) weeks’ notice to your employer if you experience:
    • a. Pregnancy complications;
    • b. Birth;
    • c. Still birth; or
    • d. Miscarriage.

If you choose to take a pregnancy leave, you are entitled to seventeen weeks of pregnancy leave, plus an additional sixty-one (61) weeks of parental leave.

If you choose not to take a pregnancy leave, and your husband chooses to take a parental leave, he is entitled to sixty-three (63) weeks of parental leave.

8. Suzanne Desrosiers Professional Corporation:

For more information, or to book an appointment please contact Suzanne Desrosiers today, at suzanne@sdlawtimmins.com or 705-268-6492.

Retirement & Age Discrimination

Joanne’s Question: I am 62 years old and I am a Government Employee. Recently, my Employer made it clear to me that my position was going to be eliminated soon and suggested that I retire. Can they do that? What should I do?

Thank you for your question Joanne. No, your employer CANNOT terminate or suggest that you take an early retirement because of your age. That is DISCRIMINATION based on AGE.

Discrimination:
Discrimination is unequal treatment that results in disadvantage to an individual based on stereotypes rather than on their abilities or circumstances.

Under the Canadian Human Rights Act discrimination is unequal treatment based on:
1. Race;
2. National or Ethnic Origin;
3. Color;
4. Religion;
5. Age;
6. Sex;
7. Sexual orientation;
8. Gender identity;
9. Marital Status;
10. Family Status;
11. Genetic characteristics;
12. Disability; and
13. Previous convictions;

Age Discrimination:
Age discrimination in the workplace occurs when an employer allows an employee’s age to impact his/her decision to promote, demote, and terminate that employee.

Similar Case Law:
A. Legros v Conseil du Tresor, 2017 CarswellNat 5897
Ms. Legros worked as a Senior Policy Analyst for the Canadian Border Services Agency. In 2011-2012, the federal government required all government agencies to reduce staff and government spending.
More senior employees were offered a cash incentive based on years of service to retire early.
Ms. Legros who was 62 years old, wanted to take advantage of the cash incentive, but her Manager denied her request.
The Board found that her Manager did not approve Ms. Legros’ request because she was convinced that Ms. Legros was going to retire soon anyways.
The Manager’s decision based on Ms. Legros’ age was discriminatory. Canadian Boarder Services was ordered to pay Ms. Legros the following:
1. $15,000 for age discrimination; and
2. $10,000 for pain and suffering.

Summary:
Having looked at the relevant statue and similar case law, it is our position that your employer CANNOT force you to retire before you are ready to do so. If he did force you to retire, his actions would constitute discrimination based on age, and you would likely be successful in filing a human rights complaint with the Canadian Human Rights Commission.

Suzanne Desrosiers Professional Corporation:
For assistance in updating your employment policies and procedures, providing training to staff members, and/or obtaining general employment law advice please contact Suzanne Desrosiers today at suzanne@sdlawtimmins.com or (705) 268-6492.

Experience, Integrity, Results.

Workplace Harassment

Jacob’s Question: When I asked my Manager a fairly straightforward question, he answered me in a very condescending tone. He later apologized, and said he was having a bad day. I have never had a problem with my manger, but I found his response to be very demeaning. Is that workplace harassment?

Thank you for your question Jacob. In order to answer your question, it is first important to look at what is and is not workplace harassment.
1. What is Workplace Harassment?
Section 5 of Ontario’s Occupational Health and Safety Act defines workplace harassment as, “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.”
Section 5(1) of the Ontario Human Rights Code states that “every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of:
i) Race;
ii) Ancestry;
iii) Place of Origin;
iv) Color;
v) Ethnic Origin;
vi) Citizenship;
vii) Creed;
viii) Sexual orientation;
ix) Gender identity;
x) Gender expression;
xi) Age;
xii) Record of offences;
xiii) Marital status;
xiv) Family status; and/or
xv) Disability.”

2. Examples of Workplace Harassment:
Examples of harassment include:
i) Making rude/degrading comments;
ii) Spreading rumors about an employee’s family status; and/or
iii) Making fun of an employee because of his/her beliefs.

3. What is NOT Workplace Harassment?
Harassment does NOT include:
i) An isolated incident of a minor nature for which a person has promptly apologized;
ii) Strongly expressed opinions that are different from others;
iii) Free and frank discussions about issues or concerns in the workplace without personal insults; and/or
iv) The legitimate and proper exercise of management’s authority.

4. Answer to Jacob’s question:
After having looked at the legal definitions and various examples of workplace harassment, it is our opinion that harassment has NOT been made out in this case.

This incident did not amount to harassment because:
i) Supervisors and Managers are allowed to make mistakes. Poor management skills are not enough to transform a poorly handled situation into harassment; and
ii) This was an isolated incident of a minor nature for which your Manager later apologized.
See Motor Coils Manufacturing Ltd and Unifor, Local 520 (Steacy) Re, 2015 OLAA No.263, for a similar example.

5. Suzanne Desrosiers Professional Corporation:
For assistance in updating your employment policies and procedures, providing training to staff members, and/or obtaining general employment law advice please contact Suzanne Desrosiers today at suzanne@sdlawtimmins.com or (705) 268-6492.

Experience, Integrity, Results.

Equal Pay for Equal Work

Bill 148: “Fair Workplaces, Better Jobs Act”
Question: What is Equal Pay for Equal Work?

1. Bill 148 – “A Plan for Fair Workplaces and Better Jobs”

Bill 148 has made a number of changes to both the Employment Standards Act, 2000 and the Labour Relations Act, 1995. The Bill was passed on November 22, 2017.
One of the significant changes is referred to as “equal pay for equal work.”

2. Equal Pay for Equal Work:

Under the Employment Standards Act, when two employees perform substantially the same kind of work (similar work conditions, skills, and responsibility), an employer CANNOT pay one them less than the other on the grounds of:

i) Sex; and/or
ii) Employment.

3. Difference in Rate of Pay:

A difference in rate of pay is a difference in:

1. Hourly rate;
2. Salary;
3. Overtime rate; and/or
4. Commission rate.

4. Similar Work Conditions:

Similar work conditions include a similar:

i) Work environment (office or outdoors);
ii) Exposure to Weather (rain/snow; or
iii) Health and Safety Hazards (chemicals/heights).

5. Similar Skills:

Similar skills refer to the knowledge, physical skills, and motor skills needed to perform a job. Examples include:

i) Education;
ii) Training;
iii) Experience; and/or
iv) Manual dexterity.

6. Similar Responsibilities:

Similar responsibilities refer to the employee’s accountability and authority needed to perform his or her job. Examples include:

i) The number of decisions that he/she needs to make;
ii) Being accountable for the safety of other staff members;
iii) Acting in a supervisory capacity; and
iv) Being responsible for money;

7. Example:

Sam and Joe work as full-time Construction Laborers for Construction Co. in Timmins, Ontario. Joe started working for Construction Co. in 2007, and Sam started working for Construction Co. in 2016.
Both Sam and Joe have a Building Construction Technician Diploma from Canadore College. They are both responsible for blueprint reading, estimating residential structures, and wood framing.
While Sam and Joe perform the same work, work in the same establishment, use the same skills to perform their job, and have substantially the same responsibilities, Joe makes two times per hour what Sam makes.
Does this constitute a violation of equal pay for equal work under the Employment Standards Act?

8. Answer

In this case, the difference in rate of pay for substantially the same job is due to the seniority system. Joe has worked for Construction Co. since 2007, whereas Sam only started working for Construction Co. in 2016. As such, there is no violation of equal pay for equal work under the Employment Standards Act.

9. Suzanne Desrosiers Professional Corporation:

For assistance in updating your employment policies and procedures and/or providing training to staff members, please contact Suzanne Desrosiers today, at suzanne@sdlawtimmins.com or 705-268-6492.

Bill 148: “Fair Workplaces, Better Jobs Act”

Bill 148: “Fair Workplaces, Better Jobs Act”
Question: I own a pub and family restaurant in Timmins, Ontario, and am concerned about the impact that Bill 148 will have on my business. When will Bill 148 come into effect, and how will it impact my restaurant?

1. Enforcement:

If Bill 148 passes, it will come into effect on January 1st, 2018. All labor relations will be in effect six months after that date.

3. Proposed Changes:
Notable changes to Bill 148 include changes to:
1. Minimum wage,
2. Equal pay for equal work,
3. Overtime pay,
4. Scheduling,
5. Vacation and public holidays,
6. Personal emergency leave,
7. Family medical leave, and
8. Child death leave and crime related disappearance leave.

5. Equal Pay for Equal Work:

Bill 148 will require that casual, part-time, temporary, seasonal, or temporary help agency employees are paid the same amount as full-time employees that perform the same job.
If a part-time employee believes that they are not receiving the same wage as a full-time employee, they will be able to request a review of their wages, without fear of reprisal. The employer will then have to respond to that request with either:
1. An adjustment in pay or,
2. A written explanation as to why their wage is not changing.
Exceptions to the requirement for equal wages are based on:
1. The seniority system,
2. The merit system, and/or
3. Systems that determine pay by quality or production,
In other words, if at your restaurant you have a waitress that has been in your employment for twenty plus years, and another waitress that has been in your employment for five years, they do NOT need to be paid the same hourly wage.

7. Scheduling:
Bill 148 calls for employers to pay their employees a minimum of three hours if:
1. The employee has worked under three hours,
2. The employee was on call, or
3. The employee’s shift was cut short, or cancelled without 48 hours’ notice.
Bill 148 will also ensures that:
1. Employees have the right to request changes to their schedule after three months of employment without fear of repercussions, and
2. Employees can refuse to accept shifts without fear of reprisal if their employer asks them to work with less than four days’ notice.
So, in your business, if you schedule a waitress to work for a dinner shift, and they only end up working for one hour because it is not busy that night, you will be required to pay them for a minimum of three hours work.

9. Personal Emergency Leave:
Under Bill 148, employees will be entitled to ten days personal emergency leave. Two of those days will be paid, and eight days will be unpaid. The two paid days must be granted before the eight unpaid days.
Moreover, employers are no longer able to request that an employee to provide them with a medical note.

11. Child Death Leave and Crime Related Disappearance Leave:
Under Bill 148, if an employee’s child passes away, or disappears, they will be entitled to at least six months of unpaid leave.
If the employee is charged with the death or disappearance of that child, they will be unable to take this type of leave.

13. Recommendations:

Employers, please be SURE to:
1. Plan ahead,
2. Revisit and update employment contracts, policies, and procedures,
3. Prepare training ahead of time for all staff members,
4. Consider how you may be exposing yourself to potential claims and take action accordingly, and
5. Review the budget for increased expenses in:
a. Paid vacation,
b. Equal pay for equal work, and
c. Overtime pay.

2. Government Rationale for Bill 148:

Premiere Kathleen Wynne has stated that as it stands, many Ontario families are having a difficult time living off of part-time and/or contract employment. Bill 148 is designed to allow Canadian families to reach their full financial potential.

4. Minimum Wage:
Ontario is increasing its general minimum wage to fourteen dollars an hour on January 1st, 2018, and fifteen dollars and hour on January 1st, 2019.
Exceptions to the increase in minimum wage include:
1. Liquor servers,
2. Students under the age of eighteen,
3. Hunting and fishing guides, and
4. Homeworkers.
Therefore, as some of your employees are likely liquor servers, this increase in minimum wage will NOT apply to them. However, it is important to keep in mind that liquor servers will continue to receive the same percentage increases as the general minimum wage.

6. Overtime Pay:
Where an employer has an employee that wears a number of different hats, the rate of pay for each job title will differ.
Moreover, the hours that the employee has worked in both jobs will be counted towards the employee’s total weekly hours with respect to overtime.
For example, if, at your restaurant, you have an employee that has worked twenty-five hours waitressing, and thirty-five hours in the kitchen in one week, that employee will be entitled to overtime pay based on the combined hours of BOTH jobs.

8. Vacation and Public Holidays:

Bill 148 will ensure that employees have three weeks of paid vacation after five years of service with the same employer. It is important to note that employees are entitled to their average regular daily wage when taking vacation.

10. Family Medical Leave:

Family Medical Leave will allow employees to provide care or support to a family member that has:
1. A serious medical condition, or
2. Is at risk of death.
Employees will be able to take twenty-seven weeks of unpaid leave in a fifty-two-week period.

12. Penalties for Non-Compliance:
If employers are non-compliant with Bill 148 once it comes into effect, they may be liable to pay a fine between $350 and $1,500.
The proposed changes will allow the Director of Employment Standards to publish:
1. The names of the individuals who have been issued a penalty,
2. The description of the contravention,
3. The date of the contravention, and
4. The amount of the penalty.
This type of negative publicity could deter well-qualified individuals from applying at your place of business, and could discourage customers from visiting your restaurant.

14. Suzanne Desrosiers Professional Corporation:
For assistance in updating your employment contracts, policies, and procedures and/or providing training to staff members, please contact Suzanne Desrosiers today, at suzanne@sdlawtimmins.com or 705-268-6492.