Employment Law Show 640 Toronto – S9 E01

Episode Summary

Employment agreements, COVID-19 layoff extensions and more on season 9 episode 1 of the Employment Law Show on Global News Radio 640 Toronto.

Listen below as Employment Lawyer and partner Jon Pinkus, Associate at Samfiru Tumarkin LLP, reveals your workplace rights in Toronto and the GTA on the Employment Law Show. Andrew shatters myths and misconceptions about severance pay, terminations without and for cause, workplace harassment, overtime pay, wrongful dismissal, constructive dismissal, duty to accommodate, independent contractors, temporary layoffs and more.

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Episode Notes

Has there been an update to COVID-19 layoffs?

The provincial government of Ontario has stated that the law that puts a limitation on employees who are temporarily laid off, has been extended until July of this year. Employers can also place employees on another layoff in July.

My contract had a stipulation about termination pay that lessens what I am owed. My mental health is suffering due to COVID-19, what should I do?

Most termination clauses are not enforceable and void and an employee in this situation will still be owed their full severance entitlements. It is important to contact an employment lawyer regarding your severance package.

I agreed to a reduction in pay temporarily, but my employer decided to let me go and give me severance based on my reduced pay. Is this allowed?

An employer cannot penalize an employee by reducing their severance entitlements. Another factor that is important to note in calculating severance for an employee in this situation would be how difficult it is to find other employment that is equal to the compensation and position they were in.

Why are employment agreements important?

There is a lot more to an employment agreement than just hours and compensation but also the rules that will govern an employee’s employment such as an employer’s right to transfer an employee, limit their ability to work within particular industries, limits to severance entitlements, etc.

Is it better to have a detailed employment agreement?

Generally, the simpler the agreement such as a phone call or an email, the better for the employee. There are however exceptions, such as bonuses put in writing or length of employment.

What should an employee look for before signing an employment agreement?

Speaking to an employment lawyer before signing an agreement is important. Some red flags to look for within an agreement would be termination provisions, non-competition clauses, rights to transfer, etc. Due to COVID-19, there could be inclusions in agreements regarding telecommunicating and working at the workplace.

Can the terms in an employment agreement be negotiated?

Terms are often not negotiable as employees are typically competing with other candidates for a position. However, employees who are being recruited could have more say in the terms of an agreement and should not sign a contract without consulting with an employment lawyer.

What options do employees have who have already signed an employment agreement?

Many employees are faced with the choice of signing an agreement or not attaining the position. If there is a termination provision within an agreement, once terminated, employees should still consult with an employment lawyer. Most termination provisions are not enforceable, and at times the entire contract is not.

My employer terminated my job a year ago. Am I too late to do anything about it?

For employees who have not signed a release, the limitation period is two years from the date of termination to bring forward a civil claim.

What should employees know about being put on a temporary layoff?

There has been no change to employment law regarding layoffs despite the pandemic. Temporary layoffs have been permitted but they can still be considered a termination by an employee and they can choose to pursue their severance instead of accepting their layoff.

My employer has changed the terms of my employment. What should I do?

Any significant change to the terms of employment such as a severe reduction in compensation, shift in schedule, etc. can be treated as constructive dismissal. Not all changes are considered a constructive dismissal; the change has to be significant and an employee cannot have agreed to the terms.

Can employees be put on an unpaid suspension?

Paid suspensions are permitted however unpaid suspensions are not and are typically constructive dismissals. An unpaid suspension can be treated as a termination.

If an employee’s company is being sold, are they being terminated from their position?

If a company has been sold and there is new ownership, the employees previously employed are considered to be terminated. If the new employer offers the employee the position with similar terms, the owner will have to take into account previous years of service in regards to severance entitlements.

Can I refuse to return to work when re-called due to a fear of COVID-19?

If an employee is unwilling to return to work due to general anxiety and not specific concerns of contracting of COVID-19, their employer can choose to treat this as an abandonment of their position. Employees in this situation should communicate with their employer and request a potential medical or personal leave of absence.

What is the age of mandatory retirement?

There is no age of mandatory retirement and it is effectively outlawed in Ontario. An employer cannot terminate an employee due to their age as it is a human rights violation.

My employer is refusing to pay me overtime as they say I’m a manager. What should I do?

If an employee is actually considered a manager, under the employment standards act there could be an exemption to overtime pay. However, if an employee is a manager in name only, there could be overtime entitlements.

My employer wants me to switch from being an employee to an independent contractor. What are my options?

It is important to determine what the qualifications are for an independent contractor and an employee as they are often misclassified. If a worker is still working exclusively for an employer/company and duties have remained the same, they are still considered an employee.