Canadian Labour and Employment Law

Canadian Fraud Law

Workplace Policies. Employment agreements. HR Management. Discipline and Dismissal. Litigation. We use our domestic experience and global perspective to keep you up to date.

U.S. Department of Labor Final Overtime Rules Halted

George Avraam Posted in Employment Standards, Legislative & Regulatory Changes
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Earlier this year, we wrote about the U.S. Department of Labor’s (DOL) publication of the Final Rule, which significantly increased the minimum salary an employee must earn to qualify for the “white collar” exemption and the highly compensated employee exemption under federal law (see our blog post here). However, on November 22, 2016, a federal court in Texas blocked the enactment of the amendments that were set to go into effect next week on December 1, 2016. Finding that the DOL had exceeded its authority in increasing the salary basis for these exemptions, the court entered a nationwide preliminary injunction against the amendments going into effect.

For further information about the court’s preliminary order and our recommended actions for employers with operations in the U.S., please read our client alert.

The Right to Remain Silent: Employer Mishandles Workplace Investigation (and Pays for It!)

Mark Mendl Posted in Termination of Employment

In a recent decision, Merritt v. Tigercat Industries, 2016 ONSC 1214, an Ontario court held that the employer did not have sufficient cause for dismissing an employee on the basis of his pending criminal charges and allegations by another employee of potentially related conduct, where the employer had failed to carry out a proper investigation into the matter. This case underscores the need to carry out an appropriate investigation before determining that termination, or any form of disciplinary action, is merited.

The case also brings clarity to the issue of whether an employee can refuse to answer questions in a workplace investigation that pertain to criminal charges brought against him. Continue Reading

BC Case Against Canadian Mining Company for Overseas Human Rights Violations to Proceed to Trial

Kevin CoonChristopher Burkett Posted in International Human Rights Compliance

On October 6, 2016, the British Columbia Supreme Court ruled that a lawsuit by Eritrean miners, who allege they were forced to work in a mine owned by Nevsun Resources Ltd, a Canadian mining company, can proceed to trial. Vancouver-based Nevsun had argued that the case should be dismissed and that any suit should be properly heard in Eritrea. Justice Abrioux disagreed, stating that “there is sufficient cogent evidence from which I can conclude that there is a real risk that the plaintiffs could not be provided with justice in Eritrea,” thereby paving the way for an unprecedented trial in a Canadian court. Justice Abrioux stated that “claims of crimes against humanity, slavery, forced labour and torture can go forward against Nevsun.” Continue Reading

U.S. Federal Agencies Issue Joint Guidance for HR Professionals Warning of Criminal Liability for Wage-Fixing and No-Poaching Agreements

George Avraam Posted in Compensation & Benefits, Legislative & Regulatory Changes
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Canadian businesses with operations in the United States should be aware that the US Department of Justice and Federal Trade Commission recently issued antitrust guidance for human resource professionals and others who are involved in hiring and compensation decisions. The guidance warns of criminal prosecution against companies, human resource professionals and other individuals for formal and informal wage-fixing or no-poaching agreements between companies. The agencies also encourage companies, human resource professionals and other individuals to quickly report antitrust violations to the Department of Justice under its Corporate and Individual Leniency Policies.

To learn more about the guidance, please read our client alert.

We also invite you to join our upcoming webinar: How to Be Your Company’s Superhero: Surviving Federal Agency Scrutiny of HR Practices. Our panel of top employment and antitrust lawyers, Mark Hamer, Cynthia Jackson, Celina Joachim, and Ryan Vann, will discuss the antitrust guidance, the recent Securities and Exchange Commission and Occupational Safety and Health Administration focus on confidentiality clauses, including release and waiver form language, and how you can be a superhero by proactively revising your company’s HR practices, forms, and compliance training, now. Register now for this complimentary webinar!

Event Details:

Date Wednesday, November 30, 2016
Time 12:00 pm – 1:00 pm PT; 1:00 pm – 2:00 pm MT; 2:00 pm – 3:00 pm CT; 3:00 pm – 4:00 pm ET
Contact Debra Pearlman at debra.pearlman@bakermckenzie.com

 

Minimum Wage Update: Increases in AB, BC, ON, PEI and SK

Jordan Kirkness Posted in Employment Standards

Minimum wages continue to rise across Canada. Recent increases have been implemented in British Columbia, Ontario, Prince Edward Island and Saskatchewan.  As well, Alberta’s NDP government has continued to pursue its goal of a $15 per hour minimum wage by 2018 by implementing incremental increases.  Several other provinces will see a further increase in their minimum wage in April.  Continue Reading

Upcoming Seminar – Navigating the Compliance Minefield – Part 2: Engaging Foreign Staff

George Avraam Posted in Firm News, Immigration
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Join Baker & McKenzie on Wednesday, October 26, 2016 for a live seminar at our Toronto office. In our seminar, Navigating the Compliance Minefield – Part 2: Engaging Foreign Staff, Stephanie MacIntosh and Carl Dholandas will discuss immigration compliance obligations for employers and provide guidance on how to make sure your business is inspection ready and transitioning from reactive to proactive practices. This seminar is part of our HR Hacks for a Less Complicated Workplace Seminar Series.

For the event details and to register, please click here.

Upcoming Conference – Global Mobility University

George Avraam Posted in Firm News, Immigration
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School’s Back in Session! Enroll in Baker & McKenzie’s Global Mobility University on Thursday, November 3, 2016 to participate in a full-day, interactive learning program designed to provide international HR, immigration, employment and tax professionals with an introduction to the legal and tax considerations surrounding employee mobility. All participants will be provided with course material, including checklists and takeaways, and will enjoy a networking reception with colleagues from peer companies after the program. The Global Mobility University will have a limited enrollment to ensure an ideal environment for an interactive learning experience. Continue Reading

You Want Me to Do What? Guidance for the Newly-Appointed Workplace Harassment Investigator

Jeremy HannSusan MacMillan Posted in Legislative & Regulatory Changes, Occupational Health & Safety

Last month, key elements of Bill 132, Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016 (“Bill 132”), came into force. Employers are now required to have comprehensive policies and programs in place to address workplace harassment, along with detailed investigative procedures to be followed in response to complaints or incidents of harassment.

The latter requirement has led many employers to ask whether investigating is enough or if the employer can still be liable if the investigator gets it wrong. The answer is two-fold. Employers need to follow a proper protocol for investigating to comply with Bill 132. However, employers also need to take appropriate corrective action where harassment is substantiated, otherwise they risk liability under human rights legislation or in civil cases. Reputational damage can also result if the case plays out in the media. Continue Reading

Federal Employers May “Downsize” Despite Recent SCC Decision

Jordan Kirkness Posted in Termination of Employment, Unions & Labour Relations

On July 15, 2016, we wrote about the Supreme Court of Canada’s recent decision in Wilson v. Atomic Energy, 2016 SCC 29 (“Wilson”).  In that case, the SCC held that most federally-regulated, non-union employees with 12 or more consecutive months of service can only be dismissed for “just cause”. See our earlier blog post here.

Following the Wilson decision, many federal employers were left wondering whether they still have the right to downsize or impose layoffs in response to a decline in their business.  Such employers will be happy to learn that “downsizing” imposed for legitimate business reasons is still possible (subject to certain restrictions).  Under s. 242(3.1)(a) of the Canada Labour Code, RSC, 1985, c L-2 (the “Code“), an adjudicator will not consider the complaint of an employee who has been laid off due to a “lack of work” or “discontinuance of a function”.

Continue Reading