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Special thanks to co-presenters, Krissy Katzenstein and Kaitlin Thompson.

With a surge in layoffs taking place over the past year, many of those originally hired to diversify the workplace have been impacted, and studies show that inclusion, diversity and equity (ID&E) professionals have been affected by layoffs at a higher rate than others. The harm? Other than potentially hurting employee morale and sidelining efforts to improve ID&E in the workplace, employers risk exposing themselves to litigation.

In this installment of ID&E IMPACT, our labor and employment team in the US and Canada explore employer concerns including an uptick in discrimination and harassment claims, the proliferation of claims based on pay disparity, bias claims arising from the use of AI in recruitment and hiring, and practical tips to mitigate risk from an ID&E perspective. 

Click here to watch the video.

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Join us for a four-part webinar series as our US moderators welcome colleagues from around the globe to share the latest labor and employment law updates and trends. US-based multinational employers with business operations in Asia Pacific, Europe, the Middle East and Africa, and the Americas regions will hear directly from local practitioners on the major developments they need to know, and come away with practical tips and takeaways to implement.

In each 60-minute discussion, we will explore:

  • The impact of the current economic and political climate on multinational employers
  • The current restructuring and cost-cutting landscape (benchmarking & jurisdiction-specific hurdles to plan for)
  • New significant legislative developments
  • Local hot topics in the inclusion, diversity and equity (ID&E) space

We look forward to welcoming you at the sessions relevant to your business — no passport or line ups for customs necessary!

ASIA PACIFIC
Australia, China, the Philippines and Singapore
Wednesday, May 3, 2023
3 pm PT/ 6 pm ET
Click here to register.

EUROPE
France, Germany, the Netherlands, Spain and the UK
Wednesday, May 10, 2023
9 am PT/ 12 pm ET
Click here to register.

THE MIDDLE EAST AND AFRICA
Egypt, Saudi Arabia, South Africa, Türkiye and the UAE
Wednesday, May 17, 2023
9 am PT/ 12 pm ET
Click here to register.

THE AMERICAS
Argentina, Brazil, Canada, Colombia and Mexico
Wednesday, May 24, 2023
9 am PT/ 12 pm ET
Click here to register.

To view these programs in a different time zone, click here. 
Please “register” for a copy of the recording and materials if you are unable to attend live.

To view the complete roster of presenters for each regional program, click here.

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Special thanks to Jose (Pepe) Larroque, Carlos Martin Del Campo and Javiera Medina-Reza.

The Mexico Ministry of Labor and Social Welfare (STPS) has announced that it will carry out an estimated 42,000 inspections in 2023. The inspections carry the possibility of significant fines and penalties issued per violation, per employee. It is imperative for global employers with operations in Mexico to train personnel and response teams on best practices for managing potential inspections and mitigating risk, including maintaining all necessary information and documents that must be supplied during an inspection.

In this Quick Chat video, our Labor & Employment partners in Mexico along with the Managing Partner for Baker McKenzie’s Mexico offices discuss what to expect from an inspection and outline the penalties for noncompliance. They also share insights from the field, discuss the potential defenses and warn against the possible registration cancelation for specialized service providers.

Click here to watch the video.

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On March 20, 2023, Bill 79, Working for Workers Act, 2023, carried on a first reading in the Ontario legislature. If passed, Bill 79 will significantly amend several employment-related statutes and expand on legislative changes introduced in the Working for Workers Acts, 2021 and 2022.

Summary of Key Changes

The most important potential changes include:

  • Mass Termination: Employees who work remotely from home will be included in the count for mass termination provisions under the Employment Standards Act, 2000 (“ESA“). The result is that remote employees will receive the same eight-week minimum notice of termination or pay-in-lieu as their in-office colleagues. Currently, the meaning of “establishment” under the mass termination provisions only encompasses the physical location at which an employer carries on business, and does not include an employee’s private residence. If Bill 79 is passed as currently drafted, the proposed amendments to the mass termination provisions will come into force on the later of July 1, 2023, or the date on which Bill 79 receives Royal Assent.
  • Health and Safety: The maximum fine that may be imposed on a corporation convicted of an offence under the Occupational Health and Safety Act will increase from $1.5 million to $2 million.
  • Reservist Leave: The Employment Standards Act, 2000 will be amended to entitle an employee who is in treatment, recovery or rehabilitation in respect of a physical or mental health illness, injury or medical emergency that results from participation in certain operations or activities to reservist leave. Further, reservists who are deployed to emergency operations inside Canada will be entitled to take this leave immediately regardless of the length of their employment, and the length of employment required to take this leave for all other reasons will be reduced from three months to two months.
  • Personal Information in Post-Secondary Education: Section 15 of the Ministry of Training, Colleges and Universities Act will be amended to permit the collection, disclosure and use of personal information for purposes related to certain employment programs and services. This includes disclosing personal information to persons or entities that administer, evaluate or deliver employment programs or services funded by the Ministry of Labour, Immigration, Training and Skills Development for the purpose of administering and delivering those programs or services.
  • Temporary Foreign Workers: The Employment Protection for Foreign Nationals Act, 2009 will be amended to increase penalties employers and people who are convicted of taking possession of or retaining a foreign national’s passport or work permit. For individuals, the penalty will increase to a fine of not more than $500,000 and/or imprisonment for a term of not more than 12 months. For corporations, the penalty will increase to a fine of not more than $1,000,000.
  • Job Information Transparency: Employers will be required to provide employees starting a new job with information about their job, such as pay, work location and hours of work, and the date by which that information needs to be provided. These draft regulations have not been published yet, but we will continue to monitor this significant amendment closely.

Continue Reading Bill 79, Working for Workers Act, 2023 Carries on First Reading, with Potential for Major Changes Ahead
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We are pleased to share a recent Benefits Canada article, “Employers can’t rely on original termination clauses when employee responsibilities increase: court,” with quotes from George Avraam. A recent Ontario Court of Appeal decision upheld a motion judge’s award of over $400,000 to an employee on the basis of the changed substratum doctrine. The case involved a unique set of facts where an executive-level employee’s job changed without a formal promotion.

Click here to view the article (originally published in Benefits Canada) and read our blog post further discussing the case here.

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Special thanks to Oscar Ramirez (articling student in our Toronto office) for co-authoring this blog.

In Celestini v. Shoplogix Inc., 2023 ONCA 131, the Ontario Court of Appeal recently upheld a motion judge’s award of over $400,000 to an employee on the basis of the changed substratum doctrine.

What is the changed substratum doctrine?

The changed substratum doctrine recognizes that the employment relationship evolves over time such that sometimes it may be inappropriate to apply the provisions of an out-dated employment contract to a job that has changed significantly. The doctrine applies in situations where the employee’s duties have fundamentally expanded to a point where the underlying employment contract has substantially eroded, or it can be implied that the employment contract could not have been intended to apply to the employee’s latest role.

Factual background

In 2005, Mr. Celestini became Shoplogix Inc.’s Chief Technological Officer through a finance arrangement with a venture fund. As part of the deal, he would step down as Shoplogix’s CEO and serve as its CTO under a written employment contract, which he signed in 2005. The employment contract limited Mr. Celestini’s entitlements upon termination of employment.

In 2008, Mr. Celestini and Shoplogix entered into an Incentive Compensation Agreement (“ICA“) which significantly altered Mr. Celestini’s bonus entitlements. Shoplogix did not amend the 2005 employment contract at this time.

There was an expansion of Mr. Celestini’s workload and responsibilities that coincided with the execution of the ICA and a change in leadership. His new responsibilities included: “managing important aspects of sales and marketing; directing managers and senior staff who were reassigned to report to him; travelling to pursue international sales; handling all of the company’s infrastructure responsibilities; and soliciting investment funds.”

In 2017, Shoplogix terminated Mr. Celestini without cause. Shoplogix took the position that Mr. Celestini’s rights were governed by the employment contract he signed in 2005. But Mr. Celestini argued that the termination provisions in the 2005 contract were unenforceable because of the substantial changes to his position, and he was therefore entitled to reasonable notice at common law. He claimed he was entitled to common law damages for wrongful dismissal on the basis that Shoplogix breached the implied term to provide reasonable notice of termination.

Continue Reading The Changed Substratum Doctrine Strikes Again – Ontario Court of Appeal Upholds Massive Damages Award Where Employee’s Duties Significantly Expanded
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Ontario’s provincially-regulated employers will have to determine whether they must provide naloxone kits at their workplace by June 1, 2023.

Naloxone is a drug that can temporarily reverse the effects of an opioid overdose, and naloxone kits are designed to combat opioid addiction and overdose.

Last year, Ontario’s Bill 88, Working for Workers Act, 2022 introduced significant changes to a number of employment-related statutes. One of those changes was the new obligation under Ontario’s Occupational Health and Safety Act (the “OHSA”) requiring employers to provide naloxone kits when they become aware of a risk for a worker of having an opioid overdose at the workplace. The Government of Ontario has provided some guidance on the requirements that you can find here.

The first step for employers is to assess whether these requirements will apply to their workplace. The OHSA requires that employers provide and maintain a naloxone kit where an employer becomes aware, or ought reasonably to be aware, that there may be a risk of a worker having an opioid overdose at a workplace where that worker performs work for the employer. An employer will only have to comply with the new naloxone kit requirements if that applies.

An employer who must provide a naloxone kit in their workplace must follow the new requirements outlined by the OHSA. Notably, they must:

  • provide and maintain/store a naloxone kit, the contents of which are prescribed by the OHSA;
  • provide at least one naloxone kit in each workplace in which they are aware, or ought reasonably to be aware, of the risk of one of their workers having an opioid overdose (note that employers may have to provide more kits at the workplace if that is a reasonable precaution in the circumstances); and
  • at any time there are workers in the workplace, ensure a worker is trained to use the naloxone kit and administer naloxone (complying with the training requirements that are outlined in the OHSA), and ensure that the kit is in the vicinity of a worker trained to use the kit.

Key Takeways

These requirements will impose significant new obligations on employers; Ontario employers should be familiar with what triggers these naloxone kit obligations. Employers should first determine whether the legislation applies to their workplace. If so, then the employer should ensure that they meet all of the applicable OHSA requirements when they come into force on June 1, 2023 to avoid penalties under the OHSA. Impacted employers will also have to consider how these new requirements intersect with their decisions on managing worker impairment from drugs and meet their duty to accommodate employees under Ontario’s Human Rights Code. Employers should also consider how naloxone kits fit into their emergency procedures.

If the new requirements do not apply to an employer’s workforce, then we recommend that such employers still be familiar with what triggers these obligations in case they apply in the future.

Also note that Ontario’s Workplace Naloxone Program is currently providing support to employers who are required to comply with new requirements by providing free naloxone training for up to two workers per workplace and/or one free nasal spray naloxone kit per workplace.

If you have any questions or need assistance with any of the above, please contact someone from our team.

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Special thanks to Sarah Adler, Immigration Legal Counsel.

In our latest Global Immigration and Mobility Video chat, our immigration and mobility attorneys explore the most recent changes in Canadian immigration law introduced in 2022; as well as some updates and anticipated changes to consider as we look ahead towards 2023. The 10-minute video covers the following:

  • Updates to the National Occupational Classification Codes
  • Prevailing wages
  • Compliance and location of work requirements
  • Processing times of immigration applications
  • Expansion of the GTS LMIA Category B occupations list 
  • Resumption of Express Entry selection draws
  • Expanded work authorization opportunities

Click here to watch the video.

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In a recent episode of Canadian Justice, Andrew Shaw joined a panel about the complicated employment law issues surrounding working remotely and return to work policies following the pandemic. Andrew discussed a hybrid work model, providing reasonable notice to employees of the requirement to return to work, employee time theft and much more.

Click here to watch the interview.

This interview was originally posted in The News Forum.

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Special thanks to Sarah Adler, Immigration Legal Counsel.

Our webinar was designed to bring Canadian in-house counsel and human resources leaders up to speed on the top labour, employment and human rights law developments of 2022 and to prepare them for what’s on the horizon in 2023.  

Using our “quick hits” format, we helped Canadian in-house counsel and human resources leaders track what to keep top-of-mind for 2023 complete with practical takeaways to help navigate the new landscape.

Apply our Annual Canadian Employer Update Takeaways Checklist: Going into 2023 to help your organization’s leadership prepare for some of the most important employment law developments.

Among other topics, we covered:

  • COVID-19 case law updates on vaccinations, masking and workplace health and safety policies
  • Terminations, reductions in force and ways to reduce employer liability in a changing economy
  • Changes to public sector wage caps in Ontario
  • A selection of cross-Canada legislative changes including:
    • Working for Workers (again) in Ontario
    • Paid Sick Leave in BC
    • French Language and Privacy amendments in Quebec
  • Immigration – The solution to labour shortages in a post COVID-19 world?

Click here to view the webinar recording.