Effective November 20, 2015, changes to the Ontario Employment Standards Act came into effect that could significantly impact companies using Temporary Help Agencies to staff positions.
If the Temp Agency you use does not pay the employees their regular wages, overtime wages, public holiday or special wages then your business (you personally, if you’re not incorporated) can be required to pay those monies to the employee.
Yes, this means that even if you already paid the temp agency, you’ll be paying the employee “again”.
The public policy behind this is to protect vulnerable workers. Clearly “vulnerable” employers are not a consideration.
In order to protect your business from this liability, ensure that you do some due diligence into the Temp Agency you’re using. Ensure they actually pay staff on time. Investigate how long they have been in business. Ask questions to protect your business from unintentionally paying twice for temporary employees.
I recently had a meeting with a client who retained us to draft a Shareholder’s Agreement for her and the co-owner of her business. This type of an agreement lets the shareholder of a company control what happens in the event of certain things such as change in ownership, death of a shareholder or the divorce of a shareholder.
Some of the items she easily had an opinion on, however, some items she said “let’s leave those out and we’ll deal with them later.” I encouraged her not to do that, rather than to tackle the hard issues head on and while that advice was with respect to her particular situation, the advice that follows applies to all business issues, not just legal ones.
It is better to plan for something than to respond to it happening.
From a legal point of view, it costs far less to draft a legal agreement that sets out what will happen if an event takes place as opposed to litigating the issue when it happens and there is no agreement in place. This applies to employment agreements, contracts with customers and suppliers. Litigation dollars are easily ten times the amount of dollars spent on drafting documents: use your legal fees wisely, plan ahead.
From a general business point of view, facing the possibility of an unpleasant event head on, let’s you plan how to deal with it before you are in “crisis mode” and struggling to deal with shock as well as coming up with a plan.
Plan your response before you need it. We can help with that.
Remember years ago when Martha Stewart had an “Apprentice” TV Show and she told one of the female contestants, there are no tears in Business? That was likely some of the best advice she gave during the show.
Tears are borne from emotion and the emotion in a Business should come after hours, not during.
As a Business Lawyer one of the most challenging types of business I deal with it “the family business”. Businesses which involve multi-generational family relationships can be the most difficult businesses to find solutions to what would otherwise be simple problems.
The best advice anyone can offer a family Business is to use lawyers to negotiate difficult issues. Cool heads, steeped in legal knowledge are the right people to resolve conflicts.
Lately, litigation involving Constructive Trusts in Family Businesses has seen an increase in acceptance by Canadian Judges. Older generations who live off the work of their children and grand-children cannot cut those children out of the business without compensation.
Litigation is the last place a family Business should end up in, however, at times, that is the only way to ensure everyone is dealt with fairly.
If you need help navigating these waters, without tears, please reach out to me.
This week is Administrative Professional’s week. I’d like to think every week is that week in our firm, though to be fair, we don’t all enjoy a lunch out together every week.
When I was an Articling Student, I was initially terrible at working with Administrative Professionals. I had that arrogance that many young lawyers have (masking the insecurity of not knowing what we’re doing) and behaved accordingly. Thankfully, one Legal Assistant took me aside and told me if I continued to treat people that way, I’d run through Admin staff like toilet paper and my career would be hurt by it.
I really appreciate that chat and now, 22 years later, know that I turned it around due to that chat.
What I know now is that I work with people, they do not work for me.
What I know now is that no one role is more important than another in the firm – we do well when we pull together.
As a result of turning it around I have a great staff who have been with me a long time and I very much appreciate everything they do !
If you have an Admin Professional in your life, make sure you tell them how much you appreciate them this week – it does matter !
This morning I went to Starbucks and paid partly on my Starbucks card and partly with a $ 20.00 bill. After I paid on the Starbucks card the balance was $ 2.86. The Barrista could not figure out the change.
Thankfully I was able to draw on my training as a bakery clerk at Casey’s Bakery 33 years ago and “counted up” the change to the $ 20.00. You know, 15 cents is three, add 2 is five dollars, add 15 is $ 20.00. As I type this I realize I should not have started that sentence with “you know” because clearly, this Barrista did not know.
The point of this Blog/rant is not to sound like I’m 100 and want kids to get off my lawn, the point is to talk about building blocks for jobs/professions. I’m going to suggest Barristas should know how to make change before they are hired and that is a building block for their job.
As a lawyer who works with many employers, I am always happy to help clients created a plan that helps their employees develop the skills they need to advance in their company. Many small employers are seeing the value of paying for continuing job training and having employees shadow those in management periodically to get a sense of what management does and how their jobs fit into the building blocks of the entire company.
My concern as a lawyer is to ensure the employer’s good deeds do not get “punished” if the employee leaves the company. An employee handbook that clearly spells out what is paid for and what is not, is very important in determining if something was an obligation or a “gift”. Depending on the value of the education, if this is not set out clearly, the employer could be on the hook for a lot of money if the employee is terminated. That will often leave a sour taste in an employer’s mouth and the remaining workforce ends up suffering.
Don’t be that employer. Document your policies. Review your employees regularly and follow your policies. Your business will run more smoothly if you have a handbook.
Also, Starbucks, perhaps a calculator on the counter could help counting-challenged Barristas?
I was at a trade show recently, not a boring legal trade show, but the Outdoor Adventure show (hey, I have a life that extends beyond Court Rooms – honest!) and I was overwhelmed by the way many vendors were blurting out information as we walked past their booths. Many of those people spoke so quickly, I had no idea what they were marketing and apparently neither did they. One vendor told us how her product was great for “exhibitionists”: she meant exhibitors. She was mortified when she realized she had been saying “exhibitionists” all weekend.
Fast forward to the Monday after that weekend and I had a great meeting with some entrepreneurs excited about starting a new venture together. I took the time to listen to their thoughts, then slowly explained what legal help we could provide that would suit their needs.
I didn’t go on in detail about the facts from latest Court decision that would impact their situation, I didn’t recite a law from memory and I didn’t use a lot of legal language. I listened and then, in plain English, gave them my advice.
Many lawyers are like the vendor selling to exhibitionists. They speak quickly and are not even aware of what they’re saying. They don’t connect with their clients as business people, they preach down as if law is a pulpit and the client is listening in a church pew (and has to put a lot in the offering plate).
Business law is a conversation between a lawyer and their client. Lawyers need to listen up and be in tune with their client’s business.
If you’d like to talk, I’m listening. (with apologies to Frasier Crane)
It’s July 1, let’s celebrate 147 years of our Country by bringing the commercial use of email to a screeching halt.
I’m not going to repeat what you need to do to comply with the Canadian Anti-Spam Legislation here. Scroll down our Blog and read the CASL Blog for that information.
What I will tell you is that I think this legislation is overkill.
I think this legislation is too expensive for Small Business to comply with.
I think that making Officer & Directors personally liable for email violations is wrong.
If you agree, please write your MP and let them know.
In the mean time, it’s July 1, 2014. Save those unsolicited emails you receive, they are worth $ 200/email come July 1, 2017.
The Alberta Human Rights Tribunal recently ruled in favour of a foreign trained Engineer who claimed he was being discriminated against as he had failed the proficiency exam for Engineers in that province three times.
The Alberta Human Rights Commission ordered the Engineering body to assign the applicant a mentor, conduct a review of his credentials to see if the Engineer can be exempted from certain requirements and to pay him $ 10 000.00 for the discrimination.
Meanwhile in Ontario, there is a “commission” of a different kind currently deliberating: this is the Elliot Lake Inquiry.
The Elliot Lake Inquiry is investigating the collapse of a shopping mall that killed two people and economically devastated a small community. After the Inquiry concluded taking evidence a Licensed Engineer, who had declared the Mall safe shortly before its’ collapse, was charged with two counts of criminal negligence causing death and one count of negligence causing bodily harm.
This Engineer had had his own encounter with a hearing before he made a final inspection of the Elliot Lake Mall. The Engineering governing body had stripped the Engineer of his credentials and ordered him to pass a technical exam or lose his certification for good. He never wrote the exam. Somehow, he was still hired to inspect the Elliot Lake Mall: it would appear he missed something.
Requirements for many jobs are there to ensure public safety: medicine, engineering and dare I suggest, law, all have requirements to ensure that people who hire those professionals are getting a guaranteed quality of knowledge and service. Watering down that standard is unacceptable: a standard is something everyone has to meet regardless of age, gender, race, sexual orientation or creed (these are not all the prohibited areas of discrimination, but they are most).
It is not discrimination to require an Engineer to prove s/he is able to do their job at the level expected in Canada: it is public protection.
Oh the excitement in the media recently: the Canadian Government spied on the activities of Passengers at (presumably) Pearson Airport who logged onto the free Wi-Fi.
Shocked? You shouldn’t be.
My first thoughts in reading the story were “who has an expectation of privacy on a free Wi-Fi”? Every time you log onto Wi-Fi, you are using a router, the router can capture all the data you are running through it. You might want to consider that the next time you pull into a Tims to check your email.
I then realized, in listening to the public reaction, that many people do not understand how the internet works and, applying this to Business, they have no clue about ownership of emails and other internet activity that originates at work.
With respect to corporate emails. The employer owns the email address. The employer can review all sent/received items at any time. Think of a corporate email address the same way you do corporate letterhead: anything sent from it is on behalf of the company.
Moving onto internet privacy at work: all businesses should have an Internet Use Policy in their Employee Handbook. This will set out what you allow your employees to use the internet for at work as well as what is forbidden. It is a good idea to remind everyone in the policy that as the Employer, you can review work computer screens at any time and as such, passwords and other personal data could inadvertently be captured by the employer.
Everyone should always “think before you surf” – where are you, how are you sending data and how private does this need to be? If you think before you surf, your expectation of privacy will be realistic (i.e. there is none) and you will be making an informed surfing decision.
Have you heard the ads on the AM radio stations lately? You know the ones that say “If you have been fired, don’t sign anything without calling XYZ law firm: we don’t get paid if you don’t get paid.” If you have not, you can bet your staff has, and this is part of what is driving up the increase in wrongful dismissal claims against employers in Ontario.
The law suit awards to employees are often in the one month/year of service range (much greater than the one week/year to a maximum of 8 weeks under the Employment Standards Act) – no wonder there is so much competition to represent the recently terminated.
As a law firm that only represents Employers, our job is to protect you from finding yourself having to pay a lot of money in lieu of notice. The way to do this is at the start of the Employment relationship, by having both parties sign and Employment Contract. This contract ensures that the employee knows exactly what could happen on termination and it provides the employer with certainty as to the cost of terminating an employee.
Drafting an Employment Contract must involve a lawyer as the law is constantly changing and you cannot contract out of certain requirements or the entire agreement is non-binding.
Before you make that next hire, give our firm a call, we’ll ensure you are well protected.
Inga B. Andriessen JD
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