Marijuana, vacation pay claims and Bill 148 are just a
few of the pressing topics on the minds of the Human
Resources Professionals Association (HRPA)’s HR
Law Conference co-chairs, David A. Whitten and
James D. Heeney.
HR Professional sat down with the seasoned lawyers to get a
sneak peek of what they’ll be discussing and advising HR profes-sionals
about at this year’s conference.
VACATION PAY CLAIMS
David Whitten: We’ve seen a real emergence of vacation pay
claims as they relate to workers in the financial services, insurance,
banking and other industries who are heavily compensated with
bonuses or commissions. Some employers are contributing vaca-tion
pay based on a modest base salary, not the total earnings. As
a result, there are a lot of class action lawsuits brewing. Employers
have significant exposure and I advise them to get their heads out
of the sand. The days of glossing over these entitlements are long
gone. You can read more about vacation pay claims in this issue of
HR Professional on page 37.
One thing for HR professionals to note is that there’s normal-ly
a limitation period that limits damage claims going back two
years, but if there’s an ongoing violation, that limitation may not
apply. Practically this means that employers could be hit with va-cation
pay claims that go back far beyond two years, which is a
James Heeney: If you have this problem with one employee, you
probably have it with all your employees. It can really compound.
To ensure due diligence, one of our clients proactively looked at
a whole bunch of issues from the perspective of the Ministry of
Labour to try to help them identify problems. It’s not an expensive
process to do and it can help identify risk areas.
BILL 148, FAIR WORKPLACES,
BETTER JOBS ACT, 2017
Whitten: Bill 148 goes far beyond what is necessary in Ontario to
right some wrongs in the workplace and is a classic example of pol-iticking.
The Wynne government released this sweeping bill with
no regard to how it will impact employers. Some of the changes are
good, but the vast majority of them ignore the impact on small- to
medium-sized businesses, including increasing minimum wage.
I think we’ll see that employers, particularly in the service in-dustry,
may start to do things like staff at a bare-bones level to
compensate. People who do go in will be overwhelmed, causing
increased stress and injuries on the job. Bill 148 will encourage
employers to relocate manufacturing outside of Ontario. It really
could be the death knell of manufacturing in Ontario.
Heeney: Increased rights for employees are great but if you
don’t do it in a slow, measured way it can negatively impact the
very people you’re trying to help. Bill 148 may take jobs, particu-larly
in manufacturing. Is that better? I don’t know that it is.
Read the feature article about Bill 148 in this issue of HR
Professional on page 22.
EFFECTS OF MARIJUANA LEGALIZATION
IN THE WORKPLACE
Heeney: In one respect, this issue is a bit of a red herring because,
as an employee, you can’t be under the influence of a prescription
drug and perform your duties. It would be no different than hav-ing
rules for taking serious back medication and driving a forklift.
When it comes to safety-sensitive jobs, the rules won’t change.
It’s the desk jobs where there’s no safety issue that will be harder
to work out. If someone doesn’t have a safety-sensitive job, can that
person take marijuana and then go back to their job and work?
Will it have some influence on their ability to do their duties?
Whitten: In a workplace, you need a medical note confirming
that you need to smoke during the day and that note needs to in-clude
specific parameters. Just because you have a prescription for
medical marijuana doesn’t mean you get a free pass when it comes
to accountability and performance. This will unfold in the work-place
in curious ways.
Heeney: Yes, one of the largest issues employers and employees
have with disability management is the effort some doctors put
into prescription parameters compared to others. As the medical
marijuana issue continues to grow, an emphasis will be on employ-ers
to take steps to be sure there are detailed instructions and that
doctors have thought it through.
Whitten: Employers can exercise their right to ask questions. If
you get a doctor’s note that this person needs to smoke marijua-na,
that’s not enough. You’re entitled to delve deeper about how
frequently it’s administered, whether there are alternatives and if
it’s long-term. Be clinical when asking questions to tailor policies
Read the article about marijuana and the workplace on page 35.
HOW HR PROFESSIONALS CAN GET THE
MOST OUT OF THEIR RELATIONSHIP WITH
Whitten: Employers need to get a better understanding of why
lawyers recommend what we do. Sometimes a disconnect with em-ployers
happens when we suggest the two paths: one is expensive
litigation and one is to make it quietly go away with a confiden-tiality
agreement and payment. At this year’s conference, we’ll
share what we’re thinking when we advise you, what you should
be thinking about when taking advice and what information you
should provide to ensure we can come up with best strategy.
Heeney: The average human rights complaint award is between
$15,000 and $20,000. If you have a complaint asking for $35,000,
even if the facts don’t support it, you have to weigh how bad it
might be for the brand. Sometimes you have to give more than you
want to in the best interest of closure.
This year’s HRPA HR Law Conference is October 19, 2017 in
Toronto. For more information and to register, visit hrpa.ca and
search “HRPA HR Law Conference” or click here. n
HRPROFESSIONALNOW.CA ❚ OCTOBER 2017 ❚ 21