I Need To Talk To You About Mental Health - HRInsider.ca

OCTOBER 2013 VOLUME 9 | ISSUE 10

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I Need To Talk To You About Mental Health Data tells us that on average, 44% of the workforce will experience a mental health concern at some point. It is important to be cognizant of the possibility that a workplace performance issue may be the result of a mental health challenge. Before approaching an employee to talk about a performance issue, make sure you have all the information. This conversation with an employee is not easy. Follow these steps to make the process easier. Steps For Discussing Mental Health Concerns With An Employee 1) Gather and Assess Information: Ensure that you have an accurate picture of the situation. You need information, but you must be discreet. Spreading rumors will serve to make the situation worse. If behaviours raise alarms, and if they have lasted for a while, or are getting worse, you might need to have a conversation. Compile information as a first step. 2) Prepare Yourself: Familiarize yourself with the signs of mental health issues. Familiarize yourself with your organization’s relevant policies including confidentiality, safety and reporting procedures. Gather resources that you may need to provide your employee. If your organization offers an employee assistance plan (EAP), provide information on the plan and be prepared to talk about it.

IN THIS ISSUE FEATURE: I Need to Talk to You About Mental Health ELECTRONIC WORKPLACE: Tech Savy: The Generational Divide WORKPLACE SAFETY: Solely Providing Safety Training Isn’t Enough CASE OF THE MONTH: CLC Allows Termination Without Cause MONTH IN REVIEW: Latest Cases Laws & Announcements EMPLOYEE CONTRACT: Employee or Independent Contractor? HIRING: When Should You Add a New Position to Your Organization HR MANAGEMENT: Health & Wellness Infographic

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As part of your preparations, gather information on the employees strengths and not only the areas of concern. Prepare examples to illustrate your concerns, but do not bring a litany of examples. Identify 2-4 specific examples. Despite your preparations, the employee may not be interested in what you have to say. 3) Schedule A Meeting: Set aside time to talk as soon as you make the request for the meeting. Making someone wait for hours can be stressful. Meeting before lunch or at the end of the day might seem like a good idea, but generally it is

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not. When someone is hungry they are often less able to concentrate and more prone to hearing negativity. Select a time early in their shift or shortly after a meal break. Approach your employee in a way you normally would, in-person, over the phone, or through email, and indicate that you need to discuss work. Set aside 45-60 minutes, but tell your employee that the meeting will be brief so that he or she will not feel overwhelmed. If possible, try to meet them in a place you would normally meet employees. Routine and familiar surroundings may aid in putting your employee at ease. Try saying, “I would like to speak to you for a few minutes about work. Can you meet me in X location in 15 minutes?” 4) Begin the Conversation: Keep the focus on workplace performance. Speak for a few minutes first about the person’s strengths and value. Then mention your performance concerns. Do not mention any specific concerns about mental illness. Ask them a question or two to elicit information about how they are feeling. Provide your employee with an opportunity to express their thoughts or ask for help. Consider these questions: • How do you feel you have been contributing at work recently? • Tell me if you have been feeling out of step with colleagues/projects? • Do you feel that there resources or support systems that could help your performance in the workplace? * You are solving problems in this exchange. This exchange is providing your employee with the opportunity to be heard and providing you with the opportunity to learn. 5) Move the Conversation Forward:

Featured Tool Standard Audit: Is Your Workplace Psychologically Safe? Use this standard to audit your workplace. QUICK CODE: 1112 work and are concerned about their well-being. Pointers: • In your conversation, use words like “stress” or “health”, but not “mental illness”. • Ask if the employee if he or she would like assistance gathering information and resources. • Provide information about your company policy related to addressing performance issues and information on your company’s EAP program. • Mention the option of workplace accommodation if the employee’s situation requires accommodation. • Do not provide the employee with information on mental health unless they bring up the topic. 6) Meeting Wrap-Up: Ask the employee if he or she has any questions. If you are concerned about their ability to work, you may allow them to take the rest of the day off. Schedule another meeting in a few days to discuss next steps to address their workplace performance issues. Do not have a discussion about specific discipline at this point in time. You may have to take this process slowly at first. In most cases there is no reason an employee with a mental health concern cannot be accommodated in the workplace if you take the time to identify possible strategies and approach the person with openness and compassion. 

October 2013 | HRInsider.ca

You may need to move the conversation forward. Mention you believe they may be struggling at

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HOW TO USE QUICK CODES Quick Codes Make It Easy to Access All the Content in this Issue Online! How do you use them? It’s easy, just follow these 3 steps. 1. Go to HRInsider.ca and look for the Quick Code box 2. Type in the Quick Code (example: 1001) 3. Press the “Go” button Instantly you will be taken to the article, tool, or analysis. On the webpage you’ll also find related articles, helpful tools, and/or additional resources that have been expertly chosen by our editor to help simplify your job of building a compliant safety culture


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ELECTRONIC WORKPLACE

Tech Savy: The Generational Divide The Canadian labour market is made up of a few generations:

who worked in office environments with some form of technology.

• Digital immigrants, the baby boomers (born before 1965)

A digital native perceives tech savvy as among one of the biggest assets he or she brings to the workplace. Moreover, a digital native expects their workplace to recognize and fall-in-line with the logic that tech knowledge is an important component of the modern workplace.

• Generation ‘X’ (born roughly between 19661980) • and the digital natives, Gen ‘Y’s’ (millennials) The term, “digital native” was coined by Marc Prensky in 2001 to describe those born after the 1980’s. It is often supposed that digital natives are more tech comfortable compared to their older digital immigrant co-workers. The digital native generation is making significant changes to the Canadian workplace.

Featured Tool Model Policy: Computer Use Policy Use this policy to restrict social media and internet usage in the workplace. QUICK CODE: 1113 Digital Natives Know They are Tech Savvy and Believe it is Important In a 2013 survey, titled “Generational Research On Technology and Its Impact in the Workforce” 2/3rds of digital natives rated their technology skills as ‘cutting edge’ or ‘upper-tier’. For the digital immigrants, 53% of boomers rated their skills as ‘middle tier,’ and 79% of Gen X rated their skills as Upper or Middle tier. The survey (Conducted by CompTIA) included responses from 700 people

Digital Natives Want to Work For Tech Savvy Organizations How Significant is Employer Tech Savvy?

All

Gen Y

Gen X

Boomer

Significant

23%

31%

21%

18%

Somewhat Significant

23%

34%

40%

27%

Somewhat Yes/No

24%

23%

21%

27%

Not Much

9%

5%

9%

11%

Not at All

4%

3%

4%

4%

BYOD: Using Technology In The Workplace When asked if they use personal devices at work digital natives were more likely to BYOD (bring your own device). BYOD to Work Tendencies

20-29

30-39

40-49

50+

Significant

60%

58%

43%

31%

The most common devices were smart phones. • 75% of digital natives used their smartphones compared to 37% of boomers. Young workers also brought tablets, laptops and GPS devices. • Digital natives and some Gen X’ers were also more likely to use non-traditional business software and sought to interact with technology in their own way using technology of their own choosing. • Workers under the age of 40 were more likely to use online versions of word-processing applications such as Google Docs compared to older workers. The digital native workforce will change the landscape of the workplace just as the baby boomers did before them. Sheer numbers and their desire to bring their own devices, knowledge, technology and way of working into the workplace will give digital natives an edge. Older co-workers will need to consider this edge in the changing face of business. 

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WORKPLACE SAFETY

Solely Providing Safety Training Isn’t Enough If, one of your workers gets killed or seriously injured at work, government occupational health and safety (OHS) inspectors will inspect your workplace. And the first question they’ll ask you: What safety training did the victim receive? One of the biggest reasons employers get charged with OHS violations is because they don’t give inspectors the answer they’re looking for. Here’s what safety training requirements are really all about. WHAT THE LAWS SAY Although specifics vary to some degree, safety training requirements under OHS laws of each province, territory and the federal jurisdiction under the Canada Labour Code require employers to ensure that workers receive: • General health and safety training so they’re aware of and prepared to deal with hazards they face on the job; and • More detailed, technical training related to specific hazards they’re exposed to, e.g., working in confined spaces or with dangerous machines. WHAT THE LAWS MEAN A company that deliberately fails to train its workers deserves no sympathy. But even “good” employers that take the time and effort to train their workers get socked with OHS training violations because of mistakes they make during the actual training process.


Mistake 1: Not Documenting Safety Training

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It’s not enough to train your workers; you must also be able to prove you do. Failure to properly document safety training is the first big mistake employers make. This probably isn’t the first time somebody has urged you to document your training. But here’s a tale of two companies demonstrating why documentation is so important just in case you didn’t take the message to heart. Company A Doesn’t Document & Gets Fined: An OHS inspector smells sewer gases in a trench during a routine inspection. Nobody told us to check for poisonous gases before entering the trench, the workers tell the inspector. When the inspector tells the contractor, he’s apoplectic and insists that all the workers received extensive training about atmospheric safety in trenches; but he doesn’t have the documents to back up his claims. Result: He’s

hit with a hefty fine for failing to provide required training.

Featured Tool Model Quiz to Verify the Effectiveness of Safety Training One of the best ways to verify training’s effectiveness—and document your attempts—is to administer a quiz to employees after training is complete QUICK CODE: 1115 Company B Documents & Isn’t Charged: During an interview with an Ontario Ministry of Labour inspector, the victim of a serious machine accident claims she never received training on machine guarding and safety. But the employer has written records showing that training sessions were held and that the victim attended them. When she sees her signature on the attendance sheet, the victim suddenly “remembers” that she was trained after all. Result: No OHS charges are laid against the company. Solution: Create a Training Log One of the best ways to document safety training is by keeping a training log. Your logs can be paper, electronic or both, just as long as they capture the key information you need to prove training was delivered, including: • The name, department and signature of each worker who attended the training session; • The date and time of day the training took place and its duration; • The subject matter covered; • The name, title and department of the trainer; • The trainer’s credential—OHS laws typically require that safety training be delivered by a “competent person” with experience, knowledge and training in the hazard and the OHS requirements pertaining to it; • How frequently training is required; and • What steps were taken to verify that training was effective—this is critically important for reasons that will become clear in the next section of this story. Mistake 2: Not Verifying Effectiveness of Safety Training Although it’s an absolute must, documentation is

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just the first step. Remember that OHS inspector we told you about at the start of the story who asks you what safety training a worker who suffers an accident received? Pulling out your training records to prove the victim attended such-andsuch training on such-and-such date won’t be enough; to satisfy the inspector, you’ll also have to show that you took steps to ensure the victim understood the training provided. Bottom Line: Your duty is not to provide safety training but to provide effective safety training. Explanation: The OHS laws don’t actually say this. But as you know if you’re experienced in health and safety, in applying the law to actual situations, courts, OHS officials and prosecutors rely on a Supreme Court of Canada rule called due diligence. Under the due diligence rule, employers can commit OHS violations without being held liable if they can show they took reasonable steps to obey the law and ensure health and safety. Applying this rule to safety training, simply going through the motions, e.g., by handing out pamphlets that nobody can read or holding safety talks that nobody can understand, isn’t enough to prove due diligence. The “reasonable steps” an employer must take to comply with safety training requirements includes follow-up to ensure that the training delivered is working.

Featured Tool Model Safety Training Log Simply delivering safety training isn’t enough to comply with OHS laws. You also need to be able to prove that you actually delivered that training. QUICK CODE: 1116 Example: According to one Alberta court, “it is not enough for [an oil company accused of violations] to orally order workers to conform to certain safety procedures and send them pamphlets that reinforce that order. If that were so, the accused could fulfill its [training] obligations under the OHS Act by holding meetings and distributing pamphlets” [R. v. Ledcor, [2005] A.J. No. 766, June 27, 2005]. Solution: Do 4 Things to Ensure Trainees “Get It” You must make an active, ongoing effort to engage the effort after the training ends to verify that workers actually understand and apply their training lessons on the job. Some good techniques: Post-Training Quizzes: Have workers take a quiz after the training session to test their understanding of the key points. Workers who don’t score a certain

percentage should get additional training. Repeat the quiz a few weeks or months later to ensure that workers retain what they were taught. Participant Demonstrations: After you explain the right way to perform a job, have the worker demonstrate the method. In addition to smoking out disconnects in understanding that trainees may not admit to, demonstrations are a great teaching technique. Post-Training Evaluation: You should use at least one method of getting worker feedback on the training, e.g., interviews, questionnaires, focus groups and even informal chats. Post-Training Observation: To know if training is truly effective, you need to observe what the workers do when they get back to the jobsite. Caveat: Signed Acknowledgement Is Not Proof Some companies ask their workers to sign a form after training sessions acknowledging that they understood the lesson and will put it into practice. These forms don’t prove anything and you shouldn’t let them lull you into a false sense of security. “Most workers will just sign these things without even reading them, let alone making sure that they understood everything you told them,” according to a BC OHS lawyer. This is especially true if the training and instructions are complicated. 

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CASE OF THE MONTH

CLC Allows Termination Without Cause What Happened: A federally regulated employer, Atomic Energy of Canada Limited (AECL), dismissed a worker without cause, giving him six months’ severance pay. The worker alleged unjust dismissal. A labour adjudicator determined that the Canada Labour Code (CLC) only permitted dismissals for cause. The adjudicator reached that conclusion based on a prior federal court decision that had said employers couldn’t escape the unjust dismissal remedies under the CLC by providing a terminated worker with severance pay. The adjudicator reasoned that such ruling really meant an employer couldn’t terminate a worker without just cause because even terminations with severance pay must also be “just.” The employer, AECL, appealed. What the Court Decided: The Federal Court ruled that the CLC does permit terminations without cause but even when an employer characterizes termination as without cause, the worker can bring a claim that it was really an unjust termination.

Featured Tool definition of Constructive Dismissal


The phrase “constructive dismissal” describes situations where the employer has not directly fired the employee. QUICK CODE: 1118

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How the Court Justified the Decision: The federal court recognized decisions the adjudicator relied upon and did not overturn those decisions but rather clarified their meaning. The court explained that prior cases that required a finding of just cause to support a termination governed by the CLC do not mean that every termination governed by the CLC must be for just cause. Federally regulated employers can terminate employees without any cause, so long as they provide severance as required by the CLC. A contrary finding, the court explained, would render meaningless CLC provisions requiring notice and severance pay. To clarify the meaning of prior decisions that the adjudicator interpreted to require just cause, the federal court explained that those cases merely decided that an employer providing severance payments doesn’t prohibit a court from looking into whether a worker was unjustly dismissed. Thus, an employer can’t avoid paying compensation for unjust dismissal by giving the worker severance [Atomic Energy of Canada

Limited v. Wilson, [2013] FC 733 (CanLII), July 2, 2013]. ANALYSIS This decision clarifies some confusion or misinterpretation of prior decisions about terminations governed by the CLC. There is a difference between saying all terminations governed by the CLC must be for cause and saying that a court can consider whether a termination was unjust and award damages for unjust dismissal even if the employer has deemed the dismissal a termination without cause and paid the worker severance. This decision explains that the court doesn’t have to accept the employer’s label for the termination and can still look at whether the termination was just even if severance is paid. In other words, the CLC says employers can terminate a worker without cause but must pay the worker appropriate severance in such case. It also says, a worker can challenge any termination (with some exceptions noted in the CLC) as unjust and seek damages. Bottom Line: The good news is that the federal court clarified that termination without cause is permissible under the CLC. Prior decisions requiring just cause don’t mean that every termination must meet just cause criteria. However, you can’t disguise an unjust dismissal by calling it termination without cause and paying severance. The court can look behind the severance payment and the label and determine if the dismissal was truly just. 

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Month in Review

A roundup of new legislation, regulations, government announcements, court cases and arbitration rulings

LAWS & ANNOUNCEMENTS July: Labour Force Survey Unemployment rose .1 percentage points to 7.2% for July, due in part to loss of jobs for youths. However, employment increased by 1.3% between July 2012 and July 2013. Employment declined in health care and social assistance, public administration and culture and recreation but rose in business, building and other support services. August: CRA Forms New CRA Forms and publications in first week of August 2013: • RC4417 Taxpayer Bill of Rights - Poster • RC4028 GST/HST New Housing Rebate - Includes Forms GST190, GST191, GST191-WS and RC7190WS • T2SCH393 Manitoba Nutrient Management Tax Credit (2012 and later tax years) CASES No Insurable Employment Where Father and Son Were Not Dealing at Arm’s Length Father’s roofing company employed son to supervise a crew and paid him salary for such services. The son, who also had his own business, was also paid for “piece work” based on each job with the father’s company retaining a portion of the funds generated by a job and the remainder going to the son for piece work which was alternatively described in some records as truck and equipment rental. The records and testimony of the father and son were unclear as to the true nature of such payments. The Minister of National Revenue ruled there was no insurable employment because the father and son were not dealing with each other at arm’s length. The father and son appealed but the Tax Court of Canada held the Minister’s finding reasonable: “No person would have agreed to a similar arrangement without determining in advance his share of the surplus on each job completed or by leaving to the payer, sole discretion as to how the share is to be divided unless that person is related to the payer.” [Michaud v. M.N.R., [2013] TCC 245 (CanLII), Aug. 1, 2013].

BRITISH COLUMBIA LAWS & ANNOUNCEMENTS Aug. 9: Labour Market Employment declined slightly in BC with the most losses in trades (-15,300 jobs), public administration (-5,700 jobs) and education services (-4,900 job). The province’s 6.7% unemployment rate remains below the national average of 7.2% however.

July 29: Workers’ Comp Premiums Average base premium rates are expected to rise slightly in 2014 for BC employers. While consultations concerning rates continue, rates are estimated to rise less than .1% of total payroll costs due to increased claim costs and lower investment returns. CASES Contractual Severance Provision Triggered by Closure of Business A BC court ruled a Director of Certification was terminated by the British Columbia College of Teachers at the time the college announced it would be dissolved and replaced by a new government agency, rather than the date of the Director met with an administrator and rejected an offered position with the new agency. Additionally, a contractual provision requiring 24 months’ salary and cost of benefits was enforceable. Finally, because the contract didn’t require mitigation, the Director wasn’t required to mitigate damages [Maxwell v. British Columbia, [2013] BCSC 1386 (CanLII), Aug. 1, 2013].

ALBERTA LAWS & ANNOUNCEMENTS Aug. 12: Disaster Recovery Center More updates on recovery assistance for victims of the flooding: • A new disaster recovery center in High River will provide continuing assistance to victims with applications for disaster recovery funds. For more information and hours of operation for the center, check the Alberta Government website. • The Small Business Rebuilding Program adds a new resource for small businesses with 21-50 full time workers. Eligibility requirements for funding are based on requirements similar to those for the Disaster Recovery Program which aids businesses with up to 20 workers. CASES Acts Related to Workplace Dispute between Union Factions Not Prima Facie Harassment A union administrative employee claimed harassment based on gender. The union represented miners at two separate mining locations. One mine was due to be closed with many miners from that mine to be transferred to the other mine location. Issues regarding seniority with regard to those transfers became a source of friction within the union. The complainant alleged harassment due to conduct of the president and vice president of the unit of the union related to the closing mine. She alleged they discussed her compensation in public (claiming it was too high), made a comment about women belonging

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FEDERAL

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Month in Review in the kitchen not in a mine, and she suspected they were tampering with her personal items at work including her chair, food stored in the fridge and her toothbrush in the washroom. The tribunal declared the individual’s conduct “stupid, thoughtless and juvenile” and “inexcusable” harassment, but said it wasn’t related to gender. Instead, such acts were “petty acts in furtherance of a workplace dispute between rival factions in the Union” and “fuelled by personal animosity and intra-union rivalry, and not gender.” [McMillan v. United Steelworkers, ASM #1595, [2013] AHRC 8, Aug. 1, 2013].

SASKATCHEWAN LAWS & ANNOUNCEMENTS Aug. 9: Employment Statistics Canada reported SK employment rose 4.0 per cent between July 2012 and July 2013, more than any other province. While unemployment increased 0.3 percentage points from the prior month, which is still the lowest unemployment rate of any province and below the national 7.2 per cent unemployment rate. Industries with the biggest employment increases were trade (up 4,700), and agriculture, scientific and technical positions and health care (each up 3,200).


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LAWS & ANNOUNCEMENTS July 31: Employment Good news for Ontario workers: the employment environment continues to strengthen. Highlights: • In September, a new Youth Employment Fund begins funding efforts to help young workers get jobs by funding up to $6,800 of employer costs for wages and training of young workers and up to $1,000 of young workers’ costs for tools and transportation. • Three more years of funding for Toronto Financial Services Alliance will promote Ontario’s status as a top financial services centre and help create jobs and grow the economy. • Northern Highways Program investments in roads, highways and bridges will create over 5,000 jobs. CASES Waitress Awarded Damages for Injury to Dignity after Refusing to Wear Tight Shirt A pregnant waitress objected to a bar’s new dress code which required waitresses wear a form-fitting shirt. After her objection, she was no longer scheduled for any shifts when she had been regularly scheduled for several shifts a week. After continually requesting she be scheduled and seeking an explanation for why she was no longer being scheduled, the bar provided a response indicating there had been a

misunderstanding and that the employer didn’t have current contact information for her. She was thereafter scheduled for only two breakfast shifts and then later received an ROE regarding termination. She filed a human rights complaint alleging discrimination based on her pregnancy. The human rights tribunal found that the employer acted in response to the dress code objection and pregnancy because immediately after her objection the waitress received no further shifts and no credible reason was provided by the employer. Therefore, the tribunal awarded damages for lost income for discrimination on the basis of sex and additional damages in the amount of $17,000 for injury to her dignity because the employer engaged in “deliberate incidents of discrimination” [McKenna v. Local Heroes Stittsville, [2013] HRTO 1117 (CanLII), June 25, 2013]. Discharge Improper But Addict Not Ready for Return to Work A worker at a waste transfer station held a safety sensitive position dealing with hazardous and nonhazardous materials. He suffered from addiction and was excessively absent from work, did not complete his treatment program and failed to return to work on his expected return date, without a valid excuse. The employer discharged him claiming undue hardship and the worker grieved his discharge. The arbitrator ruled the employer had not accommodated to the point of undue hardship because there were several measures available that it could have taken short of termination (such as insisting he complete a residential treatment program, offering a last chance agreement or conditional reinstatement or requesting a back to work protocol). The arbitrator also found, however, that the worker was not yet fit to return to his safety sensitive position and so reinstated the employment status with seniority but without compensation, imposing multiple conditions that would remain in force for 18 months after the worker was fit to return to work [Clean Harbors Canada, Inc. v Teamsters Local Union No 419, [2013] CanLII 48435 (ON LA), July 26, 2013] Worker Transporting Materials To/From Construction Site Entitled to Severance Pay Arguing that construction workers are exempt from the entitlement to termination or severance pay, a trucking company terminated its worker who delivered and removed materials from construction sites and refused to provide termination or severance. The Employment Standards Officer issued an order to pay which the employer appealed. The labour relations board ruled the worker was not a construction worker: “Extending the exemption from paying termination or severance pay to employees who only deliver or remove materials from construction sites would unduly

For more of these Jurisdictions’ Laws & Announcements and Cases, please visit www.hrinsider.ca

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Month in Review QUÉBEC LAWS & ANNOUNCEMENTS Aug. 8: Lac-Mégantic Cleanup Initial stages of a multi-stage government intervention plan were announced: • Appointment of firm to coordinate cleanup of the site • Efforts to secure the site and the safety of the workers recovering crude oil • Evaluation of the contamination (nature and extent) which will take until February 2014 • Consideration of options to restore rail traffic Aug. 5: Construction CSST offers a reminder that 42% of construction incidents in 2012 happened in August through November. To prevent such incidents, CSST also provides resources for employers at www. dangerconstruction.ca. July 30: IRSST Releases Report on Costs of Workplace Injuries A new report from the IRSST tries to identify, define and classify the costs of occupational injuries and catalogue the various economic approaches used to estimate the related costs. It groups the costs of occupational injuries into three categories: • Direct costs, which are associated with the treatment and “repair” of the injury, such as medical costs. Direct cost data is usually easy to get and doesn’t require the use of special estimation methods. • Indirect costs are related to the lost opportunities for the injured worker, employer, co-workers and community, such as salary costs, administrative costs and productivity losses. Compared to direct costs, indirect costs are usually more difficult to measure and are rarely insured. • Human costs relate to the value of the change in the quality of life of the worker and the people around him. Aug: Tax Forms New form from Revenu Québec: • LE-39.0.2-V Calculation of the Employer Contribution to the Financing of the Commission des Normes du Travail

NEW BRUNSWICK LAWS & ANNOUNCEMENTS Aug. 6: Workers’ Comp Review

A three-year review of the workers’ comp laws is underway. The first phase of review involves a discussion paper and consultations addressing the Workers’ Compensation Act and the Workplace Health, Safety and Compensation Commission Act. Issues under consideration: • Calculation of benefits • Whether a dispute resolution mechanism should be added • Appeals tribunal governance structure • Modernization of the Act’s language Public comments are solicited.

NOVA SCOTIA LAWS & ANNOUNCEMENTS July 29: Worker Safety A new discussion paper proposes fines for employers and employees violating safety laws and a simpler appeal process, based on feedback from consultations held earlier this year. Highlights: • Education efforts to promote compliance • Orders to correct compliance deficiencies within specific time frame without financial penalty • Predictable penalties for repeat violators or high risk violations • Simple appeals process for orders and penalties • Changes to the OHS Act to implement these proposals

YUKON TERRITORY LAWS & ANNOUNCEMENTS July 31: Employment Standards The amendment to the Employment Standards Act providing leave for parents of critically ill children came into force today. The amendment allows Yukon parents to take advantage of federal benefits providing up to 35 weeks of financial benefits to parents absent from work to care for a critically ill child. In May, similar provisions providing leave for parents of missing or murdered children took effect. Highlights of the latest amendment: • Parents having 12 months continuous employment may take up to 37 weeks to care for critically ill child • Employee must give two weeks’ notice of the leave unless circumstances require less notice • A medical certificate is required stating the child is critically ill and needs parental support

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extend the exemption” and therefore the employer owed termination pay [O J D Trucking Ltd. v. Todd, [2013] CanLII 49028 (ON LRB), July 26, 2013].

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EMPLOYMENT CONTRACT

Employee or Independent Contractor? No one factor determines whether an individual is an employee or an individual contractor. Revenue Canada and the courts look to the facts in each situation when assessing. But here’s a Chart/ Checklist of characteristics that you can use when trying to determine whether somebody who works for you is an employee or independent contractor:


Employee

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Independent Contractor

Follows instructions on how to work

Works without detailed instructions on procedure

Trained on how job should be done

Uses his/her own experience and expertise on the job

Works within campus environment

Works alone

Hired to work as an individual, based on skills, talent, and potential

Hired to provide service many times, regardless of who actually does work

Has indefinite employment status

Hired for a set time period only

Works under set hours

Sets own hours

Works for one employer at a time

Can work for several employers at a time

Works mainly on-site; employerdirected off-site

Can work either on-site or off-site, without employer direction

Works in employer-established order to allow for supervision

Works any way desired to provide required service or product

Reports on work efforts as part of supervision

Reports only as agreed upon

Compensated regularly, at specified time periods

Paid on per-job basis in a lump sum

Has work-related expenses paid by employer

Pays own expenses out of expected compensation

Has tools and supplies provided by employer

Provides own tools and supplies

Does not own or control work site

May own or control work site

Generally does not work on profit / loss basis

Generally works on profit / loss basis

Gives employer exclusive effort

Works for many contractors at once

Cannot offer efforts to general public

Markets services to anyone who wants them

Can be fired at employer’s discretion (subject to employment agreement)

Can be fired only if work falls short of expectations

Can end employment at any time

Responsible for completing job as agreed upon

Featured Tool Can the Same Worker Be an Employee and an Independent Contractor? A spa hires two massage therapists who agree to split the fee for each massage with the spa 50-50. The spa treats the therapists as self-employed “independent contractors.” So it doesn’t hold back any employee deductions when it pays them their share of the massage fees or pay the employer’s portion of the workers’ comp premiums on their behalf. The spa asks the Canada Revenue Agency (CRA) if it has properly classified the therapists. CRA says yes. But the workers’ comp board tells the spa to treat the therapists as “employees.” Question: How should the spa classify the therapists? 1. As independent contractors for tax purposes and as employees for workers’ comp purposes. 2. As independent contractors for all purposes. 3. As employees for all purposes. 4. As whichever classification the spa and the therapists agree is best for both of them. The Correct Answer Is: Under the tax laws, the therapists are independent contractors, but under workers’ comp laws, they’re employees. Explanation The spa said it was prepared to treat the therapists as either independent contractors or employees, but treating them differently for different purposes was burdensome. Although the court sympathized, it ruled that CRA’s classification of the therapists as independent contractors for tax purposes didn’t bar the WHSCC from classifying them as employees for workers’ comp purposes. Why Wrong Answers Are Wrong 2 is wrong because the workers’ comp laws require the spa to treat the therapists as employees. So if it doesn’t treat them as employees and pay its portion of their workers’ comp premiums, it’ll be guilty of a workers’ comp violation. 3 is wrong because it’s the mirror image of answer B. If the spa treats the massage therapists as employees after the CRA specifically told it not to do so it will be in compliance with the workers’ comp laws but not the tax laws. And if it holds back employee tax deductions, the therapists are likely to protest because such deductions aren’t legally required. 4 is wrong because the preference of employers and workers isn’t controlling for purposes of determining a worker’s employment classification. It’s simply not an option for the spa and therapists to disregard either the CRA’s or WHSCC’s classification simply because that’s what they want. Show Your Lawyer

R v. Patrick Street Holdings, [2006] N.J. No. 133, May 11, 2006

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When Should You Add a New Position to Your Organization The option to bring in a temporary, contingent, short-term, or freelance worker is one many organizations are considering in the uncertain days following the great recession. Many organizations are also deciding to make ‘do’ with their current employees, asking them to work harder and do more. However both of these options can come with a cost. Employee morale and engagement are not what they used to be. When Canadians are surveyed they generally report they are ‘satisfied’ with their current jobs but they also overwhelming say they would like to change jobs. Reasons often cited include job insecurity, stagnant careers and being overworked and unappreciated. As an organization, it can be difficult to determine when the time is right to create a new position. Hiring presents a myriad of challenges that make working with a temp agency seem like an attractive option. Hiring presents the following financial challenges: the cost involved in a candidate search (one that includes financial cost, resources and time), and also the cost associated with training and possibly managing fallout if the wrong person is hired. Before you make the decision to create a new position, there are a few questions you should try to answer. 4 Questions to Answer Before Deciding To Create A New Position 1) Does your organization really need more staff or a re-distribution of resources? Take the time to investigate if everyone is working to full capacity. Consider if people are becoming increasingly overwhelmed or stressed. Look at the amount of sick, vacation or overtime being used. Ask managers if they want additional staff, and if so, ask for how long. If they tell you they need someone for a few weeks until they get caught up you may not need a new position. However if there are tasks they cannot be completed because employees lack the time or the right skills then it may be time to consider creating a new position. But, before you do look around and see if all teams are at full capacity. Moving staff or moving work to a new team a better solution over creating a new position. 2) Is the current financial state of your business changing? Consider how much money a new position will cost and how much money the new position might save. If a new position increases efficiency or generates income it might be worth it. Look at projections for 12 – 24 months, anything less will not help you differentiate between a temporary hire and bringing in a new position. Look at your projects for sales and new business. If you

are worried your current team cannot manage a workload increase, building a bigger team is likely a worthwhile investment. 3) Could a temporary hire or external partner get the job done with less expense? Ask yourself if the increase in workload is seasonal or temporary due to a new project or the temporary loss of an existing employee. Really consider if your organization can support or needs a new position to solve a temporary problem. Consider a time frame of up to 12 months as a temporary need. 4) Is there a problem that needs to be addressed with existing staffing or positions? Is the need driven by inefficiencies or problems with existing employees or positions?If your team is not producing at the level they should be, or if the team requests additional help, investigate the root of the problem. Poor leadership, poor time and personnel management or lack of appropriate skills might be the culprit over lack of resources. You May Be Ready To Create a New Position When: • Improvements in the economy or your business are putting pressure on you to grow to meet new demands. • You have observed an ongoing increase in workload and employees who are struggling more on a consistent and continual basis. • You find you are regularly bringing in contract, freelance or temporary help, not just seasonally but all of the time. The cost for a new position may be less than the cost of hiring temps on a regular basis. • You are missing skills, resources or knowledge to innovate, change direction, solve problems and stay ahead. Timing is Important Can you wait until the next quarter or do you need to start now? Before a new position is absolutely required, can you hire a contract or part-time worker? Do not hire a temporary or part-time employee just to save short-term money if you do need a new position. You may not be able to move part-time employees to full-time and when that happens you may find yourself incurring additional costs of hiring and training again. Finally, if you create a new position, look inside and see if there are existing employees who can be trained and moved into a new position before you search externally. You may be able to move an employee and eliminate another position. Sometimes if you look at people or positions from a new or different perspective, you find you already have what you are looking for, you just need to see the possibilities from a different angle.

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HR MANAGEMENT

Health & Wellness Infographic OF EMPLOYEES THINK EMPLOYERS DON’T CARE ABOUT THEIR WELLBEING

OF EMPLOYEES ACTUALLY FEEL FULLY ENGAGED AT WORK

OF WORKERS SAY THEY ARE DISENGAGED AT WORK

POOR ENGAGEMENT HURTS THE BOTTOM LINE

7 OUT OF 10 EMPLOYEES SAY HEALTH AND WELLNESS PROGRAMS POSITIVELY IMPACT THEIR WORK ENVIRONMENT & PRODUCTIVITY

THE ESTIMATED COST OF LOSING AN EMPLOYEE IS 1.65X THEIR ANNUAL SALARY

OF EMPLOYEES SAY THAT HEALTH & WELLNESS PROGRAMS ARE KEY WHEN CHOOSING EMPLOYERS

87%

WHAT DO COMPANIES WITH HEALTH & WELNESS PLANS RECORD AFTER 1 YEAR OF IMPLEMENTATION 43% MORE PRODUCTIVE

33% HIGHER PROFITABILITY

125% LESS BURNOUT

37% HIGHER SALES

66% DECREASE IN SICK LEAVE

300% MORE INNOVATION


HEALTHIER EMPLOYEES

12

HIGHER ENGAGEMENT

BETTER BUSINESS

HEALTH & WELLNESS PROGRAMS OFFERED

WHAT ARE COMPANIES OFFERING Source: VirginHealthMiles.com

50% LESS SAFETY INCIDENTS 51% LOWER TURNOVER

BIGGER PROFITS

% COMPANIES OFFERED

% EMPLOYEE WANTS

PHYSICAL ACTIVITY PROGRAMS

57.6

78.1

SMOKING CESSATION

50.3

12.7

WEIGHT MANAGEMENT

48.6

55.9

47

70.6

GYM MEMBERSHIPS

42.6

69.1

MENTAL HEALTH

38.2

35.6

STRESS MANAGEMENT

36.2

55

FINANCIAL WELLNESS

35

na

HEALTH RISK ASSESSMENTS