Discrimination & Retaliation

In the wake of the #MeToo movement, a number of states (and New York City) now mandate workplace sexual harassment prevention training.

The chart below is intended to help multi-state employers keep track of their obligations across the country.

Continue Reading Quick Guide To Harassment Prevention Training Requirements Across The US

The recent attention to the gender pay gap has exposed the extent to which women are underrepresented in senior and highly paid roles, but there is similar cause for concern in many parts of the globe in relation to underrepresentation of certain ethnic groups. While this issue is more complex in many regards, there is a clear business case for action.

Click here to read the article which discusses the complexity of the ethnicity pay gap and spotlights two jurisdictions: South Africa and the United Kingdom.

Many thanks to Johan BotesMonica Kurnatowska and Gemma Taylor for this article.

If you have employee headcount in Canada, be sure to catch up on the top 10 developments from 2018 . . . 

  1. Legalization of recreational marijuana. Across Canada, the legalization of recreational cannabis has had a significant impact on employers, requiring them to implement changes to their workplace policies and procedures. The legalization of recreational marijuana has placed a spotlight on issues resulting from current technological limitations of testing for “current impairment”, and has required employers to adapt to the idea of a controlled substance that is legal for both recreational and medicinal use.
  2. Ontario introduces, and largely reverses, major workplace legislation reforms. Ontario’s Bill 148, the Fair Workplaces, Better Jobs Act, 2017,introduced a wide range of changes to workplace legislation, including increases to minimum wage, paid vacation, and protected leave time, as well as new “equal pay for equal work” requirements. A majority of these changes came into force in 2018. However, on November 21, 2018, the new provincial government reversed most of these changes under Bill 47, the Making Ontario Open For Business Act, 2018.
  3. Alberta implements major reforms to workplace legislation. The Alberta legislature passed comprehensive amendments to its workplace legislation, most of which took effect on January 1, 2018. These changes were enacted through Bill 17, the Fair and Family-friendly Workplaces Act; and Bill 30, An Act to Protect the Health and Well-being of Working Albertans, including enhanced leave and vacation entitlements, the implementation of a new administrative penalty system under the Employment Standards Code, the expansion of “card-based certification” for new unions, and other changes to legislation regarding occupational health and safety and workers’ compensation.
  4. Major changes to Quebec’s workplace legislation. In 2018, the National Assembly of Quebec made significant changes to the province’s workplace legislation under Bill 176, An Act to amend the Act respecting labour standards and other legislative provisions mainly to facilitate family–work balance. Changes include expanded leave entitlements, the inclusion of “sexual harassment” as a form of psychological harassment, the prohibition of any distinction based solely on hiring date in relation to pension plans or other employment benefits, and changes to directors and officers liability.
  5. British Columbia initiates workplace legislation reform. In June of 2018, BC’s Employment Standards Act Reform Project Committee issued recommendations for amendments to British Columbia’s Employment Standards Act, including enacting the right to refuse overtime in circumstances where overtime would conflict with certain family commitments, changes to overtime averaging requirements, and enhanced leave entitlements. On October 25, 2018, the BC government released the report of the Labour Relations Code Review Panel, recommending several amendments to the Labour Relations Code, including shortening the time between the filing of an application for certification and the certification vote, expanding remedial certifications, and expanding the statutory freeze period. It is very likely that these recommendations will give rise to substantial changes to BC’s workplace legislation in 2019.
  6. Ontario’s Pay Transparency Act, passed and put on hold. On May 7, 2018, Ontario’s former provincial government enacted Bill 3, An Act respecting transparency of pay in employment. The Pay Transparency Act was set to take effect on January 1, 2019, requiring Ontario employers to publish a salary rate or range in all publicly advertised job postings, prohibiting employers from asking candidates about their past compensation, and eventually requiring employers to post pay transparency reports online. However, Ontario’s new provincial government passed legislation on December 6, 2018, effectively placing the Pay Transparency Act on hold. It is likely that the Pay Transparency Act will be significantly amended or repealed by the new Ontario government in 2019.
  7. Ontario’s Police Record Checks Reform Act. As of November 1, 2018, Ontario legislation established three standard types of police records checks in Ontario, and set a procedural framework for executing the checks. This legislation is helpful in reducing the likelihood that unnecessary information will be disclosed to employers during the police record check process, and will reduce the confusion that has resulted from having different police record check processes administered in different regions across Ontario.
  8. Asset purchasers free to offer employment on new terms. On August 2, the Supreme Court of Canada refused leave to appeal the decision in Krishnamoorthy v Olympus Canada Inc, 2017 ONCA 873. In that case, the Ontario Court of Appeal ruled that, when a business’ assets are sold (as opposed to its shares), and the purchaser offers new employment to that business’s employees under different terms and conditions, the resulting employment contracts are generally enforceable, assuming they comply with employment standards legislation. In other words, new offers of employment in the context of an asset sale are fundamentally distinct from new offers of employment in the context of a share purchase, where the enforceability of amendments are often unenforceable for lack of “fresh consideration”.
  9. Two Ontario Court of Appeal cases give rise to further uncertainty regarding the enforceability of termination clauses. In Amberber v. IBM Canada Ltd., 2018 ONCA 571 and Nemeth v. Hatch Ltd., 2018 ONCA 7, the Ontario Court of Appeal sought to clarify and limit the contractual language threshold for ousting the common law entitlement to reasonable termination notice. These cases will strengthen the employer’s enforceability argument in many cases. However, it continues to be difficult to resolve apparent inconsistencies in the case law, and to predict what will occur in the litigation of each particular case.
  10. Increased legal scrutiny for benefits plans that make age-based distinctions at age 65. In Talos v. Grand Erie District School Board, 2018 HRTO 680, the Human Rights Tribunal of Ontario concluded that the applicant had been discriminated against on the basis of age as a result of the statutory exception that permitted the elimination of his benefits when he reached the age of 65. The HRTO therefore determined that Mr. Talos’ rights under s. 15(1) of the Charter had been infringed. Furthermore, the HRTO held that, although the financial viability of benefits plans was a pressing and substantial objective, the government’s decision to legislate the statutory exception was not justified because it was not necessary to preserve the financial viability of benefits plans. This case strongly suggests that the statutory exception will be the subject of further litigation, and that benefits plans that make age-based distinctions for employees after reaching the age of 65 will now be subject to serious legal scrutiny.

Many thanks to Jordan Kirkness and Massimo Orsini for this article.

2018 was, without a doubt, another extraordinary year for US employers. The #MeToo movement continues to have a tremendous impact on the workplace. In addition, the thorny issue of how to manage contractor classifications in the gig economy continued to evolve and new DOJ enforcement activity is heightening concerns about no-poaching agreements and other antitrust activity. In 2019, employers will confront a host of new laws in 2019 on topics ranging from sick leave, lactation accommodation, salary history inquiries and much more.

Our 2018/2019 Digest is a fantastic resource to help you navigate the changes ahead and chart your course for 2019.

 

Click here to download the full Digest.

This month California’s Department of Fair Employment and Housing released an updated Sexual Harassment Poster and Brochure.

Either the poster or the brochure can be distributed to employees to meet legal requirements.

For more on new obligations for California employers with respect to sexual harassment prevention, click here.

Government contractors are familiar with the obligation to retain minority or women-owned businesses as subcontractors to obtain government work. Increasingly, apex private sector businesses require participation by minority or women-owned businesses as a condition of obtaining work, as well.

A recent decision by the federal court for the Southern District of New York is a cautionary tale, and highlights the care required when terminating a minority business enterprise (MBE) sub-contractor. Annuity Funds Operating Engineers Local 15 v. Tightseal, No. 17-CV-3670 (S.D.N.Y. August 14, 2018).

Continue Reading Termination Of An MBE Can Lead To Liability

Alyssa Milano tweeted #MeToo just about one year ago. Since then, we’ve seen unprecedented attention on sexual harassment in the workplace and a number of high profile individuals have been taken to task.

For employers, the spotlight, viral encouragement to come forward and public scrutiny is translating to an outpouring of claims and lawsuits. Indeed, in September 2018, the EEOC reported a surge in sexual harassment filings–more than a 50 percent increase in suits challenging sexual harassment over FY 2017.

Continue Reading #MeToo Legislation Lands In California With A Thud

Thanks to our Canadian colleagues for this alert: 

Ontario’s revised regulatory framework for cannabis is now in effect. Bill 36, the Cannabis Statute Law Amendment Act, 2018, received Royal Assent and came into force on October 17, 2018, amending 18 provincial statutes including the Cannabis Act, 2017  (now the Cannabis Control Act, 2017 ) and the Smoke-Free Ontario Act, 2017  (SFOA 2017).

Continue Reading It’s High Time: Ontario Finally Passes Its Cannabis And Smoke-Free Legislation

As we previously reported, New York State’s new sexual harassment prevention policy and training requirements take effect today, October 9, 2018.

After issuing draft documents in August, the State released final guidance clarifying the new requirements just last week, giving employers little time to get their ducks in a row before the October 9 deadline.

Continue Reading Effective Oct. 9, 2018: NY State Sexual Harassment Policy & Training Requirements

Last month the California Supreme Court ruled in favor of a class of 1,400 student bus drivers who sued their employer for failing to comply with state background check laws. The Court’s decision is notable because it is part of a broader trend of states and cities making it more difficult for employers to use background checks. Under Connor v. First Student, Inc., employers in California must comply with overlapping statutes regulating investigative consumer reporting agencies.

Continue Reading California Supreme Court Pro-Employee Ruling Affirms Employer Duty To Comply With Overlapping Background Check Laws