11 Things Your Boss Can’t (Legally) Doachkarlaw-admin
As the ‘boss’, employers may incorrectly believe they have complete control over the employment relationship between themselves and their employees. However, while employers may have the authority for operating their business, they must do so within the confines of the law. There are many things a boss can’t legally do.
In Ontario, there is a variety of legislation and court-made law governing the employment relationship. Ontario employers may be surprised to learn that it is not as simple as having a written agreement. That employment agreement’s provisions can be illegal and unenforceable if they do not comply with the law!
What are employers not allowed to do with their employees in Ontario? What happens if an employer violates employment regulations or rules? How can an employment lawyer help employers and employees in a workplace dispute?
This article will outline 11 actions employers cannot take against their employees, what could happen if an employer engages in such unlawful behavior, and how an employment lawyer can help with a workplace dispute.
Prohibited Employer Actions
While employers are subject to many prohibitions and in some cases have positive obligations, 11 actions employers cannot take against employees are:
Under the Ontario Human Rights Code (“Code”) or the federal Canadian Human Rights Act (“CHRA”), employees have the right to a workplace that is free from discrimination and harassment based on a number of protected grounds. Some examples of protected grounds include age, sex, race, ethnicity, sexual orientation, family status, religion, disability and more.
Employers have legal obligations to ensure their employees are not treated differently or unjustly due to any protected grounds outlined under the applicable Human Rights legislation – whether it be during the hiring process, during employment, or even upon termination of employment.
Discrimination can manifest in a variety of ways, and does not need to be intentional. Having a workplace policy in place does not prove an employer is not discriminating against an employee either.
Employers who fail to accommodate an employee’s expressed disabilities, religion, or family-status needs to the point of undue hardship may also be in violation of applicable Human Rights legislation. Terminating an employee because they suffered a disability preventing them from doing their full range of duties is a common mistake that leads to significant legal liability and risk for employers.
Employment agreements may not always expressly outline that employees should be treated with respect and dignity, but it is an implied term of any employment relationship. It is important to note that while certain actions or behaviors may not be considered harassment by the individual, it may be considered harassment legally.
Some examples of behavior that may be considered workplace harassment include, but are not limited to: discriminatory remarks, unwanted physical contact, sexual harassment, intimidation, public discipline, yelling, swearing, false allegations of poor performance or misconduct, and workplace violence.
Under legislation like Ontario’s Occupational Health and Safety Act (“OHSA”), employers have obligations to avoid workplace harassment and have a system in place to respond to employee complaints of workplace harassment.
An employer who fails to investigate, address, or otherwise condone harassment may be creating a toxic work environment. An employer who does not address workplace harassment and forces an employee to leave can be liable for constructive dismissal, and owing the employee severance pay.
Generally speaking, employers are prohibited from taking direct or indirect action against an employee attempting to enforce their rights in the workplace or making a workplace complaint. Examples of such actions include, but are not limited to:
- Disciplining or firing an employee;
- Changing an employee’s terms and conditions of employment;
- Harassing the employee;
- Terminating an employee’s benefits; and
- Demanding the employee’s resignation.
The action can be considered retaliation even if the employer took the action in close time proximity to the employee attempting to enforce their rights or making a complaint. Even if an employee is wrong about their rights or is not successful in their workplace complaint, they may still be entitled to remedies because an employer took actions to retaliate against them for raising such issues.
Wrongfully or Unjustly Terminating Employment
One of the most common mistakes employers make is terminating an employee without providing them proper notice or severance pay. When terminating an employee without cause, an employer has to either provide them working notice or severance pay equal to that period of notice.
Under both the Ontario Employment Standards Act, 2000 (“ESA”) and the federal Canada Labour Code (“CLC”) employers must comply with minimum termination requirements. Depending on the employment agreement with the employee, an employer may also be required to provide up to a grand total of 2 years of regular compensation and other perks the employee could have received had they kept working.
On rare occasions, employees believe they have cause for an employee’s termination and use that as a means to deny them severance. Employers should not allege cause for termination unless they have taken extensive steps to substantiate it, like conducting independent investigations, providing the employee with written disciplinary warnings, and providing the employee every opportunity to improve.
Employers also have obligations to carry out terminations in a good faith, professional, and respectful manner. Complicating an employee’s termination, making it ambiguous, denying them their minimum entitlements under the ESA or CLC, and engaging in otherwise abusive behavior in the manner of termination could result in fines and additional damages for employers.
Employers in Ontario cannot make deductions from an employee’s pay without their written consent, except in certain circumstances. Employers can only make deductions from an employee’s pay without authorization for the following:
- Benefits contributions;
- Statutory deductions; and
- Court-ordered payments.
An employer must provide their employees with pay stubs that outline all such deductions.
In Ontario, Employers must pay their employees at least twice a month and cannot withhold employee wages they would otherwise have lawfully earned. Where an employer has a dispute with an employee, it is not acceptable to withhold the employee’s wages if the employee worked the applicable hours.
Avoiding Vacation Obligations
Employers in Ontario cannot deny employees their vacation time, subject to limited exceptions. The ESA specifies that employees are entitled to at least 2 weeks of vacation time per year and must be paid vacation pay of at 4% percent of their wages. Employers must provide their employees with vacation time and must pay them the appropriate vacation pay.
Employers in Ontario cannot force non-managerial employees to work overtime without compensation. The ESA specifies that employees must be paid time and a half for any overtime that they work in excess of 44 hours in a work week.
Whether an employee works on an hourly or salary basis is not usually relevant. If the standard work week for an employee is 40 weeks, and they are regularly scheduled to work in excess of 44 hours a week, an employer may be liable for paying that employee overtime.
Misclassifying Employees as Contractors
Some employers try to falsely classify their employees as contractors to evade their legal responsibilities such as providing vacation and holiday pay, overtime pay, and minimum wage. Additionally, these employers may call their employee’s contractors to avoid paying severance when terminating an employee.
Employment law recognizes the actual nature and substance of the employment relationship when determining whether a worker is an employee or an independent contractor. Just because someone signs a contract that says they are a contractor or independent employee does not mean that is what they legally are.
Misclassifying an employee to avoid workplace regulations and minimize legal risk can cause an employer more problems than it solves. An employer could face fines, tax consequences, and extensive workplace investigations for misclassifying employees.
Forcing Retirement or Resignation
Employees have the power to choose whether to resign or retire from their current job. Both of these options are considered to be voluntary, self-initiated decisions and it is illegal for an employer to make this decision for the employee. Unless an employee has explicitly communicated to the company that they intend to retire or resign without any influence, employers cannot directly or indirectly force an employee to retire or resign.
If an employer forces an employee to retire or resign, it could be considered an act triggering a constructive dismissal – a form of termination without cause that could entitle an employee to severance. An employee who is forced to retire early could also seek damages for discrimination on the basis of age.
Changing or Breaching the Employment Agreement
Employers cannot make significant and substantial changes to an employee’s terms of employment without the employee’s express or implied consent. This can include changes to an employee’s wages, bonus, hours, work location, and duties. Where an employer makes such changes, an employee may be able to claim they are being constructively dismissed, and seek their severance pay.
If an employee agrees to the changes in writing or continues their employment for a reasonable timeframe under the changes, they can be said to be accepting the change. However, depending on the severity of the change and what term an employer is changing, they may refuse the change and sue the employer for severance pay.
Where an employer engages in conduct that breaches a written or implied term of an employment agreement, the employee can also claim constructive dismissal. Issues like placing employees on layoffs or suspending them without pay when there is no express contractual term allowing an employer to do so can result in liability for constructive dismissal.
Consequences for Unlawful Employer Actions
Workplace disputes can arise when an employer engages in behavior they should avoid, including those described above. Depending on the specific wrong committed, an employer can find themselves negotiating a resolution with the employee, the subject of a legal proceeding, and liable for significant damages.
For example, terminating an employee with a cause because they failed to perform when the employee asked for workplace accommodations could result in legal action against the employer for severance pay and additional damages. An employer can find themselves paying their own legal costs, having to pay an employee what a court finds they are entitled to, and potentially owe some of the employee’s legal fees as well.
How an Employment Lawyer Can Help
Whether you are an employee or an employer, the first step to understanding your rights and obligations is to consult with an employment lawyer. Everyone’s circumstances are different, and an employment lawyer has the expertise to appropriately advise about fact-specific workplace issues.
Employers can benefit from an employment lawyer’s legal advice before any workplace disputes even arise to minimize their legal risks. For example, employment lawyers can advise them of their legal obligations, help them establish legally compliant workplace protocols, and draft employment agreements with enforceable and risk-minimizing terms.
Employees can benefit from an employment lawyer’s guidance in navigating their workplace dispute, negotiating a resolution with their employer, and potentially suing to pursue their desired result.
Employment lawyers have the knowledge, negotiation skills, and advocacy training to help their clients avoid, resolve, and address their workplace disputes. Early consultation with an employment lawyer can be the difference between winning or losing a lawsuit.
It is important for both employees and employers to understand the laws and regulations that govern the workplace in Ontario. By being aware of the 11 things that employers cannot legally do, employers can minimize their risks and employees can pursue their entitlements.
While this article outlined some prohibited actions, they are not the only forms of wrongdoing that can land an employer in hot water. There is no substitute to a quick consultation with an experienced employment lawyer to understand legal risks, strategize for the next steps, and guidance about how to achieve a desired result.