Significant Changes to the Employment Standards Code, A Highlight of Bill 32

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By Patrick Trudel

The Legislative Assembly in Alberta has passed Bill 32 – the Restoring Balance in Alberta’s Workplaces Act, a significant piece of legislation comprising amendments to employment laws in Alberta. Though his article will focus primarily on changes to overtime in the province, it will also highlight several of the most pressing changes that will impact employees and employers.

Of significance are the changes made to Hours of Work Averaging Agreements. In September of 2019, amendments were made to the Employment Standards Code (Alberta) (ESC) aimed at repealing Flexible Averaging Agreements. Since then, employers have slowly become aware of these changes and begun to adapt their relationship with their employees to match this new reality. Further adaptation will be required to ensure that employers are on side of these most recent amendments.

Background

First off, it helps to understand what an Hours of Work Averaging Agreement represents. Most will know the term “compressed (or condensed) work week” from past iterations of the ESC. These were renamed to Hours of Work Averaging Agreements in a previous review of the ESC. The ESC provides that an employee is entitled to overtime pay for the greater of every hour they work in excess of 8 hours daily, or 44 hours weekly.  It is important to recognize that not all jobs are well suited to the “Monday-Friday, 9-5”. Many Albertans work evenings, weekends, and more importantly, alternative work arrangements that allow them to work schedules outside of the “normal” work week.

Let us take the example of Jim who delivers parts for a local shop. Jim works 8-hour shifts, but due to the needs of the business he works for, he is required to work 6 days of the week. Jim doesn’t work more than 8 hours every day, but because of his alternative schedule, he is entitled to 4 hours of overtime pay every week. Sadly, Jim’s employer is competing in a difficult market, and overtime is quite simply an expense he cannot afford. Faced with this reality, Jim and his employer come to an arrangement: the amount of hours he works per week will be averaged over a predetermined period of time; say 8 weeks. As long as enough days off are added on throughout the period to keep the average number of hours worked per week over that period of time below 44 hours/week, Jim will only be entitled to overtime for hours he has worked over 8 hours/day. This is known as an Hours of Work Averaging Agreement. The employee remains entitled to their overtime pay for any hours in excess of 8 hours they work in a day, while foregoing the overtime they may have been entitled to over the weekly period in a regular setting.

Now you might be saying to yourself: “well its only 4 hours of overtime… what’s the big deal?”. Sadly, Jim’s situation is only one of many. Take Donna for example: Donna works in Northern Alberta on an oil and gas site. She works a 10 day on, 10 day off rotation to cut down on commuting time. Over a 2-week period, she would be entitled to 12 hours of overtime despite never having worked more than 8 hours in a day or 10 days in a two week period. Over the course of a year, this would amount to a significant cost to her employer, and multiplied over many employees, could significantly alter the economics of the project she is working on, putting many jobs at risk.

These agreements have been viewed by many as a good compromise. Employees retain their daily overtime rights, while giving up their weekly overtime rights to ensure that certain workplaces can continue to exist. Often, these arrangements are entered into when the employee agrees to a job offer. It forms part of their employment contract and is agreed upon prior to commencing employment. In some situations however, employers have not been aware of this requirement, or the situation they found themselves in changed, and they must negotiate such an agreement with their employees.

These are two fairly common examples of Averaging Agreements. They can however vary drastically depending on the situation. Prior to coming to such an Agreement, an employer should strongly consider consulting with a lawyer to ensure the terms they are agreeing to with their employee are onside of the requirements of the ESC. Remember, in the event legal action arises, an employer can be liable for unpaid overtime.

New Developments

Several significant changes to Hours of Work Averaging Agreements were introduced under Bill 32. Firstly, “Averaging Agreements” will now be “Averaging Arrangements”. This is because employers now have the power to impose an averaging agreement on employees, provided they give 2 weeks notice of the proposed change to the employee. In addition, the period over which an employee’s hours can be averaged has been increased from 12 weeks to 52 weeks and no longer requires an end date. Finally, the employer will no longer need to provide daily overtime to the employee unless the Averaging Arrangement specifically provides for it. Despite the changes to daily overtime and the averaging of weekly overtime over a longer period of time, a daily number of hours worked is still limited to 12 hours.

These changes will impact employees and employers across several sectors of our province’s economy. Whether an employer is aware of the loosening of some of the restrictions that govern their conduct, or an employee is aware of the changes to their respective overtime entitlements, knowledge of the framework within which they must operate is essential to maintaining a positive working relationship between the parties.

Several other amendments were included in Bill 32. For brevity’s sake, we will not go into them in detail, but it serves to note that:

  • For the purpose of calculating holiday pay, average daily wage will not include vacation pay and general holiday pay;

  • Employers must provide at least 30 minutes of rest every 5 hours for shifts that are longer than 5 hours. The rest period can be within or immediately after the 5 hours of work. The employer and employee may mutually agree on an alternative time to take a break;

  • Individuals as young as 13 and 14-year-olds will be able to qualify for more types of work provided that an adult is present

  • Employers can now lay off employees for a period of 90 days within a 120 day period (up from 60 in a 120 day period). Separate rules apply for COVID-19 layoffs (180 consecutive days).

The vast majority of these amendments, and many more which have not been listed, will come into force on November 1st, 2020.

As COVID-19 has ravaged our economy, many employers are discovering the gaps that exist in their workplace policies. As difficult decisions are made to part ways with employees, litigation sometimes ensues which, though it is founded in constructive dismissal, often includes demands for unpaid overtime. Proper adherence to Alberta’s Employment Standards is paramount to operating a business of any size. The lawyers at Caron & Partners LLP understand this reality and stand ready to assist you in planning your transition to Alberta’s new Employment Law reality.

Ensuring you Insure Yourself Against the Claims of the Insured

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By Tami Fric and Patrick Trudel

If you own a condominium or townhouse, you likely have homeowner’s insurance of some kind. In fact, it is possible that your mortgage provider requires that you hold such coverage. But is your level of coverage sufficient for the kind of risk you’re taking on and, more importantly, are you fully aware of the risk you are exposed to?

Unlike living in a detached home, the scope of the damages that can be caused extends far beyond your property when living in a Highrise condominium or attached home. Think of common household hazards: water damage, inadvertent fire damage - we all know someone who has experienced these things or gone through it ourselves. The consequences of these have recently found themselves expanded. As of January 1st, 2020, changes to the Condominium Property Regulation of Alberta have come into effect. Specifically, section 62.4(1) allows Condominium corporations to chargeback to the individual condo unit owner the cost of their deductible on their insurance policy, up to a value of $50,000, for any damage found to be originating from the condo in question without needing to prove fault or negligence. This could result in a substantial headache, not to mention the potential ensuing litigation and resulting cost. With the recent history of property damage in our city (floods and hail to name a few), deductibles on condo corporation’s insurance policies have never been higher.

To protect against these things, you’ve purchased homeowners insurance. You have got to be covered… right? Not necessarily. There are two primary considerations for the homeowner in this regard:

1.       Does your insurance cover the condominium corporation’s deductible?

2.       If so, what amount is covered?

Remember that you can be charged up to a maximum of $50,000. If your insurance policy covers deductibles to the tune of $25,000, but your condominium corporation’s deductible is $40,000, then you have a deficiency of coverage to the tune of $15,000 that likely needs to be rectified. Knowledge is key, so consider following these three steps:

1.       Ensure you are an insurance policyholder in good standing;

2.       Ensure your current policy covers your condominium corporation’s deductible;

3.       Contact your condo board and ask for a copy of their Certificate of Insurance, showing the deductible amount, and ensure you are sufficiently insured (sadly, they may charge you a fee for this).

Property owners are not the only ones needing to pay attention to these changes. Where increased liability exists for a landlord, accompanying increases in liability could exist for the tenant. Section 21 of the Residential Tenancies Act confirms that tenants automatically covenant under all tenancy agreements to not damage the premises. Based on this obligation, Landlords retain the right to sue the Tenant under section 26(1)(d) for damages resulting from the breach – in this case, the physical damage to the unit, or evict them under section 30(1). Although the tenant would have needed to be negligent in their conduct or shown an intent to damage the premises, they still need to be aware of the possibility that they could be sued for the costs resulting from their negligence.

In keeping with the above trend, tenant’s insurance is a fantastic way to limit liability in case of damages. The tenant could consider naming their landlord as an additionally insured party, as the insurer would then be able to cover the condominium corporation’s deductible, leaving a smaller deductible for the tenant to cover. It should be noted that the amount insured would need to be sufficient to cover the often-large cost of repairs in a condo building and it is imperative that you ensure that your lease agreement permits you to undertake this type of risk mitigation strategy.

Property owners and tenants need to take careful notice of these recent legislative amendments that could leave them woefully unprepared for possible surprises arising from their occupation of a multi-family building. Real Estate lawyers at Caron & Partners LLP stand ready to advise you if you’ve suffered severe damage originating from your condo.

Returning to Work After the Pandemic Shutdown

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by Patrick Trudel and Jennifer Sykes

As Canadians slowly begin to emerge from our COVID-19 imposed isolation, businesses are faced with a new set of difficult questions about their obligations to their staff. Employers need to make sure that they are fulfilling their duties to their employees.

This post is intended to shed some light on several things that employers should keep in mind as they work their way through the new set of challenges we are all now facing. It is primarily intended for non-unionized workplaces.

Staying in the Loop:

Before you undertake costly measures to prepare to re-open such as purchasing inventory and PPE (personal protective equipment), it is important to make sure that decisions are made based on accurate and up to date information.

Things can always change (as was demonstrated with the recent staggered reopening of Calgary and Brooks compared to the other zones in the province and the resulting confusion and costs to local businesses). However, information is key and the best approach is still to stay as up to date as possible.

The Government of Alberta is constantly updating its main Covid-19 relaunch webpage. It should be consulted frequently to determine whether reopening is appropriate and to keep track of potential future increased restrictions or requirements.

Managing Risk:

Employers must provide a healthy and safe workplace. This should be your “guiding star” when deciding exactly how and when to re-open.

This is about protecting your people and about protecting your business from liability. It is important to make sure that you are not only meeting specific legislated standards but also general obligations for what is expected in your industry. Failure to do so could result in penalties, lawsuits, or worse.

The starting point will be to make sure that you comply with mandatory legal requirements. See the end of this post for some starting points on where you may be able to find these. This won’t be enough on its own, though.

As an employer, you need to make sure that you have “reasonable” precautions in place. This is easy to say but may not be so easy to implement. What exactly is “reasonable” will vary depending on the circumstances. A good place to start might be industry-specific guidelines and recommendations.

You should keep a record of the source documents you looked at when creating your plan. That record might be all that stands between your business and significant liability.

If you are subject to workers’ compensation legislation, this doesn’t mean you are necessarily protected from claims by your employees. The WCB has set out its requirements for a COVID-19 related claim.

When you are putting together your return to work plan, remember that there are certain principles of hazard management which may be helpful for you to keep in mind. These principles tell us that, hazards should be identified and eliminated. In the event that they cannot be eliminated, they must be controlled. There are 3 general approaches to controlling hazards, from most to least preferable they are:

  1. Engineered controls, such as physical barriers between people;

  2. Administrative controls, such as limiting the number of people who may be in an area at the same time; and

  3. The use of personal protective equipment (PPE)

Privacy Concerns:

A key part of protecting your staff will be controlling whether people who are showing symptoms of COVID-19 are coming into your place of business.

You might want to screen your employees (plus potentially clients and visitors). When you are considering this, keep in mind that privacy legislation might limit what information is collected, how it is collected, and how the data is used and stored.

Generally, you should only collect that information which is reasonably required given the circumstances. What is reasonable will depend on your industry, what science says, and whether there are less invasive ways to achieve the same result.

You should try to collect data in the least invasive way possible. Examples of this could include asking questions privately, designating which employees are tasked with asking questions, and establishing policies for how information is used and stored.

One of my Employees has Tested Positive for COVID-19, Now What?:

You are required by occupational health and safety legislation and as part of your civil duty as an employer to address safety in the workplace.

If someone tests positive, some of the steps are very clear. That person needs to be sent home immediately and should not be permitted to return until they are no longer required to self-isolate under Provincial standards. Their workstation and anything else they have had contact with should be cleaned.

Disclosing to other staff is a bit of a balancing act. If other employees could have been exposed, they need to be warned, but you will need to make sure that you are only disclosing the information required to protect the safety of your workers. Going beyond that and giving out more information than necessary could get you into trouble under privacy legislation. This is going to be a very difficult and sensitive situation and needs to be carefully handled.

Refusal to Work:

What if an employee doesn’t want to come back to work? There is a process through occupational health and safety to deal with this situation, and if the employee still refuses to come back to work once the workplace has been deemed to be safe, this may be grounds for termination.

The Duty to Accommodate:

Even if a workplace is generally safe, that doesn’t mean it is safe for everybody. An employee might have a medical condition, or some other reason protected under human rights legislation that prevents them from returning to work.

You might have a duty to accommodate a particular employee’s specific needs. This might mean adjusting the workplace or the terms of work. The Alberta Human Rights Commission has devoted resources to ensuring access to relevant information. These resources may help you understand the human rights consequences of reopening policies.

Vacation time:

One frustrating aspect of the COVID-19 lockdown has been our inability to travel. Unable to go visit family or take a vacation, many employees have opted not to use their vacation time yet. They may be entitled to a significant amount of vacation time, and half of the calendar year has already passed.

Employers can require the employee to take their vacation at a time that works for the employer, subject to certain requirements in employment legislation. This may be something to keep in mind when planning re-opening. It may be preferable to have a vacation schedule in place rather than have the entire staff request vacation at once in December.

As a small business, we at Caron & Partners are also tackling many of these issues on an ongoing basis. As you undergo your own reopening, do not hesitate to reach out to our professionals with any questions or concerns. We look forward to working with you as you ensure a stable and fruitful future for your business.

Resources:

There are a lot of resources out there for employers, and sometimes the volume of information can feel overwhelming. Here are just a few resources which may be helpful from the Province of Alberta:

·         Temporary Workplace Rule Changes

·         Covid-19 General Relaunch Guidance

·         The PPE Code of Practice

·         Biz-Connect

Despite Covid-19, Caron & Partners LLP Remains Able to Provide Services to Clients

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The firm is taking steps both to protect the public and its members from the spread of the coronavirus, without sacrificing service to its customers. We are committed to keeping a core group of lawyers and assistants available to our clients through electronic and work-from-home capabilities. We are gearing up to advise clients regarding the special issues that are arising from the Covid-19 crisis. Our modern technology is allowing us to stay ahead of both the legal issues and the practical constraints of this unfortunate state of emergency.

Court Proceedings in Alberta Are Severely Restricted due to Covid-19

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The Alberta Court of Queen’s Bench has announced that it is limiting hearings to emergency or urgent matters only. Emergency matters are those in which serious consequences to persons or harm to property may arise if the hearing does not proceed, or if there is a risk of loss of jurisdiction or expiration of an existing protection or restraining order. For full details, go to https://www.albertacourts.ca.

The Provincial Court of Alberta has also announced closures. Effective March 17, 2020, all Traffic Courts in Alberta will be closed.

In other areas, the Provincial Court is limiting all regular operations effective March 17, 2020. Civil matters, with the exception of pretrial conferences and case management, that are set to proceed before May 22, 2020 will be adjourned indefinitely. Pre-Trial Conferences and Case Management will be conducted by telephone.

Non-urgent family matters set to be heard after March 17, 2020 will be adjourned for ten weeks from the scheduled court date.

Criminal and Youth Criminal matters are also affected.

For full details regarding Provincial Court matters, go to https://www.albertacourts.ca.

Another Year of Support for Inn from the Cold

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We are proud to announce that we have once again made a sizeable donation to Inn from the Cold. A number of years ago we decided that rather than send Christmas gifts to clients we would instead donate the funds to a charity at Christmas. All of the lawyers and staff individually, and the Firm collectively contribute. We are pleased with this year's total contribution, one of our best years ever! Thank you to all lawyer and staff.

CARON & PARTNERS DONATES TO RED CROSS FUNDING DRIVE FOR FORT MCMURRAY

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Responding to emails received from the Alberta Branch of the Canadian Bar Association, our firm has made a substantial donation to the Red Cross which is one of the organizations assisting in the Fort McMurray disaster. The firm donation is in addition to individual donations being made by firm members including lawyers and support staff. Our best wishes go out to all of those affected by this horrible event. We hope that all Albertans, indeed, all Canadians, come together to assist our fellow citizens.

Copyright in Seismic Data

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Currently a decision is pending in the Alberta Court of Queen's Bench regarding whether copyright can subsist in seismic data. Notwithstanding longstanding industry acceptance that copyright does subsist, government boards, oil and gas companies and, surprisingly, some seismic companies maintain that there is no copyright in seismic data. Our firm is representing a seismic company plaintiff that is fighting to establish copyright in seismic data. Stay tuned.