Archive for the ‘Employment Law’ Category

When “Regular” Employees Owe Fiduciary Duties and Why it Matters

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Categories: Blog, Employment Law
While all employees owe a duty of fidelity to their employers, certain employees owe an elevated fiduciary duty.

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Employment Considerations When Buying or Selling a Business

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Employees can be an organization’s greatest asset but also – in the circumstances of a corporate transaction – its greatest liability.

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COVID-19 and Employment Contracts

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COVID-19 has posed great challenges for employers who are facing an interruption, modification, or perhaps even a closure of their businesses.

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Extending Temporary COVID-19 Layoffs Beyond August 30, 2020

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Categories: Blog, Employment Law
On June 25, 2020, the province introduced regulatory amendments to allow temporary layoffs to continue for up to 24 weeks, or until August 30th, whichever comes first.

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Did You Dismiss Your Employee or Did They Resign? A Recent Example of Resignation

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Categories: Blog, Employment Law
When an employee voluntarily resigns from their employment they cannot successfully sue their employer for wrongful dismissal. However, determining whether an employee has actually resigned is not always straightforward.

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Employers’ Costs to Rise with WorkSafeBC Changes that Increase Insurable Earnings

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Categories: Blog, Employment Law
The BC NDP are moving forward with proposed changes that claim to modernize the Workers’ Compensation Act.

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Extension of Temporary Layoffs to 24 Weeks

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Categories: Blog, Employment Law
Many employers have been worried about the status of their employees who are still on temporary layoff.

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Childcare, Human Rights and COVID-19

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Categories: Blog, Employment Law
Childcare is one of the most difficult areas to navigate for employers during the COVID-19 pandemic. Schools and daycares were closed forcing many employees to balance working from home with childcare obligations.

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Layoffs, Recalls and Terminations – The Aftermath of COVID-19

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On March 17, 2020, Dr. Bonnie Henry, B.C.’s Provincial Health Officer, declared a public health emergency.  The following day, March 18, 2020, Mike Farnworth, Minister of Public Safety and Solicitor General, declared a provincial state of emergency to support a province wide response to the COVID-19 pandemic.  This signaled the closing of many BC business and the resulting layoff of employees.

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Reopening and Returning – The Move from Lockdown to Baby Steps

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As you are no doubt aware, we are in Phase 2 of BC’s restart plan.

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Returning to Safe Operation

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The BC Government has announced its phased approach to reopening businesses.  The BC Government has partnered with WorkSafeBC to develop resources and general guides to assist in the transition from virus-related lockdown to carefully restarting social and commercial life.

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Returning to Work and Reopening Your Business in the Wake of COVID-19

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Unprecedented times have called for unprecedented measures. Now, we see a flicker of light at the end of tunnel as BC has released its plan for easing the restrictions.

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Employment Standards Severance May Not be Required as a Result of COVID-19

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Categories: Blog, Employment Law
The British Columbia government recently announced that employees may not be entitled to notice of termination or termination pay pursuant to the BC Employment Standards Act if their employment is terminated as a result of COVID-19.

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New Employment Standards Act Protections for Individuals Impacted by COVID-19

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Categories: Blog, Employment Law
The Employment Standards Act was amended to provide job protection to persons who are ill, need to self-isolate, need to care for their child or other dependent, or whose employer is concerned that the employee may expose others to risk as a result of the COVID-19

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Summary of Relief Packages for Businesses

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Categories: Blog, Employment Law
On March 23rd, the British Columbia government announced a $5-billion economic relief plan to support families, businesses and economic recovery in response to COVID-19.

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Province Releases List of Essential Services in British Columbia

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Categories: Blog, Employment Law
The provincial government published its list of essential services on March 26th. Essential services are workplaces that are encouraged to stay open by the provincial government.

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WorkSafeBC Claims for COVID-19

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Categories: Blog, Employment Law
This is an unprecedented time due to the COVID-19 pandemic. The effects of the spread of the virus are being felt across all industries by employers and employees alike.

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Layoffs, Working Remotely and School Closures as a Result of COVID-19

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Categories: Blog, Employment Law
Our governments have made several directives and recommendations since our previous articles which we address below. This article also canvasses issues such as school closures, layoffs resulting from COVID-19, working remotely and bans on large public gatherings.

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COVID-19 and Frustration of Contracts

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Categories: Blog, Employment Law
Organizations are suddenly facing economic uncertainty given the new and far reaching consequences of COVID-19.

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COVID-19 (Coronavirus) Update For Workplaces

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Categories: Blog, Employment Law
COVID-19 (also known as the coronavirus) has had a significant impact on Canadian workplaces. It is a novel virus that has left employers and employees scrambling.

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COVID-19 Q & A

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Categories: Blog, Employment Law
Employers and Employees are pondering their rights in light of the Corona virus. We have set out some of the questions that might arise and our answer to same.

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Workplace Sexual Harassment Following the #metoo Movement

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Categories: Blog, Employment Law
Sexual harassment in the workplace exists on a spectrum. It can range from unwelcome comments of a sexual nature to sexual assault.

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WorkSafeBC Penalty of Over $600,000

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Categories: Blog, Employment Law
In December 2019, the Metro Vancouver Regional District received an administrative penalty of $637,415.60 for committing high risk safety violations.

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Employment Law/Restrictive Covenants

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Categories: Blog, Employment Law
A recent case in BC illustrates the danger of employers using restrictive covenants that are too broad.

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WorkSafe BC and Young Workers

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Categories: Blog, Employment Law
In my practice I frequently receive inquiries from workers in their forties to sixties who are seeking assistance with old injuries.

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The (Un)Enforceability of Non-Competition Agreements

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Categories: Blog, Employment Law
Many employment agreements contain non-competition clauses that seek to prevent an employee from later working for a competitor.

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The Perils of Probationary Periods

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Categories: Blog, Employment Law
Employers frequently misunderstand their obligations when dismissing probationary employees.

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Amendments to the Labour Relations Code – Bill 30

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Categories: Blog, Employment Law
On April 30, 2019, BC’s Labour Minister, Harry Bains, introduced proposed changes to the Labour Relations Code (the “Code”).

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Major Changes to Employment Standards Are Coming

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Categories: Blog, Employment Law
Significant revisions to the British Columbia Employment Standards Act that purport to impact nearly all workplaces in British Columbia are scheduled to come into force shortly.

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WorkSafeBC Mental Disorder Presumption

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Categories: Blog, Employment Law
Regulatory changes took effect on Tuesday, April 16, 2019 that expanded the presumption for mental health disorders caused by work.

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Family Status Discrimination Test Affirmed by BC Court of Appeal

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Categories: Blog, Employment Law
The British Columbia Court of Appeal recently affirmed that the test for assessing discrimination in employment on the basis of family status differs from other protected grounds.

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Bad Behaviour and Termination

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Categories: Blog, Employment Law
We often see cases in our office where a client presents a situation where an employee has behaved in outrageous fashion.

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New Employer Health Tax Comes Into Force

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Categories: Blog, Employment Law
British Columbia’s new Employer Health Tax came into force on January 1, 2019.

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Article 2 – Injured Worker Series: Settlement of WorkSafeBC Claims

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Categories: Blog, Employment Law
We are frequently asked about “settling with the Board”. Our response is that you cannot settle with WorkSafeBC.

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Article 1 – Injured Worker Series

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Categories: Blog, Employment Law
WorksafeBC is the provincially legislated body having exclusive jurisdiction to adjudicate all issues related to most worker injuries.

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Weed at Work: What Are Your Rights?

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Categories: Blog, Employment Law
Consumption of recreational cannabis will be legal as of October 17th. While some Canadians are rejoicing, many businesses are understandably nervous.

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Summary of Recent Changes to Workplace Laws in BC

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Categories: Blog, Employment Law
British Columbia has had a new provincial government since July 2017. Over the past 10 months, the John Horgan government has revised or sought to revise various workplace laws.

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Minimum Wage to Increase by 34% over Four Years

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Premier John Horgan recently announced that the minimum wage rate in British Columbia will rise to $15 per hour by 2021

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SCC Confirms that Human Rights Code Applies to Employees Who Do Not Share the Same Employer

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Categories: Blog, Employment Law
The British Columbia Human Rights Code prohibits discrimination in employment.

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Think Twice when Dismissing an Employee Prior to the First Day of Work

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Categories: Blog, Employment Law
Most employers are aware of the obligation to provide an employee with notice of termination or pay in lieu of notice.

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“I Quit!” Does Not Always Mean “I Quit”

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Categories: Blog, Employment Law
Employees who voluntarily resign from their employment cannot successfully sue their employers for wrongful dismissal.

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Defamation and Reference Checks

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Categories: Blog, Employment Law
Reference checks can put former employers in an awkward position. Employers want to tell the truth but may be concerned about the potential legal consequences of providing a bad reference.

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Court of Appeal Provides Clarity on Aggravated Damages Flowing from Wrongful Dismissal

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Categories: Blog, Employment Law
A recent case from our Court of Appeal articulates the standard required to establish an entitlement to aggravated damages resulting from a wrongful dismissal.

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Alberta to Overhaul Workplace Rules for First Time in Almost 30 Years

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Categories: Blog, Employment Law
The Alberta government recently introduced a bill to modernize Alberta’s workplace laws entitled the Fair Family-Friendly Workplaces Act.

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Provincial Government Bans Mandatory High Heels in Workplaces

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Categories: Blog, Employment Law
The provincial government recently amended the Occupational Health and Safety Regulation to ban the practice of requiring employees to wear high heels in the workplace.

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Reducing Legal Expense in Wrongful Dismissal Actions

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Categories: Blog, Employment Law
This short article will summarize some strategies for employers and employees in making wrongful dismissal actions less expensive.

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Non-Union Federal Employees Score Historic Win in Supreme Court Case

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Categories: Blog, Employment Law
In what will no doubt be one of the most impactful employment law cases of the year, the Supreme Court of Canada in Wilson v. Atomic Energy of Canada has found that federally regulated employers cannot, absent economic reasons, terminate a non-unionized employee without just cause.

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Employees Distinct From Contractors

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Categories: Blog, Employment Law
In the world of employment law there are “independent contractors” and there are “employees,” each one has pros and cons from both the employer and employee perspective.

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Swinging the Heavy Hammer: Just Cause Terminations

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Categories: Employment Law, Firm News
Pushor Mitchell is pleased to announce Swinging the Heavy Hammer: Just Cause Terminations, the next presentation in our LawTalks: Business Law Today series.

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Using Summary Trials in a Wrongful Dismissal Action

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Categories: Blog, Employment Law
The high costs of litigation and the long delays to have a matter heard in court have raised serious concerns with respect to access to justice in Canada.

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Illness or Disability During the Notice Period

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Categories: Blog, Employment Law
It is settled law that an employee who is wrongfully terminated is entitled to “reasonable notice” which can be working notice or compensation in lieu of notice.

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Misrepresentation in Employee Recruitment: Feldstein v. 364 Northern Development Corporation

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Categories: Blog, Employment Law
Employee recruitment, and particularly recruitment for highly competitive positions, often requires a certain amount of salesmanship on the part of recruiters.

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Increasing Damages for Workplace Discrimination : The Presteve Foods Case

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Categories: Blog, Employment Law
Across Canada, Human Rights Tribunals have a unique role in our legal system by enforcing protections against discrimination provided by human rights legislation.

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Having Your Severance and Eating It Too

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Categories: Blog, Employment Law
Employees who are passed from one employer to another in the event of the sale of a business create interesting issues for employment lawyers.

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A Lesson in How Not to Conduct a Workplace Investigation

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Categories: Blog, Employment Law
When an employee is terminated without good legal reason, the employee will generally be entitled to damages for wrongful dismissal.

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Terminated? Laid Off? Dismissed? 7 Factors in Assessing Severance Pay

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Categories: Blog, Employment Law
We've all heard one of the following stories... An employee in heavy industry is laid off because of a downturn in the economy. Or an office worker is let go because she doesn't get along with her supervisor.

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Terminating an Employee on Medical Leave

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Categories: Blog, Employment Law
Questions concerning disabilities and the duty to accommodate are often misunderstood.

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Can An Employee Be Unfired?

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Categories: Blog, Employment Law
In a recent British Columbia case our courts considered whether an employer would be excused from paying severance pay to a terminated employee by offering to rehire her.

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“Can We Talk About Your Health?” : Human Rights and the Duty to Inquire

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Categories: Blog, Employment Law
Health information is sensitive. Very sensitive. And given the intimate nature of this information, the BC government has understandably put in place important protections.

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Is There a Duty to Accept Re-employment?

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Categories: Blog, Employment Law
Contrary to popular belief, dismissed employees are expected to make reasonable efforts to find replacement employment.

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The Duty to Mitigate

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Categories: Blog, Employment Law
Employment lawyers should tell their wrongfully dismissed ex-employee clients about the duty to mitigate.

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Termination of Federally Regulated Employees Without Cause

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Categories: Blog, Employment Law
Most non-unionized employees can be dismissed without cause with appropriate notice or pay in lieu.

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Before You Sign…

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How many simple documents or forms do you sign each year without reading?

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Employers’ Presentation Series: An Inside Look into Employment Standards

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Categories: Employment Law, Firm News
Pushor Mitchell is pleased to present "An Inside Look into Employment Standards."

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Employers’ Presentation Series: Understanding Workers’ Compensation and Occupational Health and Safety

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Categories: Employment Law, Firm News
Pushor Mitchell is pleased to present “Understanding Workers' Compensation and Occupational Health and Safety.”

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Employment Law Q and A

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Categories: Blog, Employment Law
I fired an employee and paid the Labour Standards severance pay of 4 weeks. Now the employee is suing me for more? Is that right?

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Employers’ Presentation Series: Strategies for Early Conflict Resolution and Litigation Risk Mitigation

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Categories: Employment Law, Firm News
Pushor Mitchell is pleased to present "Strategies for Early Conflict Resolution and Litigation Risk Mitigation."

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5 Steps to Appeal a WorkSafe BC Decision

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Categories: Blog, Employment Law
As an employment lawyer, I have met with dozens of people who have suffered a workplace accident and are now fighting for their compensation benefits. Fortunately, there is an avenue for workers to contest unfair decisions from WorkSafeBC. The process is long and difficult, but in many circumstances workers are able to overturn the decision

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7 Common Questions on Overtime in BC

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Categories: Blog, Employment Law
The Employment Standards Act provides basic conditions of employment for workers under provincial jurisdiction throughout British Columbia. Although most of these standards are fairly clear, one area of frequent confusion is with respect to overtime.

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Think Twice Before You Sue

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Categories: Blog, Employment Law
Jian Ghomeshi is just one example of an employee who regrets taking action against his employer. A recent case in BC involved a project manager who was terminated without just cause. He sued his employer wanting more severance pay

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Employers’ Presentation Series: Effective Hiring Practices

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Categories: Employment Law, Firm News
Pushor Mitchell is pleased to announce Peas in a Pod: Effective Hiring Practices for Today’s Employer, the second in our new employment law series, Navigating the Seas of Change. In today’s era of labour shortages, many employers are frustrated by their inability to attract and retain qualified candidates. Unfortunately, with the BC Government estimating that […]

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Key Changes to Temporary Foreign Works (TFW) Program

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Categories: Blog, Employment Law
Program name change from Labour Market Opinion (“LMO”) to Labour Market Impact Assessment (“LMIA”); Caps on percentages of foreign workers starting at 30% and reducing to 10% in 2016; Prohibition of TFW in low wage and skill groups in areas in certain sectors (food services, accommodation and retail trade) where there is high unemployment (6% […]

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Caregiver’s Rights to Flexibility Succeed Second Challenge

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Categories: Blog, Employment Law
On February 17th, last year I wrote about a case (Johnstone v. Canada (A.G.)) in which a mother was awarded substantial damages because her employer did not accommodate her requests for flexible hours she said she required to care for her children.  My article can be found at:  www.pushormitchell.com/law-library/article/new-developments-employee-leave-family-obligations

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Employee Notice Period Enforced

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Categories: Blog, Employment Law
In a recent case involving Blackberry and one of its executive employees a court made a declaration that a relatively long notice period by an employee (six months) is valid and enforceable. Most often employment agreements only require notice periods in the range of two weeks to a month. In the case the employee had, in an employment contract, agreed to provide six months’ notice of his resignation.

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Cheeky Note To Manager Gets Gas Station Employee Fired

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Categories: Blog, Employment Law
A tired Michigan BP gas station attendant who had just completed the night shift and wanted to go home put his boss on blast and lost his job as a result. The employee was waiting for his manager to relieve him and she was an hour late because, she said later, she had slept through her alarm. The employee locked up the store and went home, but not before taping a handwritten note to the inside of the glass doors of the gas station, where [...]

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Employee Internet Use

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Categories: Blog, Employment Law
The internet is a valuable tool in most workplaces. It is a vast, quick and free source of information. While the information gleaned from a search is likely not to yield a definitive answer, it almost always provides a direction to the answer.

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Where There’s No Smoke … Electronic Cigarettes at Work

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Categories: Blog, Employment Law
At this time there are no municipal bylaws or workers’ compensation regulations preventing the use of electronic cigarettes in the workplace. Does this mean that employers need to allow their employees to use these devices?

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Suing For Everything But The Kitchen Sink

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Categories: Blog, Employment Law
Emotions can run high in any civil dispute. The parties in their anger will speak poorly of the other, they may treat each other with disdain or disrespect in the process. Feelings will inevitably be hurt and often psychological injury -- temporary or permanent - may result.

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Social Media And Trade Secrets

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Categories: Blog, Employment Law
Employers encourage key employees, particularly sales employees, to use a wide variety of social media sites including Twitter, Facebook, and LinkedIn to connect with customers and prospective customers.Professional firms encourage their members to publish articles on blogs (and websites like this) to promote knowledge and skill to their customers and prospective customers. All is well until there is a break in the relationship.

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Tough Economic Times – What Can An Employer Do?

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Categories: Blog, Employment Law
With the decline in general economic activity and increasing competition from low wage countries, what can employers do to lower their labour costs?A human resources professional could help with issues concerning motivation and productivity.  An engineer or technician could help with respect to technology and modernization of processes and procedures.  This article will discuss the legal issues surrounding reduction of workforces [...]

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No “Rule of Thumb” For Establishing Notice Periods For Fired Employees

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Categories: Blog, Employment Law
Many non-lawyers (and many non-employment lawyers) will make reference to a “rule of thumb” that provides that a terminated employee is entitled to one month per year of service.However, in two recent decisions, the British Columbia Courts have re-affirmed that there is no “formula” or rule of thumb that can be applied in determining how much notice an employee may be entitled to on the termination of their employment.

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The Constructive Dismissal Conundrum

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Categories: Blog, Employment Law
One of the issues plaguing lawyers in giving advice to employees whose terms and conditions of employment have been altered is whether the employee should withdraw services and claim constructive dismissal or keep working while looking for new employment.

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Nice Try

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Categories: Blog, Employment Law
An employer tried to reduce its severance pay obligation by ceasing payments to a terminated employee when he found new employment. In the case (Allen v. Ainsworth in BC Supreme Court), the employer unilaterally gave working notice and removed the employee’s duties. In essence, the employee was being paid to stay away. When the employee found other employment during the notice period, the employer stopped paying his salary. The [...]

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Workplace Equality: When Is It Legal To Terminate An Employee On Parental Leave?

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Categories: Blog, Employment Law
It is undeniable that employers must not discriminate against employees because of pregnancy parental leave. That being said, sometimes legitimate business reasons require an employer to reorganize their work force. In such circumstances, must an employer protect an employee who is pregnant or on parental leave when making decisions about how to downsize?According to a recent Canada Labour Arbitration decision, the answer is a resounding [...]

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Do Guarantees Mean What They Say?

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Categories: Blog, Employment Law
In a recent decision in the Ontario Court of Appeal (Royal Bank of Canada v. Samson Management), the Court upheld guarantee language that was clearly designed to take away common-law protection for guarantors.  Under the common law, the guarantor might avoid his obligations where changes are made between the lender and borrower which affect the risk and exposure of the guarantor.

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Employee Dishonesty? Not Always Grounds For Firing

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Categories: Blog, Employment Law
Most of us know that employers have the right to terminate an employee ‘for cause’ at any time during the employment relationship.  If an employer has ‘cause’ to terminate an employee, the employer can do so immediately, without notice to the employee and without paying any severance.  However, many lawsuits arise over the question of whether the employer, in fact, had ‘cause’ to terminate the [...]

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Language Discrimination

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Categories: Blog, Employment Law
Can an employer require employees to speak only a certain language in and around the workplace?  A related question is:  can an employer only hire employees with certain language skills?

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New Developments In Employee Leave For Family Obligations

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Categories: Blog, Employment Law
A recent case in the Federal Court of Canada has nudged the door open a little further to more liberal rights for workers needing work accommodations to care for family members.In the case a Border Services employee wanted to work a set shift that was complementary to  her daycare arrangements. The employer did not offer such a shift. The employer argued that accommodating the employee would be a real hardship given that it services [...]

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Does A Termination Release An Employee From A Covenant Not To Compete

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Categories: Blog, Employment Law
A recent case in Alberta (Globex- 2011) suggests that an employer who terminates an employee without just cause and without sufficient notice repudiates the contract of the employment and thus releases the employee from all obligations including any clause preventing the employee from competition and solicitation of the employer’s customers and employees.The case is controversial and must be read with some caution because:

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Who Is Your Employer?

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Categories: Blog, Employment Law
In most cases employees are not overly concerned about the precise legal identity of their employer.  It does become an important issue when the employment relationship breaks down and the employee is seeking a remedy.

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The Latest Word On Personal Use Of Work Computers

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Categories: Blog, Employment Law
The Supreme Court of Canada, in a just-released decision (R. v. Cole), has indicated that an employee has a reasonable expectation of privacy with respect to personal information stored on employer's computer where personal use is permitted or reasonably expected.

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Bill 14 – The B.C. Government’s Response To Workplace Bullying

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Categories: Blog, Employment Law
The BC provincial government recently passed into law Bill 14 (the Workers’ Compensation Amendment Act, 2011), which amends the mental stress provisions of the Workers’ Compensation Act (the “Act”) to address bullying and harassment in the workplace. As of July 1, 2012, an employee in British Columbia may have a worker’s compensation claim for a […]

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WorksafeBC’s Surprise For Homeowners

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Categories: Blog, Employment Law
I was alarmed to learn that WorksafeBC is of the view that that a homeowner who hires a person to do a project that will take more than 24 man (person) hours must register with the WCB and pay premiums with respect to the work.  If the homeowner fails to do so he or she […]

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A Heads Up For Federally Regulated Employers (FRE)

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Categories: Blog, Employment Law
Did you know that a FRE is restricted from terminating non-management employees having a year or more of service other than for cause or valid business reasons such as reduction of work?Under the Canada Labour Code an unjustly dismissed employee can file a complaint and can be awarded damages and/or reinstated if an employer terminates without just cause or economic reason.This right is not strong as that enjoyed by unionized employees but [...]

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The Hiring Process – Can An Employer Use Social Media?

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Categories: Blog, Employment Law
With the ever-changing technology and innovation of social media and the potential uses for it, a question that is often asked by employers is whether they can use social media to perform a ‘background check’ on potential employees. For example, if a candidate sends their resume to a potential employer, can that employer look them up on Facebook? Twitter? Can the employer use Google to give them a list of what is out there? And [...]

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Ask A Lawyer – Non-Competition Clauses?

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Categories: Blog, Employment Law
I am leaving my long-term employer to work for a competitor.  I have not signed any agreements restricting my ability to compete. I have nothing to worry about right?Believe it or not, a departing employee may have obligations which arise outside of a written contract.Contractual provisions which restrict the ability of employees to compete with an employer are called non-competition and non-solicitation clauses.

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BC Government Introduces Bill To End Teacher Strike; The Education Improvement Act

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Categories: Blog, Employment Law
The BC Government has introduced Bill 22, legislation to end the BC teacher’s strike. Bill 22 , called the Education Improvement Act,  suspends the teachers’ strike action and sets a "cooling off" period, appoints a mediator to facilitate bargaining, and implements a new $165-million Learning Improvement Fund and other enhancements to K-12 education. Bill 22 […]

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Take Your Notice And Shove It

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Categories: Blog, Employment Law
Our Court of Appeal has in a recent decision involving a Sechelt bus driver caused me to rethink obligations on the giving and receiving of working notice of termination.In the case the employer and employee disagreed on the employee’s hours.  In frustration the employer gave five weeks’ notice of termination.  The employee had five years’ service and was entitled to more notice than that although it is unclear [...]

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Tough Economic Times — What Can An Employer Do?

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Categories: Blog, Employment Law
With the decline in general economic activity and increasing competition from low wage countries what can employers do to lower their labor costs?

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The Independent Contractor Trap

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Categories: Blog, Employment Law
An all too typical typical Friday afternoon call to an employment (or tax) lawyer goes something like this: "Oh my God… I have just been reassessed for my independent contractors. I've been told I must pay the government the CPP and EI deductions I didn't make over the last three years.”  To make matters worse, one of the contractors injured himself horribly in an accident and WCB says am not covered because I didn't [...]

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