Growing a business takes people. At some point, many start-ups and small businesses hire employees and become employers. Every Newfoundland and Labrador employer should know these five employment law basics.
Labour standards Every NL employer should read the NL Labour Standards Act and relevant Regulations and keep them handy. The legislation applies to most non-unionized employees and sets minimum standards for certain employment conditions, like wages, hours of work, public holidays, vacation time and pay, and termination notice. It also mandates certain employee leave entitlements, such as parental leave, sick leave, and family responsibility leave. The NL Labour Standards Division enforces the legislation, investigates potential violations, provides information to employers and employees, and resolves employee complaints about violations. An employer can call the Division with questions, but remember: its response isn’t legal advice nor a defence to a complaint or employment lawsuit. Furthermore, the legislation only sets the minimum requirements. An employee could be entitled to more under the terms of an employment contract or at “common law” (judge-made law). For example, the legislation establishes the minimum termination notice to which an employee is entitled, but common law generally presumes an employee is entitled to “reasonable notice,” an individual assessment that’s often greater than the legislation’s minimum.
Written employment contracts Every employer has an employment contract with every employee, even when there’s “nothing in writing”; often, the issue is ascertaining its terms. A well-drafted and implemented written employment contract can be instrumental in avoiding and resolving disputes during or at the end of the employment relationship, saving the employer time and money. Since courts carefully scrutinize employment contracts and interpret any ambiguity in an employee’s favour, it’s good practice to have legal counsel draft them. It’s also important the terms be set at the time of hiring. An employer can’t unilaterally impose new employment conditions during the employment relationship that fundamentally change the employment relationship without giving sufficient prior notice or consideration (something of value in exchange). A standard form employment agreement is useful, but the employer should always review it and, if required, customize it to the circumstances.
Human Rights Act The NL Human Rights Act prohibits employers from discriminating in employment (including in hiring, promoting and terminating) based on 19 enumerated grounds, including race, religion, family status, disability, sex, sexual orientation, age, and criminal conviction unrelated to employment. It also imposes on employers a “duty to accommodate” an employee’s needs related to any such protected ground: a legal duty to take steps to ensure a workplace condition doesn’t have a discriminatory effect on an employee, if it can do so without “undue hardship." Undue hardship is a high standard that depends on several factors, including financial cost, disruption of a collective agreement, problems of morale of other employees, interchangeability of workforce and facilities, the size of the employer’s operation, and/or safety concerns.
Workplace health and safety The NL Occupational Health and Safety Act imposes a general duty on employers to provide a safe workplace for all employees—including a work environment free from violence—and gives employees the right to refuse dangerous work. In addition, employers must warn employees about hazards, provide adequate training, and ensure employees comply with the legislation.
Record keeping The issue is often not what was done by the employer, but what it can prove was done. An employer’s records are key to its ability to prove what it did. It’s critical that employers document everything, including training initiatives, policy reviews, performance evaluations, and discipline meetings. In addition, the NL Labour Standards Act requires employers to make and keep certain records for four years from the date of the last entry in the record respecting the employee, and to make them available to the Division.
This article is information only; it is not legal advice. McInnes Cooper excludes all liability for anything contained in or any use of this article. © McInnes Cooper, 2018. All rights reserved.
Stephanie Sheppard, is a leading Labour & Employment lawyer with McInnes Cooper in St. John’s. She provides advice on the full spectrum of labour and employment matters, from collective agreement interpretation, labour relations, employee discipline, employment contracts, workers compensation appeals, and human rights issues. A significant aspect of Stephanie’s practice involves managing grievances and presenting labour arbitrations for special projects, particularly for employers in the energy and natural resources and construction industries. Active in her community and profession, Stephanie is a member of NLOWE and of McInnes Cooper’s Promotion of Women Committee. Contact Stephanie at709.724.8235 or