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Monday, August 13, 2012

Probationary (Notice) Periods

Employers who terminate employees and/or Managers may be liable for pay-in-lieu of notice costs, unless they are aware of the legal changes in Employment Standards affecting probationary periods.

Question
How long is a probationary (notice) period? Are Managers excluded from this?

Comment:
30 days. Managers are not excluded, as they are employees as well.

In Manitoba, probationary (notice) periods have been 30 days for many years (This was not well known, as prior to April 1, 2007, longer probation periods, such as three months could be agreed upon, if it was part of a signed offer of employment. That provision has been eliminated and 30 days is the law (except where it is longer in a collective agreement. E.g. negotiated for the employee by a bargaining agent).

Recommendation:
Employers should plan for success with new employees and minimize such issues from arising. Ensure new employees receive effective coaching/training to learn the job, and track their progress. In the first month, hold short, weekly progress consultations to ensure they are on track to becoming productive. The Manager will gain a better assessment of the employee, can better coach for success, and the employee more effectively learns what is required. If termination is unavoidable, at least you know early.

Posted by Dan Furlan at 12:00 AM 0 Comments

Monday, August 13, 2012

Management Overtime - Are Managers eligible for overtime?

Employers who are unaware of updated regulations on Management overtime, may risk both extra costs and employee backlash if their employment practices are not up to date.

Question:
Are Managers eligible for overtime?

Comment:
Managers are not normally eligible for overtime, as they are considered:

a) To have control over the hours they work, and,
b) May be expected to work extra hours to ensure proper operation of the enterprise, but are normally compensated at a higher rate to make up for the extra time worked. In practical terms, however, Employers need to recognize the need for control and compensation if Management employees work what may be considered excessive hours.

Recommendation:
An increasingly common practice, is to confirm in Management letters of offer, that,

a)
The expectation that the job may normally involve 40-50 hours/week, and,
b) That, if over 50 hours is worked in a week, the individual is entitled to overtime (1 1/2 times regular pay) to be taken in either pay or equivalent time off.

NOTE 1: This confirms the previous common practice of granting extra time off due to extensive hours worked (e.g. on projects or in special circumstances) As with all overtime, it should be approved in advance, or at least agreed to shortly after being worked, (e.g. following an emergency situation), to prevent inappropriate claims of overtime from unapproved extra time worked, three months ago, etc.

NOTE 2: If you have an individual working over 50 hours/week, even willingly, with no recompense, you run the risk of burning out or de-motivating that person, which may be even more detrimental to the business.


Posted by Dan Furlan at 12:00 AM 0 Comments

Monday, August 13, 2012

Management Overtime - What Defines a Manager?

Employers who do not clearly distinguish the role and duties of Managers, may face expensive disputes over expectations of overtime on one hand, or, the actions of a junior person, referred to as a “Manager”, but in actual fact, an employee without hiring And firing responsibilities, for example.

Question:
What defines a Manager?

Comment:
The term Manager* is being more closely and narrowly defined.

Managers are generally those who have; control over their own working hours, the right to hire, fire, determine wage increases, conduct performance appraisals, impose discipline and generally don't do the same work as their staff.

This raises concerns over, Supervisory jobs, especially, "working Supervisors", who do some similar work with their employees. How much similar is it, 5%, 15%, 25%, 50%? What about the Supervisor who pitches in from time to time?

*For example the title Manager is used in some cases, where the employee has no staff, but was Manager of a function.

Recommendation:
Be careful who you call a Manager, and, more importantly, prevent the overtime issue from arising by ensuring such employees are aware of your policies and are properly compensated.

Posted by Dan Furlan at 12:00 AM 0 Comments

Monday, August 13, 2012

Payment in Lieu of Notice - What factors are taken into consideration when determining the amount of severance a dismissed employee may be entitled to?

Employers who are unaware of updated Employment Standards Regulations, may face significant additional costs when terminating employees, even for cause.

Question:
What factors are taken into consideration when determining the amount of severance a dismissed employee may be entitled to?

Comment:
Employers may terminate employment but must provide reasonable notice, or pay in lieu of that notice. Factors to calculate how much notice is required include: length of service (guideline listed below), the nature of the employment, age of employee, and the likelihood of re-employment. In essence, what is the likelihood of the person being re-employed in similar work at a similar level?

Many employers are utilizing the services of outplacement consultant firms to mitigate their financial obligation and assist the employee in moving on. These firms provide varying levels of service packages including counseling, resume preparation, career assessments, job search & networking techniques, office space and other services.

Recommendation:
Keep in mind the minimum* notice or pay in lieu of notice levels in law, are considered actual minimums. If the termination was less than a clear cut case of incompetence or willful misbehavior, a higher payment is normally expected. The individual factors surrounding the layoff, termination or severance, however, may be affected by the employees' behavior and performance.

Take all feasible action possible to mitigate the impact on the employee. In most cases the cost is minimal. The savings in time and trouble can be significant, and in some cases, good will goes a long way.

*Legal minimums (Manitoba)

  • 1 weeks’ pay for service more than 30 days, but less than a year
  • 2 weeks for 1-3 years,
  • 4 weeks for over 3 less than 5 years,
  • 6 weeks for over 5 & less than 10 years, and,
  • 8 weeks for over ten years of service.

These are minimum requirements, as many employers have guidelines that go well beyond these levels.
Posted by Dan Furlan at 12:00 AM 0 Comments

Monday, August 13, 2012

Reasonable Accommodation - How far does an employer have to go in reasonable accommodation?

Employers who are unaware of increased expectations of all employers to demonstrate reasonable effort in accommodating candidates or employees, may face lengthy and expensive disputes over what is a reasonable accommodation.

Question:
How far does an employer have to go in reasonable accommodation?

Comment:
Each case is determined on its own merits as all situations are different.

All parties must accommodate including the employer, the employee and the union if there is one. Accommodation is expected up to the point of being unreasonable, such as, -excessive cost or disruption of the workplace or an existing collective agreement.

Larger employers are expected to be more accommodating than smaller ones who have less flexibility due to size.

The Employer,

  • Should have a policy on reasonable accommodation,
  • Should be able to demonstrate willingness and a reasonable efforts to make accommodation,
  • May need to show that viable alternatives have been actively considered and either accommodations have been made, or not found feasible.
In summary, the employer needs to prove that they made a reasonable effort to accommodate and treat the person fairly.

The Employee

  • Must make reasonable efforts to accommodate, as well,
  • Must take action to help their own situation e.g. access appropriate available resources to aid in accommodation.
The Union,
Obligations are similar to the Employers'.
Recommendation:
This is an area where the Human Rights Commission is establishing higher expectations on employers to accommodate, and be able to prove what they are doing. Due to the complexity and variable nature of these situations, get qualified assistance in dealing with them.

Step one is to have a policy and some type of plan as to how you would approach such situations to start with.

A second step would be to get expert advice from social service employment agencies that are familiar with practical accommodations employers have successfully made.
Posted by Dan Furlan at 12:00 AM 0 Comments

Monday, August 13, 2012

Employment References

Question
What are the chances of getting sued for giving a poor reference?

Many employers are leery of giving out employment references for former employees.
Comment:
Fairly low unless you slander someone. A recent research paper indicated there is an extremely low number of such lawsuits in North America. Furthermore, it is believed that, in many of those cases, the situation involved malicious intent, where the employer was accused of slander or attempting to blacken the former employees’ reputation, thus preventing them from earning a living.
Recommendation:
You can provide references, but stream them through one person for consistency and control.

Ask reference callers if the person has given approval for a reference check, and if the reference is to be confidential. Ideally you can use performance related documents (appraisals, commendations, disciplinary records, etc) as sources, but few organizations document those consistently. (We can show you how!)

If a departing/departed employee asks for references to be given, it may be a good idea to inform them as to what will be said. Where possible, you want to be positive, but don’t want to lie.

Provide honest, fact based comments, that, even if the employee did hear about them, would be hard for them to deny. If you do this, it is unlikely that most former employees will invest a large amount of money to sue you. It on the other hand, their departure from the organization was unpleasant, be more careful.

Posted by Dan Furlan at 12:00 AM 0 Comments

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