Even with an individual’s consent for a background check, the handling of personal information must be reasonable and aligned with the intended purpose for its collection, use, or disclosure. Employers must provide a justifiable reason for requesting employees to consent to background checks, whether they involve criminal records or other aspects.

In British Columbia and Quebec, criminal background checks and related decisions must directly pertain to the specific requirements of the staff position in question. Alberta, on the other hand, currently imposes no restrictions against criminal background checks. Other provinces in Canada fall somewhere between these extremes.

As a general practice, employers should refrain from conducting record checks until a conditional offer of employment has been extended. Even then, such checks should only be carried out with the employee’s consent and, in many cases, their active participation.

If an employer intends to assess an employee’s suitability for a position through a probationary period, it is advisable to explicitly outline this arrangement in a written employment contract.

In many jurisdictions, a probationary period of up to three months is generally acceptable. During this probationary period, an employer, in most provinces, has the flexibility to terminate an employee without the obligation to provide statutory notice of termination or payment in lieu.

Once an individual completes three months of employment, the minimum notice period requirements for termination become applicable. Any agreement specifying a probationary period exceeding three months should expressly state that the employee will receive statutory entitlements upon termination.

The majority of provinces have legislation regulating the maximum working hours for employees, establishing limits on both daily and weekly work hours. Typically, these limits are set at eight hours per day and 40 hours per week.

Exceptions allowing the surpassing of these maximum hours may exist under certain circumstances, such as when overtime is compensated, with the agreement of the employee, or in emergency situations. In specific provinces, provisions permit employers to implement alternative work arrangements, such as compressed four-day work weeks or continental shifts with 12-hour work days, provided there is a justifiable reason. Additionally, certain professions (e.g. doctors) and roles (e.g. managers and supervisors) might be exempt from these minimum standards and overtime regulations.

Provincial variations exist in overtime regulations, with some provinces enforcing daily overtime thresholds (typically set at eight hours) and others employing weekly thresholds (often ranging from 40 to 44 hours per week).

Overtime compensation is generally calculated at 1.5 times the regular rate. In certain jurisdictions, this rate may increase to two times the regular rate after surpassing a specified threshold.

Both salaried and hourly employees are entitled to overtime benefits in Canada. However, many jurisdictions explicitly exempt certain employees from this entitlement, including managers, supervisors, and specific professional categories.

Mandatory records must be maintained to document daily hours worked, unless the employee falls under the exclusions mentioned earlier. In cases where hours are averaged, records should encompass the posting of the 30-day notice. Additionally, they must specify the periods of averaging, the commencement date of averaging, particulars of any reductions in hours, and the count of overtime hours compensated, if applicable.

A written health and safety policy, containing specified details, is typically mandated by most provinces, determined by factors such as the number of employees or the extent of the employer’s operations. Some jurisdictions may necessitate specific training for employees to comply with health and safety standards.

Each region has enacted its health and safety legislation, providing comprehensive authority to investigate and enforce safe workplace practices.

While bonuses are not obligatory in Canada, many employers opt to provide them as a means to attract and retain employees.

For employers, ensuring the clarity of any bonus policy is crucial. The use of explicit language and clear examples in defining bonus criteria, payment dates, and entitlement is key to limiting liability, especially in cases of termination. The policy should also explicitly address scenarios like resignation, retirement, or various forms of termination. Merely labeling a bonus as “discretionary” in the employment contract may not necessarily shield an employer from claims by terminated employees seeking bonus amounts.

Grounds

In Canada, termination for cause without notice or pay in lieu is allowed, but establishing just cause is challenging due to a high standard. Generally, an employee can be dismissed without notice if their conduct is incompatible with the fundamental terms of the employment contract, involving gross and willful misconduct, willful neglect of duty, fraud, theft, or repeated insubordination.

Termination without cause is generally permitted across most jurisdictions. However, proper notice of termination or payment in lieu must be provided.

Employees entitled to termination protection

In Canada, employees generally cannot be terminated by employers without just cause, proper notice, or payment in lieu, and severance pay if applicable. This is mandated by statute, common law, and civil law. Reinstatement rights are typically limited to unionized employees, those terminated against human rights legislation, or those terminated for exercising statutory rights related to working conditions or employment standards, including pregnancy leave.

Federally regulated employers, operating within sectors under federal jurisdiction, may not terminate non-managerial employees with at least one year of service without sufficient reason, such as just cause or a discontinuance of job function.

Quebec and Nova Scotia offer additional protections for employees achieving tenure, making termination challenging except for legitimate reasons like position elimination or lack of work.

Notice tendered by Employer

The required minimum notice of termination mandated by statute varies by province and is often determined by an employee’s length of service. Typically limited to eight weeks for individual terminations, a written employment contract, if enforceable, may specify only minimum statutory entitlements. This can counter the legal presumption of reasonable notice under common law.

However, statutory entitlements represent the minimum, and unless explicitly agreed otherwise, common law presumes additional reasonable notice. The length of this notice, adjudicated based on factors like employment character, length of service, employee age, and job availability, can extend from two or three months to as long as 24 months.

In Quebec, similar entitlements exist, generally immune to contractual limitations at the start of the employment relationship.

Notice tendered by Employee

Under common law, employees are required to give a “reasonable amount” of notice, with the specific duration dependent on individual circumstances. However, this common law obligation can be replaced by parties if, at the time of hiring, the employment contract specifies a particular notice period that an employee must provide upon resigning.

Payment in Lieu

Payment in lieu of notice is allowable, and the practice of “garden leave” is increasingly prevalent. With careful consideration and strategic planning, employers can often implement this arrangement effectively for a reasonable duration.

Ontario stands as the sole Canadian jurisdiction offering severance pay to employees, a separate provision from notice of termination. Eligibility in Ontario, as well as under federal jurisdiction, applies to employees with five or more years of service. In Ontario, the calculation entails one week of severance pay for each year of service, with partial years prorated to a maximum of 26 weeks. In the federal jurisdiction, eligible employees receive the higher of two days’ wages per year of service or five days’ wages.

Non-compete clause

Non-compete clauses are generally unenforceable for regular employees, especially when a non-solicitation provision would suffice to safeguard the employer. In Ontario, it is prohibited for employers to incorporate non-compete agreements into employment contracts or other agreements with employees. In other provinces, such clauses must adhere to criteria of reasonableness in terms of geographical and temporal scope. In certain jurisdictions, they may also need to specify the type of restricted employment and job functions. Clear and unambiguous language is essential, and clauses regarding non-interference with business relationships may be more likely to be enforced if they meet these criteria.

Customer non-solicit clause

A clause restricting solicitation of customers is generally more enforceable than many non-competition agreements. Non-solicitation agreements still need to maintain reasonableness in both geographical and temporal aspects, and the language used should be clear and unambiguous.

Employee non-solicits

Once more, these provisions are likely to be upheld if they are reasonable, clear, and unambiguous.

In Canada, union participation in the private sector is low and diminishing. Unions maintain substantial representation in the public sector, particularly in traditionally unionized fields like automotive, construction, and transportation. Many businesses operate without unions or worker representation, and there are no works councils. Collective bargaining agreements (CBAs) at the industry level are infrequent, except for specific industries in Quebec, which stands as a notable exception.

A statement of wages, commonly known as a pay stub, must be provided on or before the day of the associated salary payment. This pay stub is required to include:

• the employees’ rate of pay
• the pay period
• wages for that period before and after any deductions (must detail how that was calculated)
• the amount and reason for any deductions

Employment standards legislation provides employees with a statutory entitlement to vacation time and vacation pay. The amounts and related requirements vary by jurisdiction, but in all provinces, after one year of employment, employees are entitled to at least two weeks of vacation time per year and vacation pay of 4%, which begins to accrue immediately upon the commencement of employment. In many provinces, this entitlement will increase with an employee’s length of service, typically reaching 3 weeks and 6% vacation pay after 5 years of service.

Many employers choose to offer a greater vacation entitlement than is required and allow vacation to be taken in the first year of employment as the vacation time accrues.

Carry over rules

In most jurisdictions, the carryover of annual leave is allowed, meaning that a “use it or lose it” policy is not permitted in Canada.

Sick leave entitlements and employers’ obligations to pay for these absences differ by province in Canada. In all provinces, employees have the statutorily protected right to a specific number of days of unpaid sick leave. Some employers, even where not mandated by law, opt to offer paid sick leave to their employees.

Certain provinces allow for a designated number of statutorily protected but unpaid days to address responsibilities related to caring for family members.

Crucially, employers are obligated to accommodate employees based on factors such as disability and family status. Consequently, employers may need to authorize an employee’s absence (without pay) for a period exceeding the mandated statutory leave days.

Under the Employment Standards Act, there is no statutory provision for paid bereavement leave for employees in Canada (except in Québec). In most cases, employees have the right to take a minimum of 2 days of unpaid job-protected leave per calendar year for the death of immediate family members. Job protection is ensured for employees who take such leave. Many employers may choose to provide payment for this leave and might extend the allowable number of days through an agreement in the employment contract or an emergency leave policy.

Immediate family members, as defined, include an employee’s siblings, spouse, their or their spouse’s parents, step-parents, or foster parents, their or their spouse’s grandparents or step-grandparents, their or their spouse’s child, step-child, or foster child, their or their spouse’s grandchildren or step-grandchildren, their child’s spouse, or a dependent relative.

Public holidays in Canada are commonly referred to as statutory holidays, and they are regulated at the federal, provincial, and territorial levels. There are five nationwide (federal) statutory holidays, along with six additional holidays for federal employees. Additionally, each province and territory observes several holidays in addition to the nationwide days.

In Canada, most workers are entitled to take the day off on a public holiday with regular pay. Some employers may require employees to work on these days. In such cases, the employee must either receive a day off in lieu of the holiday or be compensated at a premium rate. This premium rate typically amounts to 1.5 times or twice the regular pay for the time worked on that day, in addition to the holiday pay.