Hire in Canada

Even when an individual has consented to a background check, the handling of personal information must be reasonable under the circumstances given the purpose for which it is being collected, used or disclosed. Employers must therefore have some justification for requesting employees to consent to a background check, criminal or otherwise.

British Columbia and Quebec require any criminal background check, and any decision relating thereto, to be directly relevant to the particular staff position at issue. At the other end of the spectrum, Alberta currently maintains no restriction against criminal background checks at all. Other provinces in Canada are positioned somewhere between these two extremes.

Employers generally should not conduct record checks until a conditional offer of employment has been made. Then it should be conducted only with employee’s consent and, often, participation).

Most provinces have legislation that governs the maximum hours that employees may work. Such legislation sets parameters for the maximum daily and weekly figures. This is typically eight hours per day and 40 hours per week.

In certain situations, these maximum hours of work may be exceeded, such as where overtime is paid, where the employee agrees or where there is an emergency situation. In some provinces, specific provisions also permit employers to implement “compressed” four-day work weeks or “continental shifts” with 12-hour work-days. The requirement for such must be justified. Additionally, some professions (e.g. doctors) and certain roles (e.g. managers and supervisors) may be exempt from such minimum standards and overtime rules.

Most provinces require a written health and safety policy with certain details. This requirement is based on the number of employees or the scope of the employer’s operations. Specific training for employees on health and safety standards may also be a requirement.

Each jurisdiction has implemented its own health and safety legislation. Generally, they all have broad and sweeping powers to investigate and ensure safe workplaces.

Ontario is the only Canadian jurisdiction that provides employees with severance pay. This is distinct from payment for notice of termination. Eligible employees in Ontario and employees under the federal jurisdiction are eligible for severance pay. In Ontario, eligible employees are those with five or more years of service. They will receive one week for each year of service. Partial years are pro-rated to a maximum of 26 weeks. In the federal jurisdiction, eligible employees receive the greater of two days’ wages per year of service or five days’ wages.

Non-compete clause

Non-compete clauses will typically not be enforceable for regular employees and particularly not where a non-solicitation provision would have been sufficient to protect the employer. In Ontario, employers are prohibited from entering into employment contracts or other agreements with an employee that include a non-compete agreement. In other provinces, any such clause must be reasonable in scope geographically and temporally, and in some jurisdictions, must also specify the type of restricted employment and the restricted job functions. The language should be clear and unambiguous. A requirement not to interfere with business relationships might also be more likely to be enforced if it is reasonable, clear and unambiguous.

Customer non-solicit clause

A customer non-solicit clause is more likely to be enforced than most non-competition agreements. Non-solicitation agreements must still be reasonable in scope, both geographically and temporally. The language must be clear and unambiguous.

Employee non-solicits

Again, these are likely to be enforced if reasonable, clear and unambiguous.

• Employment standards legislation provides employees with a statutory entitlement to vacation time and vacation pay. 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, for example typically 3 weeks and 6% vacation pay after 5 years of service.
• Many employers provide 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 carry over of annual leave is allowed. Effectively, a “use or lose” policy is not permitted in Canada.

Entitlements to sick leave – and employers’ obligations to pay for these absences – vary by province. Employees in all provinces will have the statutorily protected right to a certain number of days of unpaid sick leave. Many employers choose to provide paid sick leave where these entitlements do not exist.

Some provinces provide for a certain number of statutorily protected but unpaid days to deal with responsibilities in relation to caring for family members.

Importantly, employers also have a duty to accommodate an employee on the basis of any disability and family status, etc. Therefore, an employer may be required to permit an employee to be absent (without pay) for more than the mandated statutory leave days.

Under the Employment Standards Act, there is no statutory entitlement for employees to receive paid bereavement leave in Canada (except in Québec). Under most circumstances, employees are entitled the right to take at least 2 days of unpaid job-protected leave per calendar year for the death of immediate family members. The employees’ job is protected in the event of them taking such leave. Many employers will both pay for this leave and indeed extend the number of days allowed via agreement in the employment contract or in an emergency leave policy.

The definition of immediate family members is: an employees’ 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.

Maternity and parental leave entitlements differ by province. In general, pregnant employees have the right to take maternity or pregnancy leave of up to 17, 18 or 19 weeks depending on the province. This leave is unpaid. In Quebec, birth fathers are also eligible for up to five weeks of unpaid paternity leave.

Additionally, in most jurisdictions, new parents (as well as adoptive parents) have the right to unpaid parental leave of between 67 and 78 weeks when a child is born or comes into their care for the first time. Parental leave does not have to begin immediately after the birth of the child or when an adopted child first comes into the care of the parents. Timeframes and rules for this leave vary in different jurisdictions. However, in most jurisdictions, birth mothers who have taken pregnancy leave must begin parental leave immediately following the expiration of the pregnancy leave.

An employer cannot, in any way, penalize an employee that is eligible or will be eligible to take pregnancy or parental leave. They also cannot penalize this employee for taking such leave. Generally, benefits must be maintained. In nearly all cases, employees have the right to return to their job following the leave with their seniority and length of service remaining intact.

Because the employment insurance benefit only covers a fraction of the employee’s regular income, many employers will offer a scheme to “top up” benefits.