Audit, Compliance and Risk Blog

Employment Contracts and Employee Termination Rights

Posted by Jon Elliott on Tue, Nov 27, 2018

The Canada Labour Code and provincial employment standards acts generally specify a minimum notice period before such terminations (the “statutory notice period”), and generally allow the employer to pay compensation to the employee instead of giving the employee notice. (e.g., CLC ss. 54-67) This compensation is usually called “severance pay”; it replaces advance notice of termination. In general, the severance pay must equal the salary and benefits that the employee would have earned if permitted to work until the end of the notice period. Courts interpret and defend these prohibitions against “contracting out” termination benefits.

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Tags: Business & Legal, Employee Rights, Employer Best Practices, directors & officers, directors, Canadian

Tackling the Gender Pay Gap: Ontario’s Pay Transparency Act, 2018

Posted by Maria Gergin on Tue, Oct 30, 2018

On April 26, 2018, the Ontario government passed the Pay Transparency Act, 2018 (the Act), which created a number of requirements for employers with respect to compensation reporting and disclosure to employees and potential employees, as well as compliance compensation reporting to the government, which the government will then make public.

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Tags: Business & Legal, Employee Rights, Employer Best Practices, directors & officers, directors, Canadian

Facebook, Privacy and Your Business

Posted by Eric Robinson on Thu, Jun 28, 2018

Facebook and its chief executive, Mark Zuckerberg, are being criticized far and wide for the company’s lax privacy practices after it was revealed that the political data firm Cambridge Analytica had used a seemingly innocuous personality test to collect data on 87 million Facebook users, which it combined with data from other sources to develop psychological profiles that were used in support of President Trump’s 2016 campaign. A number of lawsuits have been filed against the site over privacy issues and the Cambridge Analytica incident in particular.

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Tags: Internet, corporate social responsibility, social media, directors & officers, Business & Legal

Are Your Climate Risks “Material”, and If So, Do You Disclose Them?

Posted by Jon Elliott on Thu, May 17, 2018

The Securities and Exchange Commission (SEC) administers reporting requirements for companies listed on national securities exchanges (“listed companies” or “public companies”), under the federal securities laws, including the Securities Act of 1933 and the Securities Exchange Act of 1934. These requirements include detailed specifications for some reporting, such as financial reporting consistent with Generally Accepted Accounting Practices (GAAP). But SEC also administers vaguer reporting standards – including requirements to report any information that might be “material” to investors’ evaluation of a public company. Registered entities must disclose material information, including details or caveats necessary to ensure that the disclosures are not misleading. Materiality is open to wide differences in interpretation, at any given time across companies with different activities and resources, and over time based on developments in markets and the wider world. The Government Accountability Office (GAO) recently issued an evaluation of SEC’s “Commission Guidance Regarding Disclosure Related to Climate Change” (referred to below as the “2010 Guidance”), and subsequent general and company-specific guidance related to this topic. Read More

Tags: SEC, directors & officers, directors, Business & Legal, Corporate Governance

Does Sex Discrimination Include Sexual Orientation – The Second Circuit Changes Sides

Posted by Jon Elliott on Tue, Apr 24, 2018

Because federal anti-discrimination statutes include “sex” discrimination but do not define the term, its interpretation evolves with social and political changes, with policy changes by the Equal Employment Opportunity Commission (EEOC), which administers and enforces Title VII of the Civil Rights Act of 1964 and a variety of subsequent laws, and with court decisions. A major present debate is whether “sex” encompasses “sexual orientation” – which would protect non-heterosexual employees against employment action based on their sexual orientation. On February 26, 2018 the Second Circuit Court of Appeals reversed its own precedent, and decided that homosexual employees are protected.

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Tags: Employee Rights, Employer Best Practices, EEOC, directors & officers, directors, Workplace violence

Ninth Circuit: Salary History Doesn’t Justify Male-Female Pay Disparities

Posted by Jon Elliott on Tue, Apr 17, 2018

On April 9, a majority of the Ninth Circuit Court of Appeals ruled that an employer cannot rely on newly-hired employees’ salary histories to justify paying men more than women for the same work. Although the federal Equal Pay Act of 1963 allows disparities based on factors “other than sex,” the court found that salary histories are sufficiently tainted with sex discrimination to bar such reliance. Since it’s taken over 50 years for an appeals court to reach this conclusion, it’s worth exploring the court’s reasoning.

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Tags: Employee Rights, Employer Best Practices, directors & officers, directors

SEC Expands Public Company Cybersecurity Disclosure Expectations

Posted by Jon Elliott on Tue, Apr 10, 2018

The Securities and Exchange Commission (SEC) has just published Interpretive Guidance to “assist” public companies with evaluation and reporting of their cybersecurity risks. This Guidance expands similar SEC guidance issued in 2011, reflecting the growing importance of the issue and highly-publicized cybersecurity breaches during the intervening years. The following discussion summarizes the new Guidance, and provides context.

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Tags: SEC, Internet, directors & officers, directors, Corporate Governance, Business & Legal

NLRB Eases Restrictions on Employer Policies

Posted by Jon Elliott on Tue, Feb 06, 2018

Most employers promulgate a wide range of employee-related policies and work rules, which some compile in employment manuals. All too frequently, these policies and work rules contain ambiguities that employees try to parse to understand what rules really apply, and why. What if employees interpret – or might reasonably interpret – an ambiguity in a way that appears to restrict employees’ rights to organize themselves? Do these provisions violate the National Labor Relations Act (NLRA)?

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Tags: Employee Rights, Employer Best Practices, directors & officers, directors, NLRB, Business & Legal

A Cautionary Tale for Employers Drafting Discretionary Bonus Plans

Posted by Jennifer M. Fantini on Tue, Jan 23, 2018

In the recent British Columbia Supreme Court decision of Kenny v. Weatherhaven Global Resources Ltd., the plaintiff successfully claimed unpaid bonuses and bonus amounts owed over the contractual notice period of approximately $170,000.

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Tags: Employee Rights, Employer Best Practices, directors & officers, directors, Canadian

For First Time, FTC Goes After Bloggers For Paid Endorsements

Posted by Eric Robinson on Thu, Nov 16, 2017

The Federal Trade Commission’s guidelines for testimonials and endorsements require disclosure of any payment or benefit that endorsers receive for their endorsements.

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Tags: directors, directors & officers, Business & Legal, Internet