Audit, Compliance and Risk Blog

British Columbia Supreme Court Finds Human Rights and Workers Comp Claims are not Mutually Exclusive

Posted by Jon Elliott on Tue, Oct 13, 2020

A variety of laws and regulations each prohibit sexual harassment in workplaces. These include:

· Human rights laws prohibit employers from committing or condoning discrimination, including sex discrimination which includes sexual harassment.

· General labour statutes find that harassment can alter terms of employment and even trigger constructive dismissal.

· Occupational health and safety laws protect workers from workplace hazards, which increasingly including bullying and harassment.

· Workers compensation laws provide an insurance system to compensate workers for occupational injuries and illness.

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Tags: Employee Rights, Discrimination, BC Human Rights Tribunal, Sexual Harassment, BC Human Rights Code

CERB and EI changes: What employers and workers need to know

Posted by BLG’s Labour and Employment Group on Tue, Sep 22, 2020

On August 20, 2020, the federal government announced its transition from the Canada Emergency Response Benefit (CERB) to a simplified Employment Insurance (EI) program to provide income support to those unable to work due to COVID-19.

In addition to simplifying access to EI, the government will introduce three new temporary recovery benefits: the Canada Recovery Sickness Benefit, the Canada Recovery Caregiving Benefit and the Canada Recovery Benefit.

Subject to parliamentary approval, these programs will be effective starting September 27 and available for one year.

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Tags: Business & Legal, Employee Rights, Covid-19, Employment Law, Labour & Employment, Canada Recovery Sickness Benefit, Canada Emergency Response Benefit, Employment Insurance, Canada Recovery Caregiving Benefit

As Americans with Disabilities Act turns 30, it’s a good time to review accommodations

Posted by Jon Elliott on Tue, Sep 01, 2020

It’s been 30 years since President George H.W. Bush signed the Americans with Disabilities Act (ADA) into law. ADA does more than just add “persons with a disability” to the list of groups protected against discrimination by Title VII of the Civil Rights Act of 1964 (based on race, sex, etc.). It is designed not just to protect these individuals’ employment opportunities, but also to ensure their access to public services and accommodation. The ADA Amendments Act of 2008 repudiated several U.S. Supreme Court decisions that had interpreted ADA narrowly, and clarified related issues highlighted by rulemakings and litigation up to that time.


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Tags: Business & Legal, Employee Rights, EEOC, DOJ, ADA, Disability

NLRB Redefines “Joint Employer”

Posted by Jon Elliott on Wed, May 06, 2020

When someone receives occupational direction and/or compensation from more than one entity, who’s the boss? Sometimes it’s obviously one or the other, sometimes it’s not clear which one is, and sometimes the answer may be “both.” These unclear situations are fairly common; consider franchise operations where the franchisor exerts some controls over how the franchisee does business, workplaces where “temp agencies” supply workers who receive at least some directions from the host but get paid by the agency, and worksites where a prime contractor integrates services by subcontractors and their employees. Identifying the boss(es) has important implications, not just for who writes a paycheck but for who is subject to legal responsibilities and prohibitions.

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

US Employers: It’s Time For New I-9 Forms

Posted by Jon Elliott on Wed, Apr 01, 2020

North American employers are required to verify new employees’ identities and eligibility to work in the country. In the United States, employers’ inquiries must confirm eligibility to work in the U.S. when an employee is actually being hired (not just applying), using Form I-9 (Employment Eligibility Verification), which is issued and administered by the U.S. Citizenship and Immigration Services (USCIS) unit of the federal Department of Homeland Security (DHS). USCIS has revised the I-9 form – the new form is dated October 21, 2019 but was only formally published on January 31, 2020. The new version includes minor changes from the preceding one (which was dated July 17, 2017 and set to expire August 31, 2019 but subject to extended viability by USCIS pending approval of the newest version).

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Tags: Business & Legal, Employer Best Practices, Health & Safety, Employee Rights

Appeals Court Affirms OSHA’s Approach to Workplace Air Testing and Respiratory Protection

Posted by Jon Elliott on Tue, Feb 11, 2020

The Occupational Safety and Health Administration (OSHA) requires employers to evaluate whether air quality in their workplaces requires respiratory protection for workers, and to establish comprehensive evaluation and respiratory protection programs where necessary. (I wrote about recent revisions here). Late last year, a federal appeals court upheld OSHA’s approaches to workplace testing requirements under the Respiratory Protection Standard (Standard) (Secretary of Labor v. Seward Ship's Drydock, Inc.).

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Tags: Business & Legal, Employer Best Practices, Health & Safety, OSHA, Employee Rights

Protecting Workers During Holiday Sales Events

Posted by Jon Elliott on Tue, Nov 26, 2019

As we approach the winter holidays, retailers everywhere are planning their biggest cycles of annual sales. One doesn’t have to be a grinch to notice that these events can introduce additional hazards for retail employees – and for others who may be shopping. It’s therefore a good time to review guidance for managing these hazards, which was promulgated by the Occupational Safety and Health Administration (OSHA) in 2012. This guidance followed a national review after a highly-publicized incident during which a worker at a Long Island Walmart was trampled to death by a crowd mobbing the store’s Black Friday (day after Thanksgiving) sales event in 2008. OSHA determined that Walmart should have anticipated crowd-related hazards, and fined the company for a violation of the Employer’s General Duty Clause (I wrote about this here)

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Tags: Business & Legal, Employer Best Practices, Health & Safety, OSHA, Employee Rights, EHS, Workplace violence

OSHA Revises Its Inspection Priority Weighting System

Posted by Jon Elliott on Tue, Nov 19, 2019

The Occupational Safety and Health Administration (OSHA) does not routinely inspect all employers, but instead allocates its inspector resources based on the agency’s evolving compliance and enforcement priorities. These priorities include a complex set of national/state/local priorities, such as “national emphasis programs (NEPs)” for process chemical safety or machine guarding, industry focus projects on primary metals industries, and site-specific responses to reported injuries or worker complaints. To meld and rationalize these overlapping priorities, OSHA headquarters periodically establishes weighting programs under which local offices tabulate inspection statistics to demonstrate inspection productivity by achieving higher overall scores. Effective October 1, 2019, OSHA has introduced a revised inspection weighting system, intended to motivate local OSHA offices to revise their inspection priorities.

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Tags: Business & Legal, Employer Best Practices, Health & Safety, OSHA, Employee Rights, PSMS

OSHA Revises Respiratory Protection Requirements

Posted by Jon Elliott on Tue, Nov 05, 2019

The Occupational Safety and Health Administration (OSHA) requires employers to evaluate whether air quality in their workplaces requires respiratory protection for workers, and to establish comprehensive evaluation and respiratory protection programs where necessary. In September, OSHA issued minor revisions to its respiratory protection requirements provisions for general industry (29 CFR 1910.134), adding two new quantitative fit testing protocols. Because of these changes,  now is a good time for employers to review requirements and compliance programs.

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Tags: Employer Best Practices, Health & Safety, OSHA, Employee Rights, Environmental risks, EHS

Reversed on Appeal: Workplace Harassment Isn’t a Tort In Ontario After All

Posted by Jon Elliott on Tue, Sep 03, 2019

Although an ever-expanding range of laws prohibit workplace harassment, the Court of Appeal for Ontario has now ruled that harassment is not a free-standing common law tort in that province. This ruling reverses a trial court ruling by the by the provincial Superior Court of Justice that shocked employment law in 2017. This ruling returns workplace harassment to the realm of statutory and regulatory requirements and prohibitions, which certainly isn’t unambiguous, but at least offers more structured frames of reference. The case is Merrifield v. Canada (Attorney General), and it litigates a complaint between a member of the Royal Canadian Mounted Police (RCMP) and his employers.

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Tags: Business & Legal, Employer Best Practices, Employee Rights, Workplace violence, Canadian