What the heck is employment law? What’s the difference between an employment lawyer and a labour lawyer? When should I call a lawyer? Jill and Dana kick off All Worked Up with employment law basic, “The Big 3”, and unavoidable acronyms.
Episode transcript below:
Intro: This podcast is produced by Nelligan Law.
Dana DuPerron: Welcome to All Worked Up, the podcast where two employment lawyers break down real-life workplace issues that affect real people. I’m Dana DuPerron –
Jill Lewis: I’m Jill Lewis and we’re Senior Associates at Nelligan Law and we’re super excited to bring you this podcast aimed at making employment issues interesting, accessible for employees and employers.
Dana DuPerron: OK, so welcome to All Worked Up. I’m Dana DuPerron –
Jill Lewis: I’m Jill Lewis –
Dana DuPerron: – and we’re employment lawyers at Nelligan Law. Today, this is our first episode, we’re really excited.
Jill Lewis: I can’t believe we’re here.
Dana DuPerron: I know, I know. So we’re doing employment law 101, which as I think I’ve said and I know you’ve said it too when we first meet with clients, we get their background info and then from there sort of tell them, “OK, sit tight. Here’s employment law 101. We’re going to go through sort of everything you need to know in a nutshell.”
Jill Lewis: Yeah. You’re going to get like a crash course on this and there’s going to be a pop quiz at the end so grab your notepad and [laughs] hopefully we’ll be able to explain this in laymen’s terms. Maybe we’ll start with what employment lawyers do.
Dana DuPerron: Yeah. No, so we do all kinds of different things, anything to do with the workplace we do. So we help employers draft contracts. We help employees review severance packages or contracts as they’re starting a new job. We deal with workplace harassment and bullying. People getting sick in the workplace and applying for short-term disability, which we may call STD [laughs] just as a heads up.
Jill Lewis: Just a warning, yeah.
Dana DuPerron: And long-term disability, dealing with those issues.
Jill Lewis: And I think what’s important to remember is we’re not labour lawyers, we’re employment lawyers. Labour law refers to unions. So if you’re part of a union, we’re glad that you’re listening but we’re not going to be that relevant to you [laughs], go talk to your union rep.
Dana DuPerron: The collective agreement is God there.
Jill Lewis: Exactly, exactly. So, unfortunately, we can’t really get involved there. So we are here to help everybody else, the people who are not part of unions and do not have a collective agreement that’s what we’re here for. So when you come in to see us, we go through and explain how the employment relationship is regulated. So there’s not just one set, group of rules, right. A lot of times people come in and they think, “This is what the Employment Standards Act says so I think that’s what I’m entitled to.” The employment relationship in Ontario is governed by what we’re going to call the big three, Employment Standards Act –
Dana DuPerron: The ESA.
Jill Lewis: – the ESA.
Dana DuPerron: There’s another one, there’s another acronym that we will not be able to avoid using.
Jill Lewis: Yeah, we have to, the ESA. So the ESA is a piece of legislation. It’s written down for like 20 years, it gets modified and changed, you know, by the government and it provides basic bare minimums. And I like emphasize that because that means that you could be entitled to more.
Dana DuPerron: Right.
Jill Lewis: This is just what your employer has to provide you, the vacation that they have to provide you, the termination pay that they have to provide you, protection on mat leave. Things like that, those are bare minimums.
Dana DuPerron: And on the flip side for employers you could have greater obligations than what’s set out in the ESA. So that’s important to know too because I’ve spoken to people who have said like, “I looked this up in the ESA, I did what I had to do. I even called the Ministry of Labour and they didn’t say there was anything more” and there can be more.
Jill Lewis: Yeah. There can be, yeah. So yeah, we’ve got the ESA and then we’ve got the common law, boom-boom-boom. So that’s been around for hundreds of years. That’s your judge-made law, so it is based on precedents and decisions that have been made before you.
Dana DuPerron: Yeah, any court decision.
Jill Lewis: Any court decision. Yeah, exactly. So if you want to get up and argue that you’re entitled to 24 months, you –
Dana DuPerron: Notice like pay if you’re fired, yeah.
Jill Lewis: Yeah, thank you. Thank you, sorry. So 24 months notice of pay upon termination, you have to be able to show that a judge or prior judge has made a similar decision for somebody in your position and there is so much more though that goes along with that, right. We’ve got mitigation and we’re going to get into all of this. It’s not that easy because that’s another one people will come in and say like, “I’m entitled to one month per year,” well yeah –
Dana DuPerron: Yeah, we’ll see.
Jill Lewis: You know, or, “I saw that calculator, I saw that employment notice calculator online.” Yeah, there’s a lot more to it and we’re going to really break that down at a later episode.
Dana DuPerron: Unpack each thing one piece at a time. So we’ve got the ESA, the judge made common law, those decisions, and we’ve got your employment contract which sets out the specific entitlements that you have in each individual case. Those are important because they’ll set the terms of the relationship throughout the relationship, and it also sets the terms sometimes at the end of the relationship. So if there’s anything you can’t do after you leave like solicit clients or compete whether or not that’s enforceable, we’ll talk about that.
Jill Lewis: We’ll definitely talk about that one.
Dana DuPerron: And what you get when your employment is terminated, again whether or not that’s enforceable we’ll talk about that.
Jill Lewis: Yeah.
Dana DuPerron: But those are the big three that we often look at. I mean that covers kind of all aspects. Mostly when we’re talking about like a dismissal, we’re looking at entitlements or those kinds of things, what you get when you’re leaving. There are other pieces of legislation that we look at too, so other laws that are written down by the government. If you were hurt in the workplace does the Workplace Safety and Insurance Act apply or do you have to be making claims to the WSIB. If you’ve been the subject of discrimination or harassment, are you covered by or have there been breaches of the Occupational and Safety Act –
Jill Lewis: Yeah.
Dana DuPerron: – we’ll talk about that in another episode. Or yeah, for discrimination, the Human Rights Code, we’ll talk about that.
Jill Lewis: We’ll talk about that one.
Dana DuPerron: But those are the big – the points that we want to convey in this first episode are those are the –
Jill Lewis: Yeah, the big three and it’s a lot, you know.
Dana DuPerron: It’s a ton.
Jill Lewis: It’s a ton and a lot of times people only know about one or two. Like, you know, a lot of times people will say, “I’ve got a contract so I’m bound by it” or sometimes they’ll say, “I don’t have a contract so that must mean I’m not entitled to anything.”
Dana DuPerron: Yeah.
Jill Lewis: The three of them work together and that’s why it is important to come see an employment lawyer to review all three, right.
Dana DuPerron: Right.
Jill Lewis: So that’s what we do, right. Like before I even sit down with someone, I’m looking at their factors, I want to know their age, I want to know their job title, I want to know salary. I’m going to look at their contract, I’m going to look through the Employment Standards Act – well no, I’m not going to actually look through it. Hopefully, by that point, I know the ESA [laughs] –
Dana DuPerron: Most of the time, most of the time. There are some things I have to look up every time.
Jill Lewis: No, you’re right, you’re right.
Dana DuPerron: Those nitpicky things.
Jill Lewis: The nitpicky, yeah.
Dana DuPerron: But most of the time you know the big ones.
Jill Lewis: Yeah. So those were the big three and that’s why you should have a basic understanding of that so that you know when it’s time to come take a look, have an employment lawyer take a look at them.
Dana DuPerron: Yeah. And I don’t think you should expect yourself to be an expert. Like that’s not the point, right, because it’s been – like I’ve been doing this for eight years and every time there are all kinds of pieces that play together and that you have to fit together and there’s all kinds of if this happens then this, and if this happens then this.
Jill Lewis: Yeah, yeah.
Dana DuPerron: It’s more about, and I think our point is, knowing when to ask the questions.
Jill Lewis: Yeah, and it’s changing all the time.
Dana DuPerron: Yeah, yeah.
Jill Lewis: It’s changing all the time.
Dana DuPerron: Yeah. And hopefully, we can give the background information that’s helpful to at least know, “OK, I think I should be doing something here or talking to someone” or whatever.
Jill Lewis: Yeah, absolutely.
Dana DuPerron: Yeah.
Jill Lewis: I hope everybody is ready for their pop quiz. That was your employment 101.
Dana DuPerron: What are the big three, go? No.
Jill Lewis: [Laughs] That’s the first episode. We’re going to get into everything in a little bit more detail. We’re going to really break this stuff down, that way if you want to just know about contract law you can check out that episode. So yeah, we’re excited to get into the nitty-gritty of all things employment law.
Dana DuPerron: I can’t wait.