Top 10 Human Resources Questions | Calgary, Alberta

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WENDY ELLEN INC.

June 2018 Newsletter
In This Issue
June 2018
Volume 5, Number 6

June is here and summer has begun! Everyone is revelling in warm weather and the opportunity to spend time outdoors with family and friends.

This month we are focusing on the Top 10 Human Resources Questions that we receive here at Wendy Ellen Inc. There is a broad range of topics, and we provide some detail on each.  The format is a bit different than most months but we wanted to fit all the questions in - there's lots of important and relevant information. 

Keep reading for more learning!

TOP 10 HUMAN RESOURCES QUESTIONS

1. What are the rules around Overtime? Can we use averaging agreements to get out of paying overtime?
 
2. Can I extend an employee’s probation?

3. What do we do with cannabis in the workplace (medicinal/recreational?)

4. #metoo – How do we work with women?

5. What constitutes a ‘for cause’ termination? How much severance should we give someone?
6. How does vacation accrual really work and can we have a use it or lose it policy?

7. What are my obligations when someone is on disability?

8. What is a taxable benefit and what can I put through my Health Spending Account?

9. What are the changes to general holiday pay under the Province of Alberta's new Employment Standards legislation?

10. How should we structure our annual reviews?

Question 1: What Are The Rules Around Overtime? Can We Use Averaging Agreements To Get Out Of Paying OT?

Basic rules

  • Most employees including those paid a weekly, monthly, or annual salary, are entitled to overtime pay.
  • There are some exemptions for certain industries and professions.
  • Overtime is all hours worked over 8 hours a day or 44 hours a week, whichever is greater (8/44 rule).

Pay rate
Except where there’s a written averaging agreement, an employer must pay an employee overtime pay of at least 1.5 times the employee’s regular wage rate for all overtime hours worked.

Banked overtime
Sometimes, instead of paying overtime pay, an employer may give an employee time off work with pay (banked overtime) at a rate of 1.5 hours for each overtime hour worked as part of an overtime agreement between the employer and employee. This time must be used within 6 months of it being banked or it warrants payout.

Calculating overtime for salaried employees
Overtime hours are calculated both on a daily and weekly basis. Overtime is whichever is greater, either hours over 8 in a day or 44 in a week (not both).  For example someone may work 9 hours one day but not 44 in a week - they need to be paid OT on the one hour.  Also someone may work 8 hours per day and then 4 on a weekend for a total of 44 hours - no OT is due.  If someone's total hours equal over 44 (which would include over 8 on some days), the total hours over 44 need to be paid. Remember OT is not payable on hours over and above someone's schedule if that schedule is less than 8 hours/day. It’s important to note that even though the pay period may end mid-week, overtime pay is based on overtime hours for the work week, not the pay period.

Basic overtime pay rate
Overtime hours must be paid out at least 1.5 times the employee’s wage rate. This overtime rate of pay is multiplied by the total number of overtime hours that employee has worked.

Employees must use up banked overtime within 6 months of the end of the pay period in which they earned it, unless there is a collective agreement that allows the overtime banking period to be extended.

Calculating Overtime Under an Averaging Agreement
An averaging agreement used to be referred to as a compressed work week. This is not a way for an employer to eliminate paying overtime but a way to allow employees to work a longer day in exchange for a shorter work week.  For example: an averaging agreement could have employees working 10 hour days over a 4 day period and no overtime is payable.  If that person then has to work additional time it is paid as regular time unless it exceeds 44 hours in a week. Averaging agreements can look very different as far as scheduling but there are absolute rules around a legislatively compliant averaging agreement. For example the agreement must be accepted by the majority of those affected, the schedule may be 1-12 weeks in length, be a maximum of 12 hours per day and be in writing and posted in obvious places in the workplace.

For additional details, please visit the Government of Alberta Employment Standards Webpage

Question Number 3: What do we do with cannabis in the workplace?


Any time a request for medical marijuana use is received, it should never be rejected as a matter of course, rather, it triggers a request for accommodation and must be treated as such. It is critical therefore, that you have an accommodation plan in place that encompasses medical marijuana. Educate yourself regarding medicinal marijuana to ensure you are not predisposed to answer any particular way based upon pre-existing notions of marijuana that are likely to be entirely inaccurate. In other words, the use of medical marijuana by an employee should be viewed in the same way as any other doctor-prescribed medication.

We recommend that employers take steps to update all policies and procedures to work through medical marijuana usage requests and accommodations, specifically:
  • update drug and alcohol policies to specifically address marijuana use (or resulting impairment) at work, including a duty to disclose any use of marijuana in the workplace, as well as the consequences of non-compliance;
  • modify human rights and accommodation policies to specifically deal with issues relating to marijuana dependency; 
  • introduce protocols for the accommodation of medical marijuana use at work, including the requirement for qualified proof of prescription and appropriate medical indication of necessary ingestion at work;
  • establish a framework for testing for impairment, possibly including mandatory independent medical examination in appropriate circumstances; and
  • train management and supervisory staff on the application of all policies relating to medical and non-medical use of marijuana in the workplace. 

While Human Rights Legislation in Canada requires that a disabled employee be accommodated,
  • a prescription for medical marijuana does not entitle an employee to be impaired at work;
  • a prescription for medical marijuana does not entitle an employee to compromise his or her safety, or the safety of others;
  • a prescription for medical marijuana does not entitle an employee to smoke in the workplace. Anti-smoking laws apply to smoking marijuana in the same way they do to regular cigarettes;
  • a prescription for medical marijuana does not entitle an employee to unexcused absences or late arrivals.

The employer is, however, required to attempt to find suitable, accommodated work for the employee, as would be required for any other employee with a medical drug prescription.
 

Question 5: What constitutes a "For Cause" termination? How much severance should we give someone?


Termination for just cause typically involves conduct that’s serious enough (either on its own account or in combination with other factors) to justify the employer ending the employment relationship immediately.

Situations that can merit just cause for dismissal include: 
  • Misrepresentation of qualifications
  • Sexual harassment
  • Breach of duty
  • Conflict of Interest
  • Competing with employer’s interest
  • Wilful disobedience
  • Theft
  • Fraud and dishonesty
  • Deliberate rude and offensive behaviour toward the employer
  • Intoxication and substance abuse
  • Serious incompetence
  • Chronic and excessive absences or lateness; the absences and late arrivals must be the fault of the employee. Some examples of just cause include:
    • Failing to return to work after vacation.
    • Leave of absence without notifying the employer.
    • Taking time off under false pretenses.
    • Chronic tardiness that is intentional and deliberate.
    •  Illness (temporary illness or disability is not just cause for dismissal. However. permanent illness or disability may be.)
Employer’s responsibilities
  • The employer must prove that the dismissal is justified: the employer must show more than just dissatisfaction with the employee’s performance
  • Real misconduct or incompetence must be demonstrated
  • The employee was aware of the consequences of failure to perform certain duties or obey certain rules

The employer must keep accurate records:
  • it’s a good practice to document the time, date and outcome of any conversations or encounters that they have with the employee about inappropriate behaviour or conduct
  • this information could be useful if they decide to end the employment relationship in the future

The employer must ensure employees know the consequences of breaking the rules. They may do this by:
  • developing an employee handbook and distributing it to all staff
  • ensure employees sign off annually that they have read and understand the policies
  • post a copy of this handbook in a public place for all staff
  • issuing warning letters if the employee’s conduct becomes problematic and show that you have assisted the employee to correct this behavior by giving them time and strategies

To establish just cause, an employer must not only prove that the employee engaged in some sort of misconduct, but also that a just cause termination was warranted based on the nature and extent of the misconduct as well as the surrounding circumstances. In other words, a just cause termination must be a “proportionate” response to the employee’s misconduct.
 
Employers aren’t required to give termination notice (or pay in lieu) to employees who are dismissed for just cause.

Unless the cause for termination is fraudulent, poses a danger to your staff or business or is borderline criminal it is often easier to terminate employment and pay out the notice period as per Employment Standards. This results in a clean break without incurring unnecessary and often lengthy legal proceedings and fees.


 

Question 7: What are my obligations when someone is on disability?

The Alberta Human Rights Act prohibits discrimination based on physical and mental disabilities.

What is a disability?

Physical disability is defined in the Act as any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness. This includes, but is not limited to, epilepsy; paralysis; amputation; lack of physical coordination; visual, hearing and speech impediments; and physical reliance on a guide dog, service dog, or wheelchair or other remedial appliance or device.

Mental disability is defined in the Act as any mental disorder, developmental disorder or learning disorder, regardless of the cause or duration of the disorder.

In Alberta, employers, landlords, tenants and service providers are expected to make reasonable efforts to accommodate individuals with disabilities unless it would cause undue hardship.

It may be possible to make adjustments to a building to accommodate people with disabilities. On the job, workloads may be rearranged so that duties that cannot be performed by an employee with a disability are handled by another worker.

Examples: 

  • A ramp may be built to a building entrance to make it accessible to wheelchairs.
  • An employee in a wheelchair may find filing impossible. However, another employee could do the filing, and the worker with the disability could assume responsibility for a larger volume of work on the computer.
  • An employee suffering from a mental illness might require altered job responsibilities, on a partial or permanent basis.

If you have an employee who is off work due to a disability of any kind, you are obligated to bring them back to the organization when they are fit to do so in a job that is comparable in pay and duties - preferable the same job they left. You are also obligated to accommodate their return to work if they need accommodation from the physical workspace to change of job duties or hours of work.  You must accommodate their return unless you can show that by doing so would put you in an undue hardship situation. 

For more information about accommodating people with disabilities, see the Commission information sheet Employment: Duty to accommodate and interpretive bulletin Duty to accommodate.

Health and safety

Employers are not expected to hire or continue to employ anyone whose disability notably increases the probability of health or safety hazards to themselves, other employees and/or the public.

For example, someone subject to epileptic seizures that are not fully controlled with medication could not be expected to safely perform a job working on a scaffold or driving a truck. Someone with a serious mental impairment may not be permitted to be responsible for children in a day care setting.

It is up to the employer to demonstrate that the individual's disability would threaten the safety of that employee or others at the worksite.

Question 9: What are the changes to general holiday pay under the Province of Alberta's new Employment Standards Legislation?


Basic rules
Most employees, full-time and part-time, are entitled to paid general holidays immediately after starting their employment.

General holiday and general holiday pay changes: 
  • The requirement to have worked for 30 days in the 12 months before the holiday has been removed. The distinction between regular and non-regular days of work has been eliminated.
  • General Holiday pay is calculated as 5% of wages, general holiday pay, and vacation pay earned in the 4 weeks immediately preceding the holiday.
*By federal law, when July 1st falls on any day of the week other than Sunday, it is celebrated on that day; however, when it falls on a Sunday, it is treated as if it fell on the Monday immediately following.

Optional general holidays
If an employer agrees to designate additional general holidays for their employees, all employment standards rules related to general holiday pay still apply for these additional holidays. Employees should confirm this and any pay entitlements with their employer.
Optional General Holidays include:  Boxing Day, Easter Monday and Heritage Day (1st Monday in August).

However, an employer can designate these, or any other day, as a general holiday. When this occurs, that day will be subject to the same rules as the nine statutory general holidays.

Click here for details on new standards for general holidays 



 

Question 2: Can I extend an employee's  probation?


In Alberta, the normal probationary period is three months of time worked, which should be included in the written offer of employment. An employee accepting an offer of employment, which establishes and sets out the probationary period, is deemed to accept the probationary period as a condition of employment.

If an employee is not performing their job as expected you can terminate the relationship within the probationary period without notice or pay in lieu of notice as per Employment Standards. As an employer you may extend a probation period but if you decide to terminate the employee after the initial 3 months of employment, whether in what you deem a probationary period or not, you will still have to give notice or pay in lieu of notice as per Employment Standards. Some employers choose to extend the probationary period regardless, so the employee understands they are still under initial evaluation.

Question 4: How do we work with women? #metoo


Harassment occurs when someone is subjected to unwelcome verbal or physical conduct. Harassment is a form of discrimination that is prohibited in Alberta under the Alberta Human Rights Act if it is based on one or more of the following grounds: race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status, or sexual orientation.

Unwanted physical contact, attention, demands, jokes or insults are harassment when they occur in any of the areas protected under the Alberta Human Rights Act. These protected areas are statements, publications, notices, signs, symbols, emblems or other representations that are published, issued or displayed before the public; goods, services, accommodation or facilities customarily available to the public; tenancy; employment practices, employment applications or advertisements; and membership in trade unions, employers' organizations or occupational associations.


Sexual Harassment

Sexual harassment is a form of discrimination based on the ground of gender, including transgender, which is prohibited under the Alberta Human Rights Act. Sexual harassment is any unwelcome sexual behaviour that adversely affects, or threatens to affect, directly or indirectly, a person's job security, working conditions or prospects for promotion or earnings; or prevents a person from getting a job, living accommodations or any kind of public service.

In Alberta, employers are responsible for maintaining a work environment free from sexual harassment for all employees, customers and clients.

An employer who neglects to follow up on a complaint of sexual harassment may be liable under the Alberta Human Rights Act for failing to take prompt and appropriate action.

Policies that work:

Encourage employees to come forward with complaints. How a policy sounds and is structured is important. Management has to demonstrate its commitment to eliminating all forms of harassment.

Ensure acceptance by all staff, unions and employee associations  when time is invested through consultation, input and feedback.

Ensure all your staff receive training on what harassment is and isn't and that they understand your policy.

Provide a clear definition of harassment, as it relates to the protected areas and grounds in the Alberta Human Rights Act.

Include guidelines for individuals seeking advice about making a sexual or other type of harassment complaint.

Maintain confidentiality of complaints and protect employees from retaliation.

Designate a person or persons to hear complaints. These individuals should be viewed by other employees as neutral but as having the authority to act. If possible, have more than one person assigned to this important, sometimes emotionally-taxing, job.

Lay out the steps. Effective harassment policies provide a step-by-step description of what happens in the company when a complaint of harassment is made. To encourage prevention, also spell out the disciplinary consequences for harassing any employee.

Guarantee a fair and prompt reaction to anyone with a complaint of harassment.
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Keep the lines of communication open and encourage open discussion at meetings about the topic.

Question 6: How does vacation accrual really work, and can we have a use it or lose it policy?


Under the recent changes to the Alberta Employment Standards, the basic vacation leave entitlement is as follows:

An employer must provide an annual vacation to an employee of at least:
a) 2 weeks after each of the first 4 years of employment, and
b) 3 weeks after 5 consecutive years of employment, and each year of employment after that.

Every hour an employee works they are accruing vacation pay/time. Employers have the choice of allowing employees to take vacation before it is fully earned or make them wait until they have earned the vacation days they are requesting. Vacation accrual is a running tally; employees earn and they take so at any one time the employee may owe the company vacation time or the company may owe the employee vacation time.  When an individual leaves an organization a vacation calculation is done to see where the pendulum stops. If the employer owes the employee vacation they pay it out, and if the employee owes the company, if pre-approved the employer can deduct from final pay. 

You can only apply a 'use it or lose it" policy to take away vacation over and above what an employee is entitled to under Employment Standards (a practice we don't recommend). It is better for your employees' mental and physical health to manage vacation and ensure everyone gets to take their time to relax and rejuvenate.

Question 8: What is a taxable benefit and what can I put through my Health Spending Account?


Taxable benefits are benefits provided to employees that the employer has to add to the employee’s income each period to determine the total amount of income that is subject to source tax deductions. An example of this is a life insurance premium that the employer pays on behalf of the employee under a group insurance plan; the amount of the premium is a taxable benefit and added to the employees income for tax purposes.

A benefit is defined by the Canada Revenue Agency (CRA) as paying for or providing an employee (or close relative of the employee, such as the employee's spouse, child or sibling) something personal in nature. It may be in the form of a reimbursement, an allowance, or the free use of property, goods or services that you own.

The Balance website offers a good summary of taxable benefits and also provides excellent links to the relevant CRA website and bulletins.

A Health Spending Account can cover the portion of expenses not covered by a health or dental benefits plan. This includes your deductible, co-insurance (portion not covered if your plan covers less than 100%), or amounts that are over your plan maximums. You can also claim expenses not covered under your spouse's plan.

You can use your Health Spending Account to cover expenses that are eligible medical expenses under the Income Tax Act (Canada) and that are not paid (or not paid in full) by any other private or government plan. These include eligible expenses incurred outside your province of residence. Any money provided to you from an employer in a Health Spending Account is not taxable.

Question 10: How should we structure our annual reviews?


The first answer to this question is that reviews should not only be an annual process.  According to HR literature the annual process alone is a thing of the past and regular feedback sessions/commitments should be taking place at least quarterly. At its best, the Employee Performance Review process should help organizations align, motivate, identify, and develop talent. Ideally, your review structure should be tied to corporate and personal goals and your organization’s bonus program and not your compensation review. To avoid bogging yourself, your managers, and your organization down, focus on the basics and keep it simple.

A good objective when performing reviews is to state what a person has accomplished based on their alignment with corporate goals and then make it a forward-looking process: “What is it that we need to accomplish from a company standpoint?" "What are your own personal objectives?" And incorporate a career-development component – “What do you want to do next?" Make sure you leave the conversation open so your employees can tell you where they feel let down from the organization or leadership or themselves.

To simplify and optimize employee performance in your organization:
  • Ensure managers and employees are clear on the primary purpose of performance feedback as well as the tangible benefits to them. Remember this is about the conversation, not the paper.
  • Design the performance process to fall in line with the business processes they follow today.
  • Reflect your organization’s culture. The actual performance review tool can be as simple as a couple of open-ended questions addressing strengths and areas of improvement, provoking discussion, to a fully graded scale based on detailed corporate/job-specific competencies. This is going to depend on your culture and complexity of your Human Resources compensation systems. Just never lose sight of the opportunity for conversation.
  • Ensure that the performance tools are intuitive and easy to complete to ensure that the focus stays on the conversation between the employee and manager.
At each performance review:
  1. Send the review tool to the employee ahead of time so they can think about it and complete it on their own first. One of the best ways to note a disconnect in expectations is when an employee rates themselves very differently than the manager.
  2. Let the employee know how they are doing. Provide feedback on their performance. Allow space for them to talk about what they need from leadership and the organization. You may want to keep the review conversational, and may attach a value on a scale, rating the employee from "not meeting expectations" to "meets expectations" to "exceeds expectations." In your discussion, be as specific as possible, noting key examples of when they demonstrated a certain quality.
  3. Talk about the consequences or rewards of their performance. Let them know if they need extra development, have earned a bonus, changes in vacation days, or any other relevant action. See what they need or want as a result of the conversation.
  4. Discuss any problems they may be having. Listen to their concerns or worries as you talk through potential solutions.
  5. Set new or revised performance expectations for the next  period between feedback meetings. Some items may be the same. However, since these are also based on organizational goals, you will need to ensure your corporate goals are set and clear.
Answering Human Resources Questions calls for knowledge and skill.

Contact Wendy Ellen Inc. for assistance today!
About Wendy Ellen Inc.
 
Wendy Ellen Inc. specializes in providing human resource and benefits management skills to small to mid-sized companies on an as-needed basis. From recruitment, Human Resource policy development and legislative compliance, employee retention and engagement, individual advisor/coaching, succession planning to employee development and performance, Wendy Ellen Inc. will help you protect your most valuable resource, your people.
 
Contact Us
http://www.wendyelleninc.ca
wendy@wendyelleninc.ca