Ted Flett, a partner at Zubas Flett Liberatore Law, was recently a podcast guest with host Calan Breckon. During the interview, recorded before a live audience, Ted addressed a wide range of topics in employment law such as recruitment best practices, the Employment Standard Act, the Canada Labour Code, minimum wage, employment agreements, employer obligations at termination of employment and off duty misconduct.
Click here or on the video below to hear the podcast or consult the transcript below.
Read the full transcript below.
Calan Breckon: So today’s episode is not sponsored, but I did want to give a little shout out to probonoontario.org because we’re going to be talking about legal advice and all that kind of stuff in today’s episode and I have used them before to help sort out legal matters. Now pro bono.org offers free legal advice as a hotline. You can call in, you can get up to a half hour for free and they talk. You can talk about going to court, appeals, employment law, customer protection, housing issues, corporate and powers of attorney. They do not deal with family law, immigration or criminal law, but it’s a really great resource if you’re looking for some help and you’re in the Ontario region and you need to talk to a lawyer. I know there’s a bunch of different options across Canada as well, so you can always look for something that suits you. If you’re in a different province, the link to them is going to be in the show notes for you. So that’s just probonoontario.org and then from there you can get their toll free number. So with that, let’s jump into today’s episode. Today’s episode was recorded in front of a live audience at the CGLCC’s Toronto Business Symposium held at the CN Tower on November 8th. For those who don’t know, the CGLCC is Canada’s 2SLGBTQI+ Chamber of Commerce and we thank them for sponsoring today’s episode.
Now on to today’s episode.
Welcome to the Business Gay podcast where we talk about all things business, marketing and entrepreneurship. I’m your host Calan Breckon and on today’s episode I have principal lawyer at Zubas Flett Liberatore Law LLP, Ted Flett. Ted represents both employers and employees in all matters of employment law. He is committed to delivering collaborative legal solutions for his clients and combines his passion for the law and problem solving with his education and experience to deliver the results to clients with a workplace Or human rights issue. Though an able litigator, he will also explore more cost effective and efficient strategies for his clients, including negotiation and mediation. In the community. Ted volunteers his time to represent low income clients through Pro Bono Ontario, provides pro bono counsel to the CGLCC and is an active supporter of organizations such as Friends of Ruby. I’m excited for you to hear this live recording about employment law with Ted. So let’s jump in.
Oh, but before we do, side note, as this was a live recording, you might notice that one of the mics was quiet, but I assure you it is gold. So, please, I hope you enjoy today’s episode.
There’s a lot of questions that you need to ask when you want to employ somebody, but there’s also questions that you should definitely avoid asking and that you’re not allowed to ask. So what are some of those questions that you should avoid in order to kind of prevent yourself from maybe violating human rights laws here in Canada, we’re starting off real big.
Ted Flett: Yeah, we’re going right into it. So there are protected grounds under human rights codes, both federally and provincially. So to some extent, it depends which province one lives. But, for example, in Ontario, there are about a dozen protected grounds that span from, you know, age, gender identity, sex, place of origin, color, ancestry, which employers will want to avoid asking questions about. Okay. Some of the more natural ones can sometimes be questions around an individual’s family planning, sort of plans and future.
That’s not a great question to ask, because family status is a protected ground, and the right to take maternity and parental leave, for example, in the province of Ontario, is a protected right.
And so I encourage my clients to avoid those topics. Sometimes, one of the, not traps, but the risk is that broad questions like “tell me about yourself” a candidate can disclose something about themselves which relates to a protected ground, and that is not an invitation necessarily to dig in more on that and employers should exercise caution before they do so. It’s also very fair when a candidate asks questions of the employer that might speak to a protected ground, that the employer remember that they’re not, you know, they’re not required to answer every question on the spot, right, and if a particular answer to a particular question feels like it could be a minefield, my advice, [Calan: steer clear] well, steer clear and just say, look, let me look into that and get back to you. That’s completely reasonable. Now, the next step is you do have to take the time to then look into it and respond accordingly but if you feel as though, ooh, this answer could get into some dangerous territory, just jot it down and follow up.
Calan Breckon: Okay, so in that thread, we are. A lot of us in this room are queer. Part of the LGBTQ community, say us at the Bow. We are very open to having queer folks into our business. And we don’t necessarily want to ask that. How do we navigate that? That we let them, everybody know that it’s as part of it, but they don’t have to be LGBTQ in order to be in the business and navigating those things, because it can come up on both sides of it. Discriminating against us, but then the opposite of like, oh, well, are we discriminating against folks who aren’t.
Ted Flett: Sure, sure, yeah. And the laws protect protected grounds, but it doesn’t favor one race over another or one gender identity over another. So I think my answer to that is two questions or two answers. One is to ensure that the employer has policies around diversity and inclusion at the workplace so that the employer, the company, the organizations, values and culture is entrenched in writing. Okay. And there’s an anchor that you can go to firstly. And then secondly, it’s about living and enforcing that. And so that may involve bringing in facilitators and training employees on how to embody diversity and inclusion on a regular basis within the workplace and being really careful about, you know, conversations as they come up.
Employers are not expected to be perfect.
And that’s not necessarily the scale, but so long as you’re acting in good faith and you’ve got, you know, grounded policies, culture and values that can help to navigate, you know, outside and being compliant with human rights laws, then generally they can be on side.
Calan Breckon: Okay, so I want to continue kind of the recruitment side. We have three phases we’re going to go through here today.
When it comes to navigating maybe what they call poaching somebody to your business, I know that it’s not just as simple as like, hey, come and work here. There’s actually a lot of like, laws and requirements and things around that that you need to be careful of. So when you’re trying to coax somebody away from a secure job, what is inducement in this context and how can it lead to potential claims from somebody you’re trying to get to work for you? Because I didn’t even know about this until we came up with these questions.
Ted Flett: Yeah.
So great question.
Calan Breckon: Thanks, ChatGPT
Ted Flett: It’s as if we talked about this before. And so inducement or recruitment of a candidate for. From secure employment becomes a thing or an issue normally at the time of possible termination of an employee and where it’s significant. And this is where I might nerd out a little bit.
Calan Breckon: Get as nerdy as you want.
Ted Flett: Okay, okay. Okay. So at termination of employment, an employee’s rights come from a few places. But the primary two. Well, there’s three. The first is statute, which if you’re here in Ontario, it’s the Employment Standards Act. And if you live and work in Ontario, but you, for example, work for an airline or a bank or a transportation company, those employers are actually governed by the Canada Labor Code. So it’s just a different statute. They have to be alive to. But you have statutory minimums that you must be paid at termination or provided notice of determination.
But we also have what are called common law entitlements. And if a statute sets your minimum pay or your minimum notice under law, judges and courts actually set your maximum. And that’s what we call common law. And judges would apply a test called the Bartle test, which is an old case, because judges in a Commonwealth judicial system operate on precedents and they look to prevent previous decisions by judges. And there’s an old test called the Bartle test. And the Bartle test essentially says that judges need to consider a plaintiff’s age, length of service, income and position in trying to determine what is a reasonable notice period and how long it will take them to find new employment. Okay, but that list is not exhaustive. Judges can look at other things and judges of the other things and factors, they can look at inducement. And a judge will help and assist an employee who was taken from secure employment and then terminated subsequently at the new employer to both assist the employee and also send a message to the employer that be a bit more careful before you rip someone from secure employment and pull them over to your business if you don’t intend to maintain a long relationship. So that’s why inducement is important in the context of before an employer goes out and grabs an employee from secure employment, you want to be alive to that risk. And if you’re an employee where you have secure, comfortable employment and someone is trying to recruit you, you’ll want to be alive to inducement. The rights of employee who’s been induced and. And seek legal counsel to help navigate your way when a claim of inducement is being made at termination. Okay. Where a terminated employee is saying, you know, look, I was induced, I was recruited, therefore I should be entitled to more notice, period.
A judge will look very specifically into the circumstances, all right, and try and assess and understand what was the extent of the recruitment, who initiated the contact, what did the contact look like, that is, was this person being wined and dined or was this person going through pretty typical common recruitment processy interviews, for example.
And then another thing that they look at is, and we might talk about this later, but our probationary period clauses.
Calan Breckon: That’s the next question.
Ted Flett: Yeah, yeah, there we go. We’re transitioning it. Probationary period clauses, which going to chat about later in terms of details, because those can be, for me, exciting. But probationary period clauses, when they exist or show up in a contract would suggest or indicate employers would rely on those to say that there wasn’t a recruitment. Because if an employee is being recruited, that is the new employer is saying, we got to have this person, they need to be on our team.
A probationary period would run counter to that because the employer is then protecting themselves to be able to terminate that person in the first three months. So if the bottom line is if you’re being recruited and if there’s a probationary period provision in the employment agreement, that’s a red light, right?
If you’re coming into a new employer and they’re, you know, sweetening the deal and offering, you know, more compensation and better terms of employment, you’re going to want that probationary period clause to come out of the employment agreement so that in the event that the relationship, you know, dissolves, you’ve got that protection.
Calan Breckon: Okay, so it’s a couple things. Is if you’re being induced over what does that probationary period look like? Or is there, are you going straight in without that? Like, does that ever happen where you’re like, okay, you can pull me over, but in lieu of that, we’re not going to do this probationary period to protect me as the person coming over? Because it’s kind of like the corporation is trying to protect themselves in both stances by doing that to you. Which I can only assume a business is going to do that.
Ted Flett: Right?
Well, I think it’s really important to underscore that offers of employment and employment contracts are not boilerplate. These are very specifically carefully crafted documents that protect the employer because the employer is drafting them. So to everyone in this room and to everyone’s listening, when you receive an offer of employment or when you receive a contract, if upon reading it, you don’t understand it, because there’s a lot of legalese that like anything else that comes across your desk or your phone, your computer in your life, is something that you should go and see a lawyer about and seek advice on what this thing means and what it is that you’re signing. Okay. Because a probationary period clause, for example, is very specifically intended and included in an employment agreement to. Well, according to the common law judges would say that a good faith probationary period clause is really permitting the employer to assess the employees suitability, their fit with the workplace on an early basis before they start to really get into greater risk or liability if they choose to terminate that person. Okay, this is where I’m going to geek out a bit more is that the Employment Standards act actually doesn’t the word probation or probationary period. It doesn’t even exist in the act or in its regulations. So the Employment Standards act does not create a probationary period. It simply says that in the first three months of employment, an employee does not have a statutory right to other notice or pay in lieu of notice if they’re terminated. Okay, so it’s really employers who have come in there to then say, all right, well we will enforce, then we’ll introduce a probationary period.
Because if that, if that doesn’t exist, then you have not contracted out of, for example, your common law entitlements.
Calan Breckon: Okay, so get, get a lawyer.
And now we’re going to dive into more of the spicy side of this and how it might look because of what we just covered. Now we are in this new social media age where people are going online and talking about very important topics that are important to them. Their hearts, their ways of being. The queer community. Like we are attacked constantly from all sides, all the time. So how should employers handle that off duty misconduct of social media on platforms like TikTok and can it be grounds for termination?
Ted Flett: So they should, how should they handle that or operate? They should, they should operate with extreme caution because it, while off duty misconduct is not new. Okay.
There are cases and decisions addressing off duty misconduct from the 1960s, but social media has changed that so dramatically where an employer’s and other individuals observation and tracking and collection of concrete evidence of off duty misconduct has multiplied significantly through social media and as a result of it. And so we’ve seen more recently this year, particularly for example with the Israel Hamas war.
Of course we’re, we’re coming off the results of Tuesday and the US election.
Calan Breckon: I, when this was recorded, just so.
Ted Flett: Yes, yes, yes.
Why do I feel like that’s going to be cut out of the podcast?
Calan Breckon: It’s okay. This is probably going to air sometime in December or January, so.
Ted Flett: Brilliant.
Calan Breckon: We don’t know where we’ll be there.
Ted Flett: Who knows? Oh boy, that’s terrifying to think where we be in December. But in any event, when there are political issues that are unfolding in the world and individuals feel compelled to write about it, to post about it, that then can enter into the general public. Well, it does enter into the general public sphere and of course one’s employer is part of that.
Insofar as whether an employer can either discipline or terminate an employee on the basis of off duty misconduct or really importantly, terminate an employee for cause. Okay, which is where all of those rights and entitlements to either notice or pay in lieu of notice that I spoke about earlier completely disappear because the employee’s conduct reaches such a standard that it just has the impact of ending and dissolving the employment relationship.
That is a really high standard. And so in order for employers to meet that standard, which is of course indicators for employees on how to avoid that standard, before you start typing and posting something that’s going to get you in a lot of trouble, you want to be mindful of all sorts of circumstances specific to it. So when did this off duty misconduct happen?
Did it happen possibly on a break while at the workplace? Right. Did it happen at a workplace event or party or celebration? Sort of during off duty hours? Was the individual with colleagues and some of the other employees such that it would harm and impact their ability to work with that employee going forward?
Was there an intersection, so to speak, between the conduct of the employee and the value or the culture, the mandate of the employee employer, that becomes an important consideration for a judge as to whether off duty misconduct can lead to discipline or termination for cause.
For example, if a person is wearing their, you know, company uniform with a logo and they, you know, video put up a TikTok video of them in that, and they therefore appear to be representing the interests and the position of the employer, then that can, that can satisfy a court insofar as a mounting determination for cause. So the courts are careful to distinguish between an individual’s right to live their life without their employer being Big Brother and also protecting the interests of the employer. When an employee’s conduct off duty reaches to a certain level or a certain scale, that it has the effect of dissolving the role relationship.
Calan Breckon: Okay, so this digs into kind of the next area I wanted to dive into. I used to work for an employer where we had strict regulations that if we were going to post on social media in uniform, you then became a representative for the company and thus you had to follow the regulations and rules of what they wanted you to look like in that social media? So in that thread, what can employers like? Can employers monitor and restrict employees using social media if it’s on their off hours, if it’s going to impact the company, and to what degree can they navigate those waters?
Ted Flett: I think similar to what we talked about earlier about ensuring and enforcing diversity and inclusion at the workplace, it starts with, starts with a policy, starts with an employee handbook where the expectations of the employee and the obligations of the employer are laid out in a clear and unambiguous way, which can be really difficult in social media because there are all sorts of different types, there are different ways of posting, there are different lengths of a post, times in which they’re live, etc. But to the best extent possible, employers should be creating policies that help to address. And I mean, this is going to sound really basic, but sometimes you have to start at the very foundation when you’re arguing something in front of a judge. You got to define social media. Right. For those who may not know what it is or if there’s some lack of clarity and that may sound silly, but online discussion boards, some would say that social media, some would say that that isn’t necessarily because it’s been around for so long. So defining social media, placing rules and expectations around when and how an employee can post something either to the, you know, to the company’s, you know, official corporate accounts on social media or organizational accounts in the case of a not for profit profit or even their own accounts, but as you said, when you’re representing the company or you’re in company uniform and something of that sort. So being really clear to define when an employee can or cannot do that and then also laying out what the potential consequences are. Right. And indicating that this could lead to discipline and all the way up to potentially termination for cause. So it’s really carefully crafted policies and then enforcing those, making sure that people are trained up on those. It’s not enough to just have a policy, you’ve got to make sure that people can access it. So put it on intranet or make it available. Ensure that your employees are signing an acknowledgement that they’ve read it and they understood it, updating those policies. Right. You don’t want to dust off something from the 1990s to address off duty misconduct as it relates to social media. It’s simply not going to comply. So ensuring that those policies are updated and you’re living those. I feel like I’m coming back to hire a lawyer.
Calan Breckon: Hire a lawyer.
Ted Flett: It’s really important to get the right advice on that.
Calan Breckon: Yeah. And I want to be clear again that everything we’ve talked about and spoken about today is Canadian specific.
I know we haven’t prepared for this one, so I’m throwing you a curveball. But I know that you do do a lot of work down in the US because that’s what we go on trade missions for and stuff like that. And so is the experience obviously different here in Canada and the laws here in Canada, what are they compared to maybe some laws down in the US for, you know, if there’s some US Listeners to this. Do you know any of that?
Ted Flett: Well, I can speak broadly to the issue both as it’s addressed through judges in courts and also through my own experience of representing American entities who have workers, either independent contractors or employees here in Canada on the ground. And they require local council, American organizations and corporations and legal counsel are usually stunned at how employee friendly the laws are here in Canada. They don’t necessarily always feel it to me because I work with it on a daily basis, but then you can compare to other jurisdictions and you think, oh, okay, well, this is, you know, we are in a better place here in Canada versus some of our neighbors insofar as protections for the employee judges are also indicating through decisions that corporate decisions that are made out of the US Even if they’re not intended to apply specifically to Canadian, Canadian employees, but have the effect of creating a culture or a mandate or a policy for all employees can be, you know, taken to task. If that policy in the US which was perhaps drafted to comply with Tennessee law or something, if it has the effect of breaching the Employment Standards act or Provincial act or Federal act for that matter, here in Canada, which is to me interesting as that evolves because it’s giving Canadian based employees and workers more rights and protections and it’s requiring that employers be that much more careful about drafting their policies and making decisions as they affect employees when they’re based in the US if they have employees that are here in Canada.
Calan Breckon: Yeah, so once you branch out, so it’s almost better if a company does all that stuff in Canada, then they know they’re probably more safer going to the US Than vice versa because they’re a little bit loosey goosey down there comparatively. It sounds like.
Ted Flett: Well, I mean, I mean, it’s ironic at this particular time in our world, but generally there are lots of parallels between Americans and Canadians. And so it can be relatively natural for an American to, to assume that the laws that apply to them probably or could apply to Canadians and sometimes vice versa. And that’s an assumption that one should not make.
Calan Breckon: Yeah, perfect. So is there anything you want to end off on that you want to get across specifically about employment law? Like one solid sweet takeaway that you’re like, okay, if you don’t take anything else away, this is what you need to just remember.
Ted Flett: Oh boy. I mean, I usually operate in like groups of three, but okay, if there’s just, if there’s just one.
I’m going to underscore what I said earlier, which is that an employment agreement or an employment policy are not boilerplate. They are not accidental. There are very specific terms that have been put in there. And this is. I mean, this is a notice to both employees and employers. Right. Employers should not be grabbing a precedent, contract or template off of the Internet. That’s just a terrible idea because you don’t know what you’re getting and you don’t know if it’s compliant. Firstly, secondly, for employees who, or candidates who receive an offer of employment or who during their employment, for example, receive what’s called a continuing employment agreement, when HR says, oh, hey, we needed to update our, you know, our contract, so if you could just, you know, sign this at the time that we give you a pay raise or we’re going to give you $100 signing bonus, to sign this, like that should be alarm bells for an employee. And it very sincerely, kind of like breaks my heart when I’m advising a client and unfortunately, they’ve signed something and they didn’t appreciate what they were signing. And as a result, they signed many of their rights away and there’s not much I can do to help them. So it’s keeping your antenna up. I know full well. I mean, I love my work. I love the people that I work with.
So when a person receives an offer of employment and you’re excited to jump on board with this new team, you can be a little blinded about what you’re going into and you can feel like maybe you’re ruffling feathers. If you then go to the employer upon receipt of that contract and say, can we talk about this provision? Can we change this? Can we alter this? Right, like that. That seems rude. That’s very un Canadian. But it’s really imperative because you could be with your employer for 12 months, you could be with them for 12 years, you could be with them for 30 years. And what you’re signing in 2024 could actually come to haunt you in 2054. Right. If you’re there for 30 years or more. And so it’s really important to keep your antenna up around what’s being put in front of you, both as a contract or as a policy and ensuring that you’re getting the correct legal advice on it. And for employers as well, to make sure that before they make an offer of employment or they put a policy or a handbook in front of their employees, ChatGPT is great, but it’s not great for that.
Calan Breckon: Yeah, ChatGPT isn’t a lawyer. So this topic isn’t always exactly like the zestiest of all topics, but it is.
Ted Flett: How rude.
Calan Breckon: I know this.
Ted Flett: I feel full of that.
Calan Breckon: The shade of it all.
Ted Flett: My shirt has a little smidge of.
Calan Breckon: Yeah, but it is something. In a room full of entrepreneurs, it’s really, really important. Important to know and understand because as creatives, a lot of the time, entrepreneurs and creatives. We don’t necessarily take all these things into account because we’re so excited about moving forward. We’re so excited about doing the thing that we’re like, oh, we’ll figure that out later. Or it’s fine to make sure that you’re finding people like Ted, who does love this, who does want to dig into the details to protect you as the human being, as the person, as the business, all of it. And so again, I’m just going to throw back to pro bono Ontario. It’s fantastic here in Ontario, if you need that. And then also check Ted out. Where can they find out more about you, your business and if they want to reach out?
Ted Flett: Yeah, sure. So I’m not going to resist the temptation though, to just build on what you said, which is that I think sometimes lawyers have a reputation of bogging things down, right? It’s like, oh, who wants the lawyers involved? And it is never my intention when I’m acting on behalf of an employer client, for example, to slow down your, you know, your focus and your work on, you know, selling your service or your widget. I want you to have a clear Runway to knock that thing out of the park. And I want to protect you and create guardrails for you so that as you build your team, your liability is, you know, reduced and protected and you can focus on a fair, reasonable, respectful, productive workplace. In terms of reaching me, the website is ZFL Law CA and our phone number is 416-593-5844. There’s a toll free number as well, which I cannot remember off top of my head. So go to the website for that. And yeah, we’re a large team, so we’re always interested in fielding calls and having chats and conversations on how we might be able to help.
Calan Breckon: Magical. Well, thank you,
Calan Breckon: Fantastic. Well, thank you so much, Ted. We are coming up here at Time. I want to give everybody a chance to have another little coffee, tea, what have you. But thank you so much for your time today. You are a wealth of knowledge and a fantastic human being. So if any of you are looking or need any legal advice, I highly recommend you give Ted a call.
Ted Flett: I am for hire. Thank you.
Calan Breckon: Thanks for tuning in today. Don’t forget to hit that subscribe button. And if you really enjoyed today’s episode, I would love a star rating from you. The Business Gay podcast is written, produced and edited by me, Calan Breckon. That’s it for today. Peace, love, rainbows.