: Atlantic Employers' Counsel - Spring 2012 Issue

May 28, 2012

WORKING for Free in Atlantic Canada 

The issue of unpaid internships has received a lot of press over the last couple of years including the reproduced allegation above taken from the pleadings of a recently filed Southern District of New York, Class Action Complaint No. 12 Civ. 0793. The allegation reflects the public policy "moral" issues but not the "legal" issues facing employers. While there is a place for internships (some people need to start a vocation by observing the way a business conducts its operations, others want to put practical experience on their resume and add to their reference bank), the question remains whether an intern is an employee entitled to minimum standards (such as minimum wage) and workers compensation protection. This article focuses on the employment standards issue.

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Could Your Organization Benefit from LMO-Exempt Work Permits?

In most cases, an employer wanting to hire a temporary foreign worker must apply to Service Canada for a positive Labour Market Opinion (LMO) confirmation before the worker is eligible to apply for a Canadian work permit. This can pose a burdensome hurdle because LMO processing times have increased across Canada (especially in urban centres like Toronto, Calgary and Vancouver) and it can take up to four months or more to have an LMO application processed. Current LMO process times in Atlantic Canada are shorter but, still add significant time to the period an employer must wait before a foreign worker is authorized to work in Canada.

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An Employer's Guide to the Non-Disparagement Clause 

The aim of any employer during a settlement is to negotiate terms that will protect its business interests. A non-disparagement clause prohibits a former employee from making negative or demeaning remarks, either orally or in writing, about a former employer, its reputation, business operations and products. The clause may be inserted in a release or other document executed by the employee at termination. Negative comments made about an employer or workplace on a social network, like Facebook, are fair game for a disparagement claim, according to the recent groundbreaking British Columbia Labour Board decision in Lougheed.

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Frustrating, it's Not Impossible

Frustration occurs when performance of an employment contract cannot be carried out as the parties originally contemplated. Where frustration is established, the employment relationship ends. What's critical in frustration cases? Prognosis and existing contracts or policies! Dismissals are always subject to challenge by former employees. If the court doesn't agree on the frustration issue, an employer risks not only the legal cost of defending such an action, but a court assessment of "reasonable notice" and consequential losses, including "loss of benefits". This article reviews the doctrine of frustration and what you need to know before taking the position that the contract of employment has been frustrated.

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Safe Supervisors or Serious Sentences

Complaints of workplace harassment are increasing and so is the need for employers to investigate such allegations. Often, employers hire independent investigators to look into these complaints. In such a context, can communications between the employer and the investigator be produced as evidence in arbitration or at a later stage?

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