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What Ohioans Should Know Before Going to Work in Canada


Q: I am a U.S. citizen going to work for a Canadian branch of an Ohio company. Won't American employment laws apply to me while I am working in Ontario?
A:
Generally, no. As the law stands right now, U.S. labor and employment laws will not typically apply to issues that may arise during the Canadian phase of your employment. But that may depend on the circumstances of your employment. If you are not simply "on loan" to the Canadian branch for a short period of time (i.e., a consultant), but rather will be on the payroll of the Canadian branch employer, and will be paying Canadian income taxes, the terms of your employment will most likely be governed by Ontario and Canadian laws. However, you should make sure that your employer contacts legal counsel who is aware of Canadian and U.S. employment law first.

Q: Are there laws in Ontario like the Fair Labor Standards Act here that deal with issues like minimum wage, overtime, and hours of work?
A:
Yes. Employment in Canada is regulated by the province in which the employee is working, unless the employer is a federal corporation (e.g., banks, post offices). That means every province has its own egislation designed to protect all employees working in that province regarding issues like minimum wage, overtime, hours of work, statutory holidays, benefit plans, vacation, pregnancy and parental leave, and notice pay. In Ontario, this legislation is called the Employment Standards Act (ESA).

Q: What if my employer wants to terminate my employment in Ontario for no reason at all?
A:
In Canada, there is no such thing as "employment at will." (In Ohio, employers can typically terminate employees for any non-discriminatory reason at any time, and employees likewise can typically leave their employment at any time.) Canadian courts, however, insist that the relationship between an employer and an employee is a binding contract (even if there is nothing in writing). While either the employee or the employer can "break" that contract for any reason that isn't discriminatory and at any time during the employment relationship, prior notice must be given of either party's intention to break that contract. If no notice is given, money damages (or "notice pay") must be paid, with some exceptions for willful misconduct, disobedience, and willful neglect of duties. There are also numerous special rules for dozens of particular industries, from IT professionals to salespersons to trade show representatives. 

Q: What is "notice pay"?
A:
Notice pay is what an employer must pay an employee who has not been given the required amount of prior notice of the employer's intention to "break the contract" between them. Notice pay must equal the amount of money the employee would have received if proper notice had been given before the termination.

Q: How much notice is enough?
A:
Ontario's ESA sets out the minimum periods of notice that must be given when an employee is terminated. The amount varies with length of service and the precise occupation involved, but can be as long as eight weeks. There are also special rules for mass layoffs of 50 or more people, which can require eight more weeks' prior notice.

Q: What if I should become disabled while working in Canada? Are there any protections there like the Americans with Disabilities Act (ADA) here?
A:
Yes. The Ontario Human Rights Code (OHRC), is the law that protects individuals in Ontario from different types of discrimination, including disability discrimination. The OHRC imposes a duty on employers to accommodate physically and mentally disabled employees "to the point of undue hardship."

Q: What is "undue hardship"?
A:
When an Ontario-based employer finds itself in a situation where an employee is unable to work due to medical reasons, that employer will generally be expected to accommodate the employee's disability unless it can quantifiably demonstrate that the burden will be so heavy as to substantially alter the business or substantially threaten its viability. This is a much heavier burden on business than the duty of "reasonable accommodation" under the U.S. Americans with Disabilities Act.

Q: If I think that I have been discriminated against while working in Ontario, can't I just take my employer to court?
A:
No, but you can file a complaint with the newly established Human Rights Tribunal of Ontario, an administrative agency with broad remedial powers. The Ontario Human Rights Code recognizes a very broad range of impermissibly discriminatory categories, including race, ancestry, place of origin, color, ethnicity, citizenship, religion, gender (including pregnancy), sexual orientation, disability, age, marital status, financial status, receipt of public benefits and even record of criminal offenses.

Q: Where can I find more information?
A:
  The Ontario Ministry of Labour maintains a compliance guide at: http://www.labour.gov.on.ca/english/es/pubs/brochures/br_compliance.php.

 

11/1/2012

 

Law You Can Use is a weekly consumer legal information column provided by the Ohio State Bar Association. This article was originally prepared by Cindy-Ann L. Thomas, a Columbus attorney who is admitted to the Bars of Ohio and Ontario, Canada. It was updated by attorney Jeffrey Moeller, a partner practicing immigration and employment law at Hermann, Cahn & Schneider, LLP in Cleveland.

Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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