Several changes to the New Brunswick Employment Standards
Act became effective on September 1, 2014. Three of
these changes created new employee entitlements (and corresponding
obligations on employers).
New protections for foreign workers
Employers who recruit, or who engage others to recruit workers
who are not citizens or permanent residents of Canada are now
required to register with the Director of Employment Standards on a
yearly basis, and provide specific information regarding the
employer, the foreign worker(s) and the nature of the position(s)
to be filled by foreign workers.
Employers (or recruiters on their behalf) may not:
require foreign workers to use immigration consultants as a
condition of employment;
recover the costs of recruiting foreign workers from foreign
workers unless such recovery is allowed by the recruitment
reduce wages or benefits or change the terms or conditions of
employment after recruiting a foreign worker;
misrepresent the position to be filled by a foreign worker, the
duties of the position, the length of employment, wages, benefits
or terms and conditions of employment, or supply false or
misleading information about employer/employee
take possession of or retain a foreign worker's property,
including his/her passport or work permit;
refuse to allow foreign workers to vacate employer-provided
accommodations, if such accommodations are provided; or
threaten foreign workers with deportation or any other action
for which there is no lawful cause.
New unpaid leave provisions
The Employment Standards Act provides for several types
of unpaid leave for employees, and as of September 1, 2014, it
provides for two more leaves.
Critical Illness Leave
An employee who is a parent of a critically ill child is
entitled to a leave of absence without pay of up to 37 weeks to
care for the child, provided a qualified medical practitioner has
issued a certificate stating that the child is critically ill and
requires the care or support of one or both parents for a
designated period of time.
Death or Disappearance Leave
An employee who is a parent of a child who has died or who has
disappeared, and it is probable that such death or disappearance is
the result of a crime, is entitled to a leave of absence without
pay of up to 37 weeks. The employee is not entitled to such
leave if he/she is charged with the crime.
In the case of both new leaves of absence, if both parents are
employees of the same employer, the total combined leave of absence
may not exceed 37 weeks.
Directors' liability for unpaid wages and vacation pay
In cases where the Director of Employment Standards has ordered
a for-profit corporate employer to pay an amount representing
unpaid wages and/or vacation pay owing to an employee, a director
or former director of the corporation is jointly and severally
liable with the corporation to an employee or former employee
up to 6 months' unpaid wages that were earned or became
payable while the person was a director; and
up to 12 months' unpaid vacation pay that accrued or became
payable while the person was a director.
Note that a director of a for-profit corporation may escape
liability if he/she exercised "reasonable diligence" to
provide for the amounts owing, and further, such a director only
becomes liable to pay if the ordered amount remains unpaid by the
corporate employer for at least 30 days, and if at least 30
days' notice of personal liability has been provided to the
Codification of practice regarding electronic pay stubs
Although this new provision does not create new employee rights
or employer obligations, it clarifies the question surrounding the
propriety of providing electronic pay stubs in place of paper
copies. The provision reflects the way the Employment
Standards Branch has treated this issue for some time, and states
that an employer may provide electronic pay stubs to its employees
as long as the employer also provides employees with confidential
access to the electronic pay stubs at the place of employment.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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