Canada: BLG Labour and Employment Seminar in Review: Implications for Oil and Gas Companies
Last Updated: June 8 2015

BLG's Labour & Employment group recently held a symposium on May 13, 2015 which covered a variety of topics which are relevant to many oil and gas companies in Alberta, and across the country.

Below is a summary of the different presentations, as well as a link to the presentations:

1. Employment Law Update - The Oil Patch & Beyond: 
Duncan Marsden, BLG and Chip Galagaza, Jackson Lewis LLP 

Duncan Marsden from our Calgary office, and Chip Galagaza, from the Houston office of US law firm Jackson Lewis, presented an update on some of the current developments in drug and alcohol policies, the use of consultants and the risks of employees using their devices from a Canadian and US perspective.

The primary issue with respect to drug and alcohol testing is balancing the competing interests of employee privacy with employer health and safety obligations. Additionally, where addiction may be the cause of drug or alcohol abuse, human rights legislation and the duty to accommodate may become relevant considerations.

The presentation also focused on the use of consultants (independent contractors) and the potential ramifications for employers if an individual is considered an employee rather than a contractor. This is especially relevant in the oil and gas industry where independent contractors are widely used. While a title may be evidence of an individual's status, companies should be aware that Courts will often look into the nature of the relationship to determine if someone is truly an independent contractor. There have also been some developments in Canadian law where courts have recognized a third category of 'dependent contractors' which are entitled to reasonable notice.

There was also a discussion around allowing employees to use their own devices (i.e. smart phones, tablets, lap tops, etc.) and the potential risks to employers. An important take-away for employers is to develop and implement a comprehensive policy which outlines authorized device use, the right to  monitoring, discipline for policy violation, and a detailed plan in case a breach occurs.

2. Investigations: 
Laurie Robson and Kamini Dowe, BLG 

Laurie Robson and Kamini Dowe also presented on workplace investigations from three different perspectives: occupational health and safety, human rights and employment standards. To mitigate the risks of non-compliance under any of the applicable statutes and be prepared for an investigation should it occur, employers can implement a number of policies – namely, safety, respectful workplace and a code of conduct – to ensure that they are meeting the obligations under the legislation.  The presentation also discusses the availability of a due diligence defence under the Occupational Health and Safety Act, and the steps that an employer can take to successfully raise this.

3. Employment Law in a Challenging Economy: 
Brian Portas and Andrew Pozzobon, BLG 

Brian Portas and Andrew Pozzobon presented on 'Employment Issues in a Challenging Economy.' The presentation addressed issues with constructive dismissal, specifically in light of a number of companies undergoing layoffs, restructuring and redeployment of employees. The Supreme Court of Canada recently clarified the test for constructive dismissal in Potter v New Brunswick Legal Aid Services, however given that it is a highly fact-driven exercise, there may be further developments in the law to deal with cases where economic downturn is a primary factor motivating the changes in a workplace.  The presentation also touched on employment standards provisions surrounding mass layoffs or terminations and the notice requirements for employers.

4. Top 10 Cases in Labour and Employment 2014/2015
Christine Dowling, BLG

Christine Dowling also presented a review of the Top 10 cases in labour and employment for 2014 and 2015. The presentation covered a broad range of topics including: the latest on restrictive covenants, limits on the duty to accommodate, and recent developments in the areas of constructive dismissal and the right to strike following landmark decisions from the Supreme Court of Canada earlier this year.

For more information on each of these topics, please CLICK HERE.

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