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Communicating with employees during a union campaign • Are “use-it-or-lose-it” vacation policies legal in Ontario?

Communicating with employees during a union campaign

Question: In Ontario, after a union campaign has begun, is it a violation of Ontario’s Labour Relations Act for an employer to have a “captive audience” meeting with an employee?

A captive audience meeting is one in which the employee is summoned to attend by the employer during work hours, the employee continues to get paid throughout the meeting and it is unlikely, because of management’s knowledge of such a meeting, the employee has the ability to refuse attendance.

In Ontario there is no prima facie violation of the Labour Relations Act, 1995, with respect to an employer holding a captive audience meeting during a union campaign.

There is no true difference in rules guiding employer communication at the workplace in general and employer communication in a captive audience meeting. In either setting the board determines the legitimacy of the employer communication by whether or not the true wishes of the employee are still likely to be ascertained following the communication.

An employer is, of course, free and entitled to express its views with respect to the union and the organizing campaign as long as it does not use coercion, intimidation, threats, promises or undue influence.

But captive audience meetings are considered to provide a more effective way to influence an employee’s decision to exercise his statutory right to form a union than regular employer-employee interactions in the workplace.

Therefore the general workplace restrictions on an employer’s freedom to express his or her views without coercion, threats, promises, or undue influence, as set out in s. 70 of the Labour Relations Act, are heightened in a captive audience setting.

Conceptually the rules of unfair labour practice are the same in a captive audience setting but the employer’s right to communicate during a union organization is viewed even more restrictively in a captive audience setting.

Furthermore, from a practical perspective, it is likely an employer will have more difficulty convincing the board it has not exercised undue influence over an employee during a captive audience meeting where there may be few or no other witnesses to the communication.

The Labour Relations Board must determine based on the facts of each case whether an employee was unduly influence by meeting with the employer. An employer who chooses to communicate with its employees during a union organizing drive, whether by way of a captive audience meeting or otherwise, is well advised to ensure there are several witnesses to the communication and all of the statements expressed by management are well-documented in case allegations of coercion, intimidation, threats, promises or undue influence by the employer arise later on.

Are “use-it-or-lose-it” vacation policies legal in Ontario?

Question: Are “use-it-or-lose-it” vacation policies legal in Ontario? For example, a vacation policy indicates an employee gets three weeks vacation accrual per year, but it has to be used by the end of the year or else they lose it. Is that legal?

All employees in Canada are entitled to a vacation entitlement along with their statutory holidays. In Ontario, employees are entitled to a minimum of two weeks’ vacation for each year of work. To be entitled to this vacation the employee has to have completed one year of employment. Ontario’s Employment Standards Act, 2000 requires employers to pay employees a minimum four per cent of their wages as vacation pay for the employees’ vacation entitlement.

Although an employer and employee may agree (so long as the agreement is approved of by the Director of Employment Standards) to forgo taking vacation time off, the employer still must pay the employee vacation pay at the legislated minimum. Therefore, while an employer can require an employee take his vacation within the year that it is earned or it is lost, the employer must still pay the employee the vacation pay to which he is entitled, regardless of whether the employee takes the vacation time or not.

Peter Israel is the head of Goodman and Carr LLP’s Human Resource Management Group. He can be reached at (416) 595-2323 or [email protected]. Address questions to [email protected].

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