Work Place Post

Highlight On The Olympics

By now, most employers will have started to consider their human resources requirements and constraints during the 2010 Winter Games. The following articles are part of our ongoing series designed to assist employers in developing strategies to manage and respond to these issues.

How to Manage a Temporary Business Closure

For a variety of reasons ranging from inability to get supplies, reduced demand for services or products, or limited access to their operations, a number of businesses are considering or are planning to shut down during the 2010 Winter Games. For employers, the question then arises: how to manage this temporary business closure without inadvertently triggering a termination and resulting severance liability?

Mandatory Vacation

One strategy for managing a temporary closure of a business is to require all employees to take vacation during the period of time the business is to be closed. Employers have the legal right to determine when an employee will take vacation, provided that the vacation is in periods of one or more weeks at a time¹. Employees may request vacation in periods of less than one week but it is the responsibility of the employer to show that the shorter time was taken at the employee's request. If an employer is considering placing all or some of their employees on vacation, it is best to provide as much advance notice as possible to avoid or minimize the chances employees will have already taken their vacation, or have purchased non-refundable travel and/or accommodation for alternate times.

If employees do not have enough accrued, paid vacation to treat the proposed business closure as paid vacation, employers may 'advance' their employees paid vacation that they have not yet accrued provided that they comply with Section 59 of the BC Employment Standards Act (the "Act"). That section prohibits an employer from later reducing an employee's annual paid vacation or vacation pay because paid vacation was advanced, unless the employee requested that he or she be allowed to take vacation in advance. Such requests also have to be in writing. Thus, without written requests by employees, if an employer does provide more paid vacation to cover the business closure than the employee has yet accrued, an employer will not be able to take such extra vacation into account to reduce future vacation obligations to that employee.

Employers should also consider the possibility those employees who requested their employer advance them paid vacation, may resign or be terminated before they work long enough to have earned the paid vacation that the employer advanced. Section 21 (1) of the Act prohibits employers from making deductions from wages, other than statutory deductions, without the employee's permission. Thus, at the time employers obtain the written requests from employees to advance them paid vacation, the request should also include a written agreement that in the event their employment is terminated before the advanced vacation is earned or accrued, that the employer is entitled to deduct the advanced vacation from final payments of wages.

Temporary Layoffs

Employers may not require their employees to take unpaid time off, or temporarily lay off their employees without the employees' consent, or unless the employer has an employment agreement or collective agreement that allows them to temporarily lay off employees. Thus any unilateral decisions by an employer to schedule unpaid time off during the Winter Olympics will be considered a constructive dismissal.

Some employers mistakenly believe that the Act authorizes employers to temporarily lay off their employees, because "temporary layoff" is one of the exceptions to Section 63 requirements for notice or pay in lieu of notice of termination. "Temporary layoff" is defined as up to 13 weeks in any period of 20 consecutive weeks. This error was recently the subject of a BC Supreme Court decision, Besse v. Dr. A. S. Matchner Inc. [2009] BCSC 131. In the Besse case the employer erroneously assumed it could temporarily layoff some of its employees and the layoff would not be considered a termination requiring it to give notice or pay in lieu of notice to the employee. When one of the employees laid off sued the employer for wrongful dismissal, the court held that in the absence of a contractual provision permitting temporary layoff, the imposition of a temporary layoff constituted a fundamental breach of the employment contract, which the employee was entitled to treat as a constructive dismissal, making the employer liable for damages for wrongful dismissal.

Thus any decision to place employees on unpaid time off for all or part of any planned business closures must be agreed to by the employee. Because the employer has onus for proving the employee consented to a temporary layoff, employers are advised to get such agreements confirmed in writing.

This article is intended to inform businesses on employer's rights and legal obligations related to planning a temporary closure of business operations for the Winter Olympics in Vancouver in February 2010. With this information, employers can consider what approach might work for the business and their employees.

1. Section 57 (3) of the BC Employment Standards Act has been interpreted to prohibit an employer from requiring an employee to take vacation in periods of less than one week.

Hiring Foreign Workers For The 2010 Winter Olympics

Given the magnitude of the upcoming 2010 Olympic and Paralympic Winter Games, many companies are facing the need to hire temporary foreign workers to meet their labour needs. There are a significant number of immigration and employment issues associated with hiring foreign workers to which employers must turn their minds.

Pursuant to the Immigration and Refugee Protection Act ("IRPA"), foreign nationals (non-Canadian citizens and permanent residents) can only work in Canada if they are authorized to do so, even if they do not otherwise need a visa to enter Canada. While there are a number of avenues available to obtain authorization for a foreign national to temporarily work in Canada, many employers are looking for expedited methods of bringing in foreign workers given the closeness of the upcoming Olympics. To facilitate this need, Human Resources and Skills Development Canada and Service Canada ("HRSDC/SC") has issued guidelines for faster processing of certain foreign worker applications if they fall into one of the following categories:

1. Primary Workforce – for employers needing to recruit foreign workers to service their labour needs for contracts awarded to them by the Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games ("VANOC") because a sufficient number of Canadians and permanent residents are unavailable; and
2. Secondary Workforce – for employers needing additional workers for the Winter Olympics because a sufficient number of Canadians and permanent residents are unavailable to meet their labour needs.

Primary Workforce Opinion Process

Companies who have been awarded contracts by VANOC to provide goods and services for the Vancouver Winter Games (master contractors) and subcontractors hired under these contractors are eligible to apply for a "Primary Workforce Opinion" to facilitate the expedited entry of temporary foreign nationals into Canada.

The Primary Workforce Opinion process is available only for certain occupations and provided that the companies wishing to hire the foreign nationals to fill the role meet specified standards with respect to items such as: wages payable to the foreign workers; transportation costs (including airfare) associated with the foreign worker's travel to/from Canada; accommodations for the foreign workers; disclosure of information to certain government agencies to address security concerns; and other issues related their employment.

There is a long list of occupations for which employers may be eligible to apply for this expedited process if they need to fill their workforce need by hiring foreign workers. The occupations fall into the following sectors:

• Management Occupations
• Business, Finance and Administration Occupations
• Natural and Applied Sciences and Related Occupations
• Health Occupations
• Occupations in Art, Culture, Recreation and Sport
• Sales and Service Occupations
• Trades, Transport and Equipment Operators and Related Occupations
• Occupations Unique to Processing, Manufacturing and Utilities

Companies wishing to qualify under this expedited process must:

1. Attend an information session provided by HRSDC/SC;
2. Submit an application for a "Primary Workforce Approval in Principle";
3. Attest that they will adhere to the Primary Workforce Opinion criteria based on IRPA Regulations;
4. Provide specific required information about the foreign workers they wish to hire; and
5. Pay the applicable work permit fees.

Once all of the above steps have been followed, foreign nationals may proceed to apply for their work permits. Those who are coming from visa-exempt countries may apply for their permits at the port of entry. There are specific supporting documents that need to be submitted as part of the application and deadlines that need to be met. Therefore, proper advice should be sought in terms of the steps to be followed by the employers, the documentation to submit and the timeline for submission of the various application forms and supporting materials.

Secondary Workforce Opinion Process

BC employers, other than those who have been granted VANOC contracts, wishing to hire temporary foreign workers to meet their labour needs for the upcoming Winter Games because they are unable to meet those needs by hiring Canadians and permanent residents may apply for a "Secondary Workforce Opinion Pre-Approval" for specific occupations.

Upon submission of the applicable application forms and supporting materials, HRSDC/SC will issue the employer a pre-approval confirmation letter. Upon receipt of the same, the employer must undertake recruitment efforts to hire Canadians and permanent residents to fill the roles. At a minimum, these recruitment efforts of the employer must comprise of posting the positions they wish to fill on the national job bank for at least 14 calendar days, ending at least one month before the work is scheduled to start. In addition, HRSDC/SC may require alternative/additional recruitment efforts on a case-by-case basis.

Next, the employer must submit to HRSDC/SC, the required information about their recruitment efforts and information on the foreign workers they wish to hire if they can't find Canadians or permanent residents to fill the role. If satisfied with the recruitment efforts, the employer's intended compliance with working conditions and standards and the labour market conditions necessitating the hiring of foreign workers, HRSDC/SC will issue a Secondary Workforce Opinion letter, a copy of which must be provided by the foreign worker to Citizenship and Immigration Canada for a work permit.

Much like the Primary Workforce Opinion process, the Secondary Workforce Opinion process also involves a series of steps and submissions that must be taken and made in a timely fashion. Employers should seek proper advice in connection with the hiring of foreign workers to fill their 2010 Winter Olympic labour needs to ensure a smooth processing of their applications.

Timeline and Additional Guidelines

The operative period for work permits, in order to allow for early arrivals to set-up for the Games and then to accommodate post-Games take-down operations, is December 12, 2009 to April 21, 2010. In addition to the above-described categories, Citizenship and Immigration Canada has issued special Work Permit Policies for selected media representatives and reporters, VANOC Secondments, athletes, team officials, National Olympic/Paralympic Committee members, International Sports Federation members and others who have been designated by the International Olympic/Paralympic Committees.

How Can We Help?

If you or an employer you know is facing the need to hire temporary foreign workers for the upcoming Winter Olympics, we can assist with any of the following:

• Identifying and advising on whether the employer qualifies for the expedited work permit processes described above;
• Assisting in the preparation of applicable application forms and submissions in a timely fashion;
• Advising on steps to be taken by employers in connection with recruitment efforts targeted at Canadians and permanent residents before foreign nationals can be hired;
• Assisting in the preparation and submission of work permit applications once a Primary Workforce Opinion or Secondary Workforce Opinion, as applicable, is issued;
• Advising on alternative methods to hire foreign workers to meet the employer's labour needs; and
• Assessing, recommending and advising on possibilities to extend and/or renew applications for foreign workers who have been granted work permits.

If you have any comments on this article, please contact the author, Pratibha Sharma, at 604.891.7719 or pzs@cwilson.com.

If you have any questions about dealing with the upcoming Olympics, be sure to contact one of the lawyers or immigration consultants in Clark Wilson's Immigration Law Group or any of the lawyers in Clark Wilson's Labour & Employment Group and we would be happy to help you.

The 2010 HR Challenge: Gearing Your Business Up for Olympic Success

By Katherine Read, The Fifth Option Consulting Inc.

With the 2010 Olympics rapidly approaching, business owners and managers are becoming increasingly aware that the Games present an intriguing array of Human Resource challenges (and opportunities). Even though the Games are only months away, an August 2009 survey by the BC Human Resource Management Association showed that 61% of respondents had either not begun to formulate their Olympics Policies or were still gathering information.

Some of the questions key leaders may now find themselves facing include:

• How will our organization cope with the transit disruptions and traffic congestion during the Games?
• How can we deal with requests for vacation time in a transparent, equitable manner?
• What can we do now to protect ourselves from the negative impacts of employee absenteeism?
• How can we keep overtime pay in check if we operate at reduced staff levels due to increased vacations?
• What measures can we take to maintain productivity while still demonstrating Olympic spirit?
• How can we protect against potential service disruptions from suppliers we rely on to operate our business?
• What steps can we take now to manage client's expectations?

We recommend addressing these questions and more by establishing and communicating an organization-wide "Olympics Policy". The first step in developing workable policies is being crystal clear on potential challenges. While there are numerous decisions company leaders must make regarding the Games, firms will be off to a good start if they consider the following four "Olympic-Level Challenges":

1. Employee availability for work
2. Productivity impacts
3. Support of key suppliers
4. Managing commitments to clients, client's expectations and service delivery

Availability for Work – Availability of employees is a critical issue to address. Many firms are grappling now with requests for vacation. What staffing levels do you need to run your business? Do you have enough "wiggle room" in case productivity levels decrease temporarily?

Travel and transit disruptions will also put businesses to the test. Suppose it takes employees an extra 2 hours to get to work. How can you ameliorate the impacts on productivity and attendance? School closures could also affect the availability for work of employees with young kids if these individuals are unable to arrange adequate child care.

What about employee's attendance at Olympic events? If it will take 3 hours to travel to an evening event, a discussion with employees now could avoid unexpected "afternoon sick leave". Sick leave could also increase if employers give so much vacation leave that remaining workers burn out from overtime.

There are no cookie cutter solutions to these challenges since each firm's situation is different. However, the recent BCHRMA survey reveals that the most popular solutions are establishing flexible hours and telecommuting.

Productivity – The experience of other Olympic cities show it is near-impossible not to get caught up in the Olympic "buzz". The Olympics offers a great opportunity for firms to build a feeling of community and teamwork. Some companies will allow access to television at work. Others may plan Olympic-themed social events. The key is to communicate to workers that while the Olympics should be fun, employees must still be productive for the business to succeed.

Suppliers – Firms are well-advised to draw up a Critical Supplier list including suppliers who are integral to the production and delivery of their product/service plus those who serve their day to day office requirements (e.g. couriers, external I.T. support etc.). Communicate with suppliers in advance to develop a plan to deal with Olympics-related challenges.

Clients – Firms may be wise to schedule product and service delivery to clients for well outside of the Olympic period (if possible). It is important to start managing commitments to clients now and setting expectations at a realistic level.

What's the bottom line? Get your house in order now. The 2010 Winter Olympics presents businesses with significant HR challenges. Set your policies. Communicate with employees, suppliers and clients. The work you do now to prepare for 2010 will allow you to engage more fully in the Olympic Spirit when we let the games begin!

The Fifth Option Consulting Inc. (TFO) has a 20 year track record helping organizations run more profitably through effective human resource management. TFO offers clients a cost effective way to obtain strategic HR expertise, customized to their needs.