Canadian HR Reporter

Canadian HR RepoRteR September 8, 2014 employmeNT law 5 Tom Gorsky and Andrew Ebejer Legal View Register online: www.conferenceboard.ca/HRworkshops The workshops focus on key topics that Human Resources leaders need to master to help drive productivity and organizational performance. Building Mentally Healthy Workplaces Ottawa–January 28, 2015; Vancouver–March 3, 2015; Calgary–March 5, 2015; Toronto–April 15, 2015; Halifax–April 29, 2015 Human Resources Measurement and Scorecarding Vancouver–September 30, 2014; Edmonton–December 2, 2014; Ottawa–February 3, 2015; Regina–April 15, 2015 You will have an opportunity to: • hear the latest Conference Board research • get personalized help from experts who can assist in addressing your organizations' specific HR challenges • network with peers—share approaches, insights, and challenges Save $100 until September 30, 2014! FREE DOWNLOAD! Leverage the strengths and skills of your workforce—learn the dynamics of knowledge transfer. Bridging the Gaps: How to Transfer Knowledge in Today's Multigenerational Workplace outlines 15 methods for facilitating the flow of information and insight from those who have it to those who need it. Download your FREE copy today (valued of $695) at www.e-library.ca. Conference Board's New HR Workshops . Labour board serves up shocker to McDonald's Finds franchisor potentially liable for employment practices of franchisees at the end of July, the general counsel of the National labour Relations Board in the United states ruled that mcDonald's could be held liable as a joint employer in 43 wage and labour complaints re- lated to the operations of independent franchises. is procedural ruling has the po- tential to radically undermine the employment-related advantages of franchising in the U.S. Mc- Donald's had historically avoided liability for its franchises' employ- ment practices by giving each franchisee control over working conditions and age rates. If the general counsel's ruling is upheld, workers employed by more than 12,000 McDonald's franchises in the U.S. could be deemed to be direct employees of McDonald's — opening the fast food giant up to potential employ- ment-related liability and even a national unionization drive. e Canadian question e question for Canadian fran- chisors in the wake of this ruling is: "Could this happen to me?" Unless proper precautions are taken, the answer is, "Yes, it can." Canadian courts, employment standards adjudicators and hu- man rights tribunals have been receptive to the possibility of im- posing liability on a franchisor for the actions of its franchisees. Generally, the greater the level of control exercised by a franchisor over the actions of a franchisee, the more likely the franchisor may be jointly liable. e three areas of control most commonly considered are: Labour and employee relations: Day-to-day control over staffing levels, hiring, firing and perfor- mance reviews; administration of employee benefits; and directing collective bargaining. Management and direction: Providing training manuals, operational guides and personnel policies; frequent audits of fran- chisee financial books, inventory and premises; and provision of mandatory management training, support and advice. Financial: Setting retail prices for products; requiring the pur- chase of products from an ap- proved supplier; providing financ- ing and guaranteeing loans; nego- tiating leases or setting rent; and limiting the ability of a franchisee to sell or transfer the franchise without consent. By way of example, earlier this year, McDonald's Restau- rants of Canada and a franchi- see were named as co-respon- dents in a complaint before the opeRaTIoNal > pg. 18 Credit: Sam Mircovich (Reuters)

• Cover