Canadian Employment Law Today

STUART McKELVEY HALIFAX Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Canadian HR Reporter, a Thomson Reuters business 2015 2 | September 16, 2015 Ask an Expert Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Sharing employee ID numbers Question: Can employee identification numbers be shared with vendors on invoices or with others within the company, or would that be considered a violation of privacy? Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog includes a tool for readers to offer their comments, so discussion is welcome and encouraged. The blog features topics such as family status accommodation, workplace violence, wrongful dismissal, and cutting staff. You can view the blog at www.employmentlawtoday.com. Employee requests severance payment in different form than normal Question: If an employee requests a termination or severance payment in a different form than his normal method of payment (such as a physical cheque instead of direct deposit), does the employer have to comply? Answer: Unless the employee's employment contract (or in the case of a unionized envi- ronment, the collective bargaining agree- ment) provides otherwise, in all jurisdictions in Canada an employer is permitted to con- tinue to pay an employee his wages on termi- nation in the same fashion it previously paid the employee's wages. An employee is not entitled to require that his fi nal pay, or his termination or severance pay, be paid in an alternative manner than how he was previously paid. However, while employers maintain dis- cretion at termination regarding the man- ner in which a payment of wages is made, you may want to consider providing pay- ment of severance or termination pay in the manner the employee requests (provided the method complies with relevant employ- ment standards legislation). Particularly in contentious severance situations, agreeing to the employee's preferred method of payment may assist in resolving matters at termina- tion, thereby avoiding litigation. Moreover, in many cases it may be possible to structure severance monies paid after termination as a retiring allowance, with portions of the sever- ance deposited directly to an RRSP without deductions for tax, and/or with the retiring allowance taxed at a fl at rate for income tax, with no deductions for CPP or EI. In these cases, making such payments by cheque, rather than direct deposit, may be simpler for negotiations. In other words, fl exibility with respect to how a payment is made can go a long way to resolving a diffi cult termination. However, an employee is not entitled to require an em- ployer to provide his fi nal pay, termination pay, or severance pay by cheque, when, up to the date of termination, he had previously been receiving payments by direct deposit. Meghan McCreary is a partner practicing la- bour and employment law with MacPherson Leslie & Tyerman LLP in Regina. She can be reached at (306) 347-8463 or mmcreary@ mlt.com. Answer: Generally it will be permissible to disclose employee identifi cation numbers (created by the employer) to vendors on invoices, or to others within the company, if such disclosure is reasonably necessary for the effi cient operation of the employer's business. Except for federally regulated employers, and employers in Alberta, British Colum- bia and Quebec, there is no specifi c privacy legislation which deals with the disclosure of personal employee information in the private sector. Public sector employers, and private sector employers in Alberta, British Columbia and Quebec, as well as employers that are federally-regulated, are subject to privacy legislation respecting the collection, use and disclosure of employee personal in- formation. For private sector employers who are not federally regulated, and not operat- ing in Alberta, B.C. or Quebec, the disclo- sure of an employee identifi cation number is unlikely to be problematic. For employers in jurisdictions where pri- vacy legislation regulates the collection, use and disclosure of employee personal infor- mation, the risk of a privacy violation can be minimized by ensuring that personal em- ployee information is only collected, used and disclosed when it is reasonably neces- sary to do so to operate the business. It is always a good practice to obtain employee consent before disclosing employee person- al information. However, when it is not practical to get consent, disclosure of employee personal information will be justifi able if such dis- closure is reasonably necessary for the op- eration of the employer's business. In the specifi c case of an employee identifi cation number, it is likely that disclosure of a num- ber will be permissible when it is necessary to do so to track or identify an employee's work in the course of the business's effi cient operation. While it is likely permissible in most cas- es to disclose a company-issued employee identifi cation number, employers should take care not to disclose an employee's social insurance number without an employee's consent. Generally a social insurance number may only be properly disclosed for payroll purposes, and then only with certain confi - dentiality protections in place. Examples of other employee personal information that generally should not be disclosed includes employee birthdates, medical information, and performance records. While it is likely permissible to disclose a company-issued employee ID number, other information should not be disclosed without consent with Meghan McCreary

• Cover