Canadian Payroll Reporter

3 Canadian HR Reporter, a Thomson Reuters business 2016 New York moves to regulate payroll cards Workers' advocates say state's new rules will be America's strongest to date BY SHEILA BRAWN BEGINNING IN MARCH, New York State will implement what its governor calls the "most com- prehensive payroll card protec- tions" in the United States. Governor Andrew Cuomo says the new Department of La- bor rules, which take effect Mar. 7, will not only regulate how em- ployers implement payroll cards for paying employees, they will also prohibit employers and card providers from charging work- ers a number of different types of fees for the cards. "By eliminating costly hidden fees and removing barriers to accessing money workers have rightly earned, these nation- leading regulations build upon this administration's efforts to prevent worker exploitation and help ensure all employees are treated with fairness, decency and respect," Cuomo said in a news release. Payroll cards, like direct de- posit, are a way to pay employees. Employers load an employee's pay onto a card instead of depos- iting it in the employee's bank account or giving the employee a cheque. The employee can use the card like a debit card to make purchases or withdraw amounts using an ATM. The use of payroll cards in the U.S. has increased significantly in recent years, according to a 2014 report by New York state's attorney general's office. It cites data from a Forbes magazine report estimating that in 2013, 5.8 million American workers were paid their wages on payroll cards and that that number is expected to rise to 10.8 million by next year. Employers in Canada do not commonly use the cards to pay wages. In New York state, the gov- ernment estimates that 13,000 businesses pay approximately 200,000 workers through pay- roll cards. The cards offer a number of benefits, including saving em- ployers money by reducing the use of paper cheques. They also provide a way to pay workers dur- ing weather-related disasters or when employees do not have a bank account for direct deposit payments. However, some labour, human rights and community groups have long called for governments to regulate the use of the cards, complaining that fees often asso- ciated with them hurt employees, especially low-wage workers. In addition, they say some employ- ers require employees to be paid with payroll cards, not allowing them to opt for direct deposit or payment of cheque instead. A 2014 survey by New Economy Project, New York Public Interest Research Group and Retail Ac- tion Project found that low-wage workers paid with payroll cards reported being charged multiple fees, including account inactivity, maintenance, customer service and point-of-sale fees, as well as fees to check their balances or to request paper statements. In addition, the New York at- torney general's report found that about 75 per cent of workers paid with payroll cards incurred some kind of fees for them. In some cases, fees averaged about $20 a month. It also noted that employees were often not given enough information on how to obtain their wages without in- curring fees. To try to balance business de- mand for the cards with worker concerns about them (there have been some lawsuits about the use of the cards in recent years), some states have begun to regulate their use. There are also federal consumer protection rules that Canadian HR Reporter, a Thomson Reuters business 2016 News CPR | November 2016 see CHANGES page 8 Subscribe today! $169 per year! 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Online at www.hrreporter.com/subscribe Email carswell.customerrelations@thomsonreuters.com Access a sample issue now at: bitly.com/CHRR-FreePreview PM40065782 RO9496 June 1, 2015 INSIDE SERVING UP SUSHI City of Richmond casts a wide net in building the perfect wellness program for employees Orange crush What the stunning victory by the NDP in Alberta means page 3 No-pay list Worker asks for pay, boss calls him a terrorist page 5 Rotten apples Dealing with the 5 types of attitude problems at work page 19 page 13 Emplo y ment Law Today Canad a ian www.employmentlawtoday.com www.EmploymentLawToday.com Expert opinions from the best employment lawyers in Canada CELT1504-2015 ad.indd 1 2015-01-09 11:07 AM Bad behaviour, zero tolerance Employers less gun shy about terminations for off-duty conduct BY SARAH DOBSON THE TSUNAMI that is social media could mean employers are being faster, more decisive — and harsh — when it comes to employ- ees' off-duty behaviour, as seen with a recent incident in Toronto. Several soccer fans were cap- tured on camera at a Toronto Football Club (TFC) game in May making derogatory comments to- wards a female news reporter. e men were continuing a viral trend that's spread in several countries of people yelling offensive state- ments during live broadcasts. When CityNews reporter Shauna Hunt confronted two men about it, they called it "hilarious," "amazing" and "substantial." But one of the men, Shawn Simoes, was fired from his $106,000-a- year-job at Hydro One almost as soon as the story hit the airwaves. Simoes was an assistant network management engineer/officer, ac- cording to Ontario's Sunshine List of public sector employees making more than $100,000. His employer said he violated its code of conduct. "Respect for all people is in- grained in the code and our values. We are committed to a work envi- ronment where discrimination or harassment of any type is met with zero tolerance," said Hydro One on Twitter. As with any emerging issue, there was a lot of conflicting ad- vice as to what to do, said CEO Carmine Marcello in an interview with the National Post. "But, at the end of the day, it was a pretty simple decision. We just quite frankly looked at who we are, what our core values are, and we made a values-based decision and decided we couldn't condone that kind of behaviour. We had to send a clear message to the employee and, quite frankly, to our employee base, and made a decision to ter- minate him." The situation follows closely on the heels of the Jian Ghomeshi scandal at CBC, where the former on-air host was fired in 2014 after allegations of sexual assault. "I'm sure Hydro One was sensi- tive to that and wanted to be seen as acting decisively," said Bill Gale, a partner at Grosman, Grosman & Gale in Toronto. There was a time when this kind of off-duty behaviour may not have registered the same way, but court decisions have made it clear these types of cases are go- CityNews reporter Shauna Hunt speaks to Shawn Simoes at a Toronto Football Club game in Toronto on May 10. Simoes was subsequently fired by Hydro One, suggesting employers have less tolerance for off-duty behaviour. Credit: CityNews Toronto SITUATIONS > pg. 9 No cure-all for sick notes Court reaffirms HR can ask for 'better' sick note BY LIZ BERNIER GOING to the doctor to get a sick note is no picnic for employees — the added administrative task for an already-ailing worker may seem overly prescriptive. But employees often are sent back to secure a "better" doctor's note if the first one is considered sparse on detail. at was the case in a recent Federal Court of Appeal case, Western Grain By-Products Storage Ltd. v. Donaldson, which found the employer was entitled to a more detailed sick note than the original two-liner because it stated simply the employee was "now ca- pable of returning to his job." The employee, absent for 25 weeks, was required by his em- ployer to present a better doctor's note "as to his fitness level in rela- tion to his duties and the work en- vironment" before he would be al- lowed to return to work. e Fed- eral Court of Appeal found it was reasonable for the employer to re- quire such additional information. How much information? Employers asking for more de- tailed medical notes is actually fairly common, said Kevin Chap- man, director of health policy and promotion at Doctors Nova Scotia in Dartmouth, N.S. "We get that a fair bit, actually. One of the things we get every now and then, for example, is a return- to-work kind of thing, and duty to accommodate… we get a lot with workers' compensation, for exam- ple, or somebody who has been on short-term disability," he said. But there's always tension in- volved in employee medical infor- mation and requests for that infor- mation, said Matthew Curtis, an associate at Dentons in Toronto. "And the tension is the legal is- sues that arise from privacy law and human rights law, as well as an employer's obligations under workplace safety," he said. "When it comes to requesting employee medical information, an employer needs to be very careful about how they request that information." Generally speaking, an employer is within its rights to ask for medi- cal verification that an employee who has been off for some time is fit to return to work, said Hen- drik Nieuwland, partner at Shields O'Donnell MacKillop in Toronto. "Typically, that is legally per- missible under the procedural obligations under the duty to PHYSICIANS > pg. 11 Family status and teacher strikes Recent court decisions could mean employers have to be more flexible in accommodating working parents BY SARAH DOBSON TEACHER STRIKES seem to be an increasingly common oc- currence. ey struck last year in British Columbia, with a strike stretching from mid-June to mid- September. And this year, they've been rolling out in Ontario, starting with secondary schools and, more recently, elementary ones. So what does this mean for em- ployee accommodation when it comes to parents with kids? Re- cent court decisions suggest em- ployers could be on the hook more so than in the past. "We're seeing a change, let's say an evolution, in our society that's making the needs of the family more interwoven into the fabric of society, so that the workplace is needing to accept and bend the rules a bit more than it used to," said Nancy Shapiro, a partner at Koskie Minsky in Toronto. Employers will have to step up more, according to Robin Gage, a partner at Underhill Gage Litiga- tion in Victoria. "New case law certainly will put a bit more onus on them to at least PROVINCIAL > pg. 10

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