On February 1, 2017 the Ontario Human Rights Commission (the “OHRC”) published guidance for employers on the type and scope of medical documentation needed to support a disability-related accommodation request. The OHRC policy position can be accessed here (the “OHRC Policy”).

While employers generally do not have the right to know a person’s confidential medical information, such as the cause of the disability, diagnosis, symptoms, or treatment, employers may be entitled to this information if it clearly relates to the accommodation being sought. The OHRC Policy addresses this issue and aims to provide guidance with regards to vague medial notes and employer requests for person medical documentation that goes beyond what is necessary to support an accommodation request.

The OHRC Policy cites the OHRC policy on accommodation that provides guidance on what the medical documentation used to support an accommodation should state. The documentation should state

• that the person has a disability;
• the limitations or needs associated with the disability;
• whether the person can perform the essential duties or requirements of the job, of being a tenant, or of being a service user, with or without accommodation; and
• the type of accommodation(s) that may be needed to allow the person to fulfill the essential duties or requirements of the job, of being a tenant, or of being a service user, etc.
• in employment, regular updates about when the person expects to come back to work, if they are on leave.

If an employer requires more information in order to make an informed decision about the accommodation, they must acquiring the information in a manner that is the least intrusive of personal privacy. Additionally, the focus of any documentation should always be on the functional limitations associated with the disability, rather than a person’s diagnosis.

Handling accommodation requests correctly is essential. While the OHRC policy is informative, it is not guidance on how to handle an accommodation request. It is advisable that charities contact an employment lawyer to assist with any accommodation request that your organization may receive in order to avoid potential liability.

The post The Ontario Human Rights Commission Provides Guidance on Medical Documentation and Accommodation appeared first on CCCC Blogs.

A common issue faced by charities is how to properly classify individuals as either employees or independent contractors. Courts refer to the distinction as contracts “of service” (employee) versus contracts “for services” (independent contractor). Whatever you call it, the determination of whether an individual is an employee or an independent contractor is important to get correct. Whether one is an employee or an independent contractor is fact specific and the determination must be completed on a case by case basis. It is advisable to seek legal advice when making this determination.

Why is the distinction important?

Employees and independent contractors are treated differently with respect to various rights and obligations. Employees enjoy some rights on termination. They also enjoy certain entitlements under employment standards legislation such as overtime pay, minimum wage, and paid vacation which are generally not enjoyed by independent contractors. Furthermore, employers are generally obligated to make various source deductions and remit payments respecting income tax and workers’ compensation amounts.

What’s the Problem?

Organizations are attracted to the cost savings and increased flexibility contractors offer. Organizations commonly intend to create a independent contractor relationship to avoid the costs and liabilities that are seen to come with an employment relationship. Problems arise when the relationship suggests an employee employer and not an independent contractor relationship.

Often, individuals who become independent contractors do not fully understand the consequences of doing so. Individuals are rarely informed and seldom understand the consequences and obligations of not being classified as an employee. Being classified as an independent contractors means that an individual can be responsible for, among other things, EI, CPP, Worker’s Compensation, insurance, and other potential liabilities.

Getting the classification wrong can result in the organization paying past source deductions, remittances, penalties or wrongful dismissal damages. This is exactly what happened in the recent Tax Court of Canada case Sistema Toronto Academy Inc. v MNR that reinforces the principle that charities should not merely rely upon their subject intention to create an independent contractor relationship, but ensure that their conduct demonstrates that an independent contractor relationship is created.

The Issue

In this case, the Minister of National Revenue ruled that Sistema was responsible for various payments as the result of the determination that its instructors were engaged in “insurable and pensionable employment”, within the meaning of paragraph 5(1)(a) of the Employment Insurance Act and paragraph 6 (1)(a) of the Canada Pension Plan. The issue the court considered was whether the instructors were engaged under a contract of service (as employees) or a contract for services (as independent contractors) during the periods covered by the rulings.

Material Facts of the Case

Sistema Toronto Academy Inc. (“Sistema”), a registered charity, provided free after-school music instruction to disadvantaged youth in elementary schools in Toronto.  Sistema engaged professional musicians to provide musical instruction on behalf of the charity. In 2011, instructors were hired as employees, which was clear from the employment agreement. In September 2012, Sistema decided that newly hired instructors would work as independent contractors. The only material difference in how the two groups of instructors were treated was respect to source deductions. Instructors engaged in September 2012 or later did not have source deductions taken from their pay, while those hired prior did.

In 2014 the engagement letter for instructors was modified to clarify that the instructor were independent contractors, which was signed by several of the instructors. The revised engagement letter modified the following terms of the agreement:

• The term “employment” was changed to “engagement”
• Sistema no longer agreed to pay the instructors vacation pay and for statutory holidays
• Sistema no longer agreed to pay severance pay and to provide notice of termination
• The instructors were required to use their own instruments
• The revised letter specifically set out that no taxes or other source deductions would be taken and that the instructors were required to determine their obligations for HST
• Restriction on taking other work that might conflict with the instructors’ duties was removed

Despite these changes very little in the relationship between Sistema and the instructors changed. The following factors were noted by the court as relevant to its determination.

• instructors were required to provide their services four times a week at 3:45 and were not flexible in scheduling their work.
• Sistema set the repertoire of pieces to be played.
• Some instructors submitted lesson plans during the material times.
• Instructors were responsible to set the curriculum for the students but Sistema held a meeting for the purpose to develop a common curriculum.
• Sistema required the common use of terminology for students.
• Ad hoc meetings were held each week to relay information to instructors.
• Sistema held professional development workshops
• The instructors were subject to informal evaluations and random classroom visits
• If an instructor was unable to teach a class he was required to contact the centre coordinator

 The “Fourfold Test” Applied by the Court

The Court first examined the express intention of whether the parties intended to create an independent contractor relationship. The Court then proceeded to examine the parties’ conduct to determine the actual nature of the parties’ relationship. The Court applied the “control test” factors that were set by the Supreme Court of Canada in the cases Sagaz in assessing the parties’ conduct. The control test examines who controls the work and how, when and where it is to be done.  In theory, if the worker has complete control over the performance of his work once it has been assigned, it might qualify the worker as an independent contractor.  On the other hand, if the employer controls the performance of the work or has the power of controlling the way the employee performs their duties the worker may be an employee.

The Court noted that in the case of specialized employees, which was the case here, the “control test” is insufficient and the “fourfold test” should be applied. The “fourfold test” realizes the same end as the “control test” through examining the below factors in determining whether the relationship is more akin to an employment or independent contractor relationship. They factors are:

1. Control (i.e. the “control test”);

a. The employer’s power of selection of the employee;
b. Whether the employer paid wages;
c. The employer’s right to control the method of doing the work; and
d. The employer’s right to suspend or dismiss the worker.

2. Ownership of tools;
3. Does the individual have a chance of profit; and
4. Who bears the risk of loss?

 The Court’s Conclusion

The Court concluded that even though the parties may have intended to create an independent contractor relationship the instructors were more accurately engaged under a “contract of service” and were employees. The Court considered the degree of control exercised by Sistema, or the right to exercise control over the instructors, to be more consistent with an employment relationship. The acquiescence or acceptance to having no source deductions made was not convincing evidence to the Court that an employment relationship was not intended. Sistema was therefore liable to the Minister for the unpaid source deductions.

What this Means for Charities

Charities should be cautious when making the determination as to whether an individual is an employee or an independent contractor as significant financial consequences may flow from an incorrect characterization. Charities should be wary of ignoring the objective reality of the relationship and falling into the trap that thinking an intention to create an independent contractor relationship is sufficient. Legal counsel can assist in drafting adequate agreements and establishing proper practices so risk is mitigated.

The post Employee vs Contractor: Do You Classify Correctly? appeared first on CCCC Blogs.

Accessibility head puzzle concept

Upcoming accessibility deadline of January 1, 2017

When Ontario’s next set of accessibility requirements come into effect on January 1, 2017 will your charity be ready?  Are you compliant with the accessibility requirements that are already in effect?  If not, now is the time to begin working towards compliance with Ontario’s accessibility laws.

In keeping with the province’s commitment of becoming fully accessible by 2025, the deadline of January 1, 2017 will bring with it important requirements that every charity in Ontario needs to be aware of.  For full details of what is required to comply with the legislation, charities should consult the Integrated Accessibility Standards (IASR).

The province also maintains a webpage called accessibility rules for businesses and non-profits that takes a more plain language approach in helping employers to understand their obligations under this legislation.  This webpage is one that every charity should have bookmarked as it explains the rules associated with each accessibility deadline.  The relevant links for the deadline of January 1, 2017 are provided below:

Charities with 1-49 employees will need to:

Make your public information accessible when asked (Work with the person to figure out how to meet their needs as soon as possible; and

Make your employment practices accessible (This includes how you hire, retain and provide career development opportunities to all your employees)

Charities with 50 or more employees will need to:

Make new or redeveloped public spaces accessible

• Recreational trails and beach access routes
• Outdoor public use eating areas
• Outdoor play spaces
• Public outdoor paths of travel
• Parking lots
• Service counters
• Fixed waiting lines
• Waiting areas with fixed seating

Employment practices will require special consideration

Charities that have at least one but fewer than 50 employees in Ontario (defined as “small organizations” in the IASR) will want to pay particular attention to the requirement of making their employment practices accessible.  While meeting these requirements does not need to be difficult, most charities will need to update their employment practices to comply with the legislation.

For example, as of January 1, 2017, all “small organizations” will be required to[A]:

• (When advertising jobs) Notify their employees and the public about the availability of accommodation for applicants with disabilities in its recruitment processes; and
• Notify job applicants when they are individually selected to participate in an assessment or selection process, that accommodations are available upon request in relation to the materials or processes to be used; and
• Notify the successful applicant of its polices for accommodating employees with disabilities when making offers of employment

Key accessibility resources for charities

The employment standard module provided by AccessForward is an excellent resource (it’s also free!) that describes how organizations can make their employment practices accessible.  The module is available in a variety of formats, and the video format only takes about twelve minutes to view.  If you are responsible for creating policies and procedures in your organization, and haven’t already taken this module, it can also be used towards meeting the requirement of training your staff on Ontario’s accessibility laws, which is already in effect.

Beginning in the fall of 2016, Ontario’s Accessibility Directorate will be publishing a monthly newsletter called the AODA Toolbox which contains lots of great accessibility related information that charities are sure to find helpful.  More specifically, the newsletter will focus on:

• Current and upcoming accessibility requirements and deadlines
• Tools and resources to help you comply
• Upcoming webinars and events

For those of you on Twitter, I would also highly recommend following @ONAccessibility for timely news and information on accessibility from the Government of Ontario.  I have found this to be a great way to keep up with some of the great work that is happening in the accessibility space, such as the Employer’s Toolkit: Making Ontario Workplaces Accessible to People With Disabilities, 2nd Edition developed by the Conference Board of Canada.  This resource includes a number of free Word document templates that can be customized to meet the needs of businesses and non-profits.

Accessibility means more than just compliance with the law

Thanks to mobile apps and websites such as Planat, it is becoming easier for the public to rate businesses and non-profits on how accessible they are in providing goods and services.  With one in seven Ontarians having some kind of a disability[B] this development is not insignificant.  When considering where to attend Church, or which Christian charities they want to work at or financially support, members of this growing demographic will naturally be drawn to the organizations that make accessibility a priority.

Never a better time to get started

Achieving compliance with Ontario’s accessibility laws is not difficult, but it does require thoughtful consideration and a willingness to incorporate a mindset of accessibility into all that we do.  While deadline of January 1, 2017 is quickly approaching, there is still time for charities to familiarize themselves with these requirements, and take the necessary steps to achieve compliance.  With so many great free resources available to charities, there has never been an easier or better time to get started.

[A] Integrated Accessibility Standard (O Reg 191/11 s 22-24)

[B] https://www.ontario.ca/page/people-disabilities

The post January 1, 2017: Is your charity ready for Ontario’s next accessibility deadline? appeared first on CCCC Blogs.

Man walking down road

How common are exit interviews in Christian ministry?

I recently attended a conference where a number of Christian charity leaders were asked if they conducted exit interviews.  What stood out to me was that less than a quarter indicated they would conduct an exit interview if one of their team members were to leave their ministry. From my conversations with other CCCC members I know that while some of them do conduct exit interviews, many Christian charities tend to underutilize this important tool.

Just what are exit interviews exactly?

Exit interviews are an opportunity to connect with the outgoing employee and better understand their reasons for leaving, and what, if anything, the employer can do to make the work environment a better place.  The value in exit interviews isn’t in individual responses, but rather the overall trends and themes in what departing employees are saying as they leave.  For example:

• Is there another employer that the charity is consistently losing good people to?  What are they doing (or not doing) that is attracting good people?
• Is there a demographic (e.g. employees with less than 2 years service) that is experiencing particularly high turnover?
• Are employees not feeling supported in their desire to learn and grow professionally and spiritually?

Charities that can identify the top 2 or 3 reasons why people choose to leave their ministry will be in a much better position to action this information in meaningful ways.

Practical application of exit interviews

Exit interviews usually include a number of demographic (e.g. department, tenure, role) and open ended questions (e.g. primary reason for leaving) that departing employees are asked prior to, or soon after leaving an organization.  Charities that conduct employee engagement surveys may want to include some of those questions, if there is a particular area the charity is focused on improving.  For example, if a charity is working on improving organizational communication, the exit interview can become another metric for evaluating the effectiveness of initiatives in that area.

It is usually a good idea to begin the exit interview by letting the employee know that their responses will be kept confidential, unless the interviewer has a reporting obligation, such as in the case of workplace violence/harassment or a breach of ethics.  It may also be appropriate to share something back with the employee’s manager if it is constructive or affirming, but only if the employee is comfortable with it and has provided their consent.

As much as possible the questions and format of these interviews should be structured in a way that asks departing employees the same questions, in the same order and in the same way.  A structured approach to exit interviews means increased confidence in the validity of any inferences that are drawn from exit interview data.

Given the sensitive nature of this information, exit interviews should be stored in a secure (e.g. password protected) manner that is consistent with the charity’s IT and record retention policies.

Common reasons for not conducting exit interviews

Here are some of the more common reasons that leaders give for not conducting exit interviews:

1. Departing employees don’t tend to share their real reasons for leaving the organization
2. If God is leading the employee to something different, what more is there to know?
3. Departing employees who choose to share may be overly critical in their responses
4. Knowledge gap – I don’t know how to conduct an exit interview or what to do with the information that is collected

Lets take a look at each of the above points and see if it makes sense for Christian charities to conduct exit interviews.

1. Departing employees don’t tend to share their real reasons for leaving the organization. Employees usually won’t be as open in sharing if they don’t understand how the information will be used, or if they feel being candid will limit their chances for a reference or re-employment down the road. The interviewer should be able to overcome these challenges by assuring the employee that every organization has areas where it can improve, and that it is in this spirit these questions are being asked.  Confidentiality should be addressed at the beginning of the conversation, and if the charity does not have a HR professional on staff, it may make sense to have a leader other than the one the employee reports to, conduct the exit interview.
2. If God is leading the employee to something different, what more is there to know?  In Christian ministry, when an employee gives their notice of resignation, the reason sometimes includes that God is leading them in a different direction.  This may cause some ministry leaders to think that an exit interview isn’t necessary, however the departing employee will still likely have some constructive feedback or insights to provide. Interviewers may want to probe a little further here to ensure the reason given isn’t masking an underlying problem (e.g. not feeling challenged in role, organizational stability etc.).
3. Departing employees who choose to share may be overly critical in their responses. My experience has been that very few employees actually fall into this category and wouldn’t be enough to skew the charity’s overall exit interview results.  Departing employees usually want to leave well and will offer their perspective if trust exists and they feel it may result in positive change.  While exit interview data shouldn’t be weighted as heavily as employee engagement results, exit interviews should not be overlooked as an important source of information.
4. Knowledge gap – I don’t know how to conduct an exit interview or what to do with the information that is collected.  Conducting exit interviews is definitely something that charity leaders can and should learn to do well.  Leaders that incorporate the best practices from this blog post will be well on their way to effectively conducting exit interviews.  Charities should look for ways to identify the overall trends and themes in the exit survey data to complement their employee engagement surveys and any other metrics they may have around employee engagement.  This higher level data can be put into a dashboard or report and provided to the charity’s senior leadership or board of directors.

Closing thoughts

In a world of social media, we rate everything from the food at our favourite restaurants, to the coffee maker we bought our spouse for Christmas (glad I read the review!) and even our experience at the family doctor.  Employers are not immune from this, and departing employees, particularly ones that feel disenchanted about their employment experience, tend to be the most vocal when taking to social media sites like Glassdoor and Rate My Employer.  For this reason, my next blog posts will focus on the topic of employee engagement and what charities can do to engage the hearts and minds of their employees.

While conducting exit interviews won’t change what departing employees say about your charity on social media, they can definitely provide some valuable and actionable insight into why people are choosing to leave your ministry and how to make your work environment a better place for everyone.

The post Before you leave…conducting exit interviews appeared first on CCCC Blogs.

People talking over coffee

Are one-to-one conversations part of your leadership tool kit?

Great leaders understand the value of having regular one-to-one conversations with their direct reports. Making time for these discussions sends a powerful message that leaders care about their people and are committed to enabling each team member to perform at their best.  There really is no substitute for the kind of rich conversation that can result if one-to-one’s are done well, and there is much leaders can do to create an environment where this happens.  Before we discuss what leaders can do to set the stage for meaningful one-to-one conversations, lets take a look at some of the benefits that come out of having these regular touch points with staff.

Three benefits of conducting one-to-one’s with your staff

1. Opportunity to reflect on recent happenings –  Leaders might frame this in the question of: ‘what is going well, and what isn’t going so well?’.  This kind of open ended question can lead to many possibilities including coachable moments where leaders can help employees to stretch and develop their problem solving skills.  These conversations are also a natural conduit for leaders to encourage others in their professional and spiritual development. An added benefit is that leaders will get a sense of whether or not staff are aligned with the broader goals and objectives of the charity.
2. Strengthens working relationships and rapport –  Active listening skills can help leaders to build credibility with their staff in that they truly ‘get it’ when it comes to the challenges and opportunities they encounter in their lives and day to day work.  For example, leaders may be able to connect employees struggling with mental health issues with resources (e.g. Employee Assistance Programs) sooner, potentially reducing the amount of lost time from work.  As Christians, leaders have the opportunity and privilege to also use this time to pray with staff members over specific needs and concerns they may be struggling with.
3. Detect and action employee disengagement sooner – A Gallup poll in 2014 found that just over 31% of workers in the United States were engaged in their jobs.  That means that almost 70% of those employees were either not engaged or actively disengaged in their work!  Having regular one-to-one conversations gives leaders an opportunity to pick up on lack of employee engagement sooner and the chance to do something about it.  For millennial employees it could be as simple as giving them the opportunity to work on something they find interesting and challenging.

Setting the stage for meaningful one-to-one conversations

Openness and transparency

One-to-ones provide a means for leaders and employees to pro-actively understand how each prefers to give and receive feedback, equipping both parties with tools for navigating conflict and relational challenges when they arise.  Leaders that are open and transparent about how they prefer to give and receive feedback, and take the time to learn about the work styles of their employees, will spend less time navigating relational challenges and more time advancing the charitable purposes of their organization.

Make the time

It can be all too easy to allow the urgency of the day to keep one-to-one conversations from happening, and while this is sometimes unavoidable, leaders who schedule the time are much more likely to follow through and make these touch points a priority. If a meeting needs to be cancelled, immediately re-scheduling signals to staff that their leaders continue to see this time together as important.  Choosing a meeting location where you won’t experience any interruptions and resisting the urge to check your smartphone allows leaders to really be present in the moment.

Introducing one-to-ones to your charity

The best time for leaders to introduce one-to-ones is when a new employee joins the organization. While there is no one standard when it comes to length and frequency, consider the length of time between conversations if a meeting gets missed, and plan accordingly.  Most of the leaders I have worked with tend to favour shorter more frequent meetings over longer meetings that are spaced further apart.

If one-to-ones are new to your organization, employees may need some help to get a feel for what these meetings are all about.  From this perspective, leaders will often have several open ended questions they can ask to help get the conversation going.  Here are a few that may help to get you started:

• What gets you out of bed in the morning?  Is there something you are working on that you feel particularly passionate about?
• What is it that keeps you excited and engaged in your work at our charity as opposed to deciding to work somewhere else?
• Where would you like to grow and develop professionally and spiritually over the next year?
• Are you encountering any roadblocks in your work that you need my help with?

Closing thoughts

Leaders that don’t conduct regular one-to-ones with their staff may be unintentionally operating with a blind spot and will not be as effective in their roles as those who make this practice a priority. These conversations allow leaders to understand and tap into what truly inspires and motivates their team members.  While there may be times when there is nothing new to discuss, this is usually the exception to the rule, as most employees (especially those working remotely) truly value having this time with their leaders.  One of the greatest legacies a leader can leave behind is that of enabling and developing others, so why not schedule some time with your staff members today?

The post Are one-to-one’s part of your leadership tool kit? appeared first on CCCC Blogs.