A lawsuit filed by a California mother against her former employer sheds light on the difficulties that working parents have trying to balance the office and their offspring — and the rights of Canadian employees during the coronavirus pandemic.
Drisana Rios alleges that she was fired by her employer, Hub International, because her children made too much noise during multiple work calls.
Rios had been working from her San Diego home since the start of the pandemic in March. With no child-care options for her one- and four-year-olds due to stay-at-home orders in California, she was forced to juggle naps, meals and meetings. She says that although she asked her boss to schedule work calls in the afternoon, he would often arrange for calls during her lunch hour, when her kids tended to be at their noisiest.
Her employer told her that it was “unprofessional” for her children to be heard on her business calls, Rios told “Good Morning America.”
Despite having a conversation with the company’s human resources department about her situation, she alleges, her boss continued to harass her multiple times about her children.
Rios was eventually let go from her job.
In both the U.S. and Canada, this dilemma has become a common issue, as millions of parents continue to work from home without viable child-care options. An Angus Reid survey released in May found that 16 per cent of Canadians working remotely with children at home are having trouble balancing child care with work.
Here’s what employees need to know about their rights in this situation.
Can my employer punish me if I have to take care of my children while working from home?
Human rights laws in Ontario and British Columbia, where my firm practices, state that all employees have a right to be treated equally in the workplace, and to not be discriminated against on the basis of certain protected grounds.
Under both provinces’ human rights legislation, parents who are obligated to care for a child have the right to be accommodated in the workplace on the basis of family status. In other words, your employer cannot treat you differently or punish you because of your family status.
Your employer is also required to make changes to your work hours, duties or location to accommodate your child-care obligations. Employers must make all necessary efforts to develop a solution that is fair for the employee, even if it results in some degree of hardship for the business.
This means that companies that ignore their employees’ requests for accommodation in this regard may be committing a human rights violation and could face significant financial penalties as a result.
Samfiru Tumarkin LLP has represented thousands of individuals in successful claims at human rights tribunals in Ontario and B.C. Given the difficulty in reopening schools and daycares after the COVID-19 crisis and the resulting need for more workplace accommodations, we expect to see an increase in these types of claims.
READ MORE: Child care is back, but do working parents have to send their kids?
Can my employer fire me for cause if they aren’t happy with my productivity when working from home?
Your employer can terminate your employment if they believe the quality of your work has dropped while working from home, but only if they provide you with proper severance.
Businesses can fire staff for any number of reasons — poor work performance, company downsizing or restructuring, or a late arrival at work — as long as the decision is not discriminatory.
This is called a termination without cause, and it’s by far the most common type of termination we see in our practice. In the case of a without-cause termination, a company must provide a full severance package ranging as high as 24 months’ pay.
What a company cannot do, however, in most cases, is dismiss you for cause. In a for-cause termination, a company can let an employee go without any notice or severance pay, but only if that individual has engaged in serious workplace misconduct, such as theft, assault or gross insubordination.
READ MORE: Most Canadians expect to continue working from home post-pandemic, study finds
Employers often claim terminations for cause when the term does not actually apply, either because they are unaware of the qualifying factors or because they seek to avoid paying an employee their severance.
A remote employee’s poor work performance would likely not meet the high threshold for a termination for cause, which means that the employee would probably be owed their full severance.
The employment lawyers at my firm work constantly to secure full severance packages for the employees we assist, even when they are initially dismissed from their jobs for cause. It is extremely important to get sound legal advice from an employment lawyer before accepting any kind of termination offer or temporary layoff.
Is your employer refusing to accommodate your needs? Have you been fired for cause?
Contact the firm or call 1-855-821-5900 to secure assistance from an employment lawyer in Ontario or British Columbia. Get the advice you need — and the compensation you deserve — during this crisis.
Lior Samfiru is an employment lawyer and partner at Samfiru Tumarkin LLP, one of Canada’s leading law firms specializing in employment law and disability claims.