‘More legal rights than they realize’: What to know if your field is federally regulated

As an employment lawyer, I get a lot of questions from individuals working for banks, airlines, telecommunications companies, broadcasters and other non-unionized, federally regulated businesses in Canada. Often, they’re facing complications with their job and want to know more about their options.

Unlike employees in other fields, workers in these industries are governed by the federal Canada Labour Code (CLC). But employees under the CLC still have the same (and in some cases, better) protections as those working under provincial regulations.

Here’s a closer look at some of the most common questions about what rights employees have in federally regulated industries.

How do termination and unjust dismissal work for federally regulated employees?

When it comes to terminations, federally regulated employees actually have greater job protection than workers governed by provincial legislation.

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Non-unionized workers who have worked for at least 12 months and are in a non-managerial role can only be dismissed if they are fired for cause, such as serious misconduct, or because their job no longer exists. A July 2016 Supreme Court of Canada decision made it clear that termination can occur only if those criteria are met.

By contrast, provincially regulated employees can be dismissed for any reason, as long as it’s not discriminatory and a complete severance package is provided.

If you believe you were fired from your federally regulated job without a valid reason, you can make a complaint for unjust dismissal and seek reinstatement. But you have to take this step within 90 days of your dismissal.

That’s why I always recommend talking to an employment lawyer at Samfiru Tumarkin LLP before you accept a termination or severance offer, especially if you have been let go for cause. Many dismissals for cause are illegitimate, which could mean being reinstated to your position or getting substantial severance pay.

READ MORE: What to do if you’re an older worker laid off amid COVID-19 pandemic

How much severance pay do federally regulated employees get?

Many federally regulated employees I’ve spoken to believe they’re owed far less severance than a provincially regulated worker. Under the CLC, severance can be as little as five days’ wages — if you’ve worked at least 12 consecutive months.

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But a proper severance package for a federally regulated employee must also include common law compensation. This amount is calculated by considering a number of factors, including an employee’s age, position or job title, level of compensation, length of service and availability of new employment. Common law severance pay can add up to as much as 24 months’ pay.

READ MORE: The 5 facts you need to know about severance pay, according to an employment lawyer

Can federally regulated workers be put on temporary layoffs?

Like provincially regulated workers, federally regulated workers do not have to accept a temporary layoff. They have the right to treat the layoff as a termination and receive full severance pay.

In fact, there are only two instances in which an employer can legally enact a layoff: if the employee has signed an employment agreement that gives their employer the right to implement one or if the employee has accepted temporary layoffs in the past as part of their employment. For example, most seasonal employees regularly accept temporary layoffs.

I’ve helped many employees, both provincially and federally regulated, negotiate full severance packages after being temporarily laid off.

Do federally regulated employees have to accept major job changes?

As with temporary layoffs, federally regulated employees do not have to accept significant changes to the terms of their employment. If an employer tries to implement a change in pay, position or title, job responsibilities, schedule or any other major part of the job, this would trigger a constructive dismissal. Employees who are constructively dismissed are owed severance and possibly additional damages.

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If your employer is trying to introduce changes to your job, it is important to speak to an employment lawyer right away. Accepting the change may prevent you from later taking legal action against the company.

Do federally regulated employees get overtime pay?

Federally regulated employees who are salaried qualify for overtime pay once they work more than eight hours per day or 40 hours per week. Overtime may also apply to managers, depending on the nature of their duties.

Compensation must be either time and a half or paid time off at that rate. Employers are required to provide this extra compensation even when an employee works overtime without permission from the company. Businesses that discipline or fire workers who put in extra hours without initial approval may be engaging in a reprisal, which could entitle the affected employee to financial damages.

READ MORE: Can non-unionized employees be fired for refusing the COVID-19 vaccine?

Do you have questions about your rights as an employee in a federally regulated industry?

Contact the firm or call 1-855-821-5900 to secure assistance from an employment lawyer in Ontario, Alberta or British Columbia, and get the advice you need.

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. He provides free advice as the host of Canada’s only Employment Law Show on TV and radio.

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