Five Things to Consider Before Opening a Retail Location in Canada
Opening a retail location in a new jurisdiction requires a great deal of planning. Retail human resources professionals must consider the relevant workplace legislation, local best practices and workplace norms. Below we discuss five important issues that retailers commencing operations in Canada need to know.
- Workplace laws vary between provinces
Each province and territory in Canada has its own set of laws governing employment relationships and the workplace. Policies will have to be written and applied to ensure compliance with several employment related pieces of legislation in each province where a store is located. For example, minimum wage laws, public holiday rules, limits on work schedules and rules about which employees are entitled to overtime and which are exempt differ in each province.
While there are similarities between the different jurisdictions, it is important that retailers are aware of the legal requirements in the specific province in which they plan to operate. Policies should be reviewed for legislative compliance before a store is opened.
- “Employment at-will” does not exist in Canada
American retailers will be familiar with “at-will” employment. In the United States, many States permit employees to be employed “at-will” meaning that both the employer and employee are permitted to end the employment relationship at any time and without any reason, explanation or notice.
“At-will” employment is not a concept that exists in Canada. As a result, in the absence of termination for just cause, employers are required to provide employees with notice before terminating the employment relationship. Minimum notice periods are set out in employment legislation and vary by jurisdiction.
In the absence of an enforceable employment agreement, common law notice requirements will apply. Reasonable notice at common law is typically much greater than statutory minimum entitlements to notice and severance pay. For this reason, we strongly recommend that employers implement employment agreements limiting payments on termination. In our experience, using a properly drafted employment agreement, which is executed before employees begin working, will save a company significant amounts in termination costs and legal fees.
Note that a Canadian employment contract that attempts to make employment “at-will” will be unenforceable. With this in mind, it is essential that employers do not attempt to use existing American employment contracts for their Canadian employees.
- Certain policies are a legal requirement, not just a best practice
Having a workplace policy manual is a best practice for employers in many jurisdictions. However, in Canada, employers are legally required to have certain policies in place. Some examples of mandatory policies include:
- Occupational health and safety policies;
- Workplace violence and harassment policies; and
- Accessibility policies.
Employers are advised to consult the workplace laws of the province or territory that they plan to operate in to determine which policies are required by law and which policies should be implemented as a best practice.
- Employers are statutorily required to provide training to staff
Many Canadian jurisdictions require employers to provide training to their staff on various labour and employment issues. Occupational health and safety training, which includes training on workplace violence and harassment, is an example of mandatory training commonly required. Some jurisdictions also require employers to train their employees on how to interact with and accommodate people with disabilities to ensure accessibility.
- Retail managers will often be entitled to overtime pay
Retail managers in Canada, unlike in certain other jurisdictions, are often entitled to overtime pay. In Canada, overtime pay exemptions are contingent on the actual duties performed as opposed to how the employer or the contract of employment characterizes the job.
The exact conditions required for a manager to be exempt from overtime pay vary by province. For example, in order for retail managers to be exempt from overtime pay obligations in Ontario, they must perform managerial or supervisory duties, and refrain from performing non-managerial or non-supervisory work, except on an irregular or exceptional basis.
If a manager regularly performs non-managerial tasks, such as serving customers, he or she will likely be entitled to overtime pay, regardless of whether the manager is compensated on an hourly basis or by salary.
By: Emily La Mantia, Filion Wakely Thorup Angeletti LLP
While the above suggestions are not complicated, they do require some planning in advance of a decision to open a retail location in Canada. In addition to the above, it is also important to recognize the requirements of French language laws in existence in the province of Quebec.
We are happy to assist if your organization is planning to open a retail location in Canada.
For more information or any other issues involving labour and employment matters in Canada, please contact Robert Bayne at rbayne@filion.on.ca or Emily La Mantia at elamantia@filion.on.ca, or visit Filion Wakely Thorup Angeletti at www.filion.on.ca.
