Alberta employment law: A primer

?? Aaron Marchadour, Jean Torrens, Chris Nyberg

Since January 2024, MLT Aikins lawyers have hosted monthly Taproom Sessions on topics that matter most to attendees. Each session is held at a different Calgary brewery. These private, one-on-one sessions are available to any member of the Alberta Small Brewers Association at no cost. In this blog series, we will share the topics discussed during previous Taproom Sessions.?

Alberta’s employment and labour laws apply to a number of areas relating to how companies manage their workers, including hiring, setting workplace policies, interactions with workers and ending working relationships.

It’s important for any organizations that have workers in Alberta or carry out business in Alberta to understand how these laws may affect them and their business decisions. This blog provides a basic primer on how these laws can impact Alberta employers.

Employment standards

Employment standards legislation applies to all employers that have employees in Alberta. The legislation sets out minimum standards that must be complied with and establishes basic working conditions. This includes minimum standards for hours of work, overtime, vacations and vacation pay, general (statutory) holidays, job-protected leaves, minimum wage, temporary layoffs and termination of employment. The legislation also requires that employers maintain certain records relating to their employees (such as pay statements, vacation records and termination notices).

Human rights protected grounds

Human rights legislation and obligations apply to all employees and protects employees from discrimination related to a “protected ground.” Protected grounds in Alberta include: race, religious beliefs, colour, gender, gender identity and gender expression, physical disability and mental disability, age, ancestry and place of origin, marital status, source of income, family status and sexual orientation.

Employers cannot refuse to employ someone, deny an employment-related benefit or terminate an employee for a reason related to a protected ground. In addition, employers cannot retaliate against an employee because they filed or participated in a human rights complaint. If a protected ground is a factor in any adverse treatment of an employee (even if it is not the predominant factor) then there is discrimination. In order to be proactive, employers should have anti-discrimination and accommodation policies.

Employees versus contractors

There are three categories of working relationships:

1. Employee – subject to employment legislation and owed reasonable notice of termination (unless contracted out of reasonable notice).
2. Dependent contractor – not subject to most employment legislation (but can be subject to union/labour legislation) and owed reasonable notice of termination (unless contracted out of reasonable notice).
3. Independent contractor – not subject to most employment legislation and not owed reasonable notice of termination.

Note that the wording of a contract alone does not determine whether a worker is a contractor or employee – the nature of the relationship based on the actual facts and circumstances determines the relationship. Some companies attempt to hire individuals as contractors in order to reduce the cost and potential liability associated with hiring employees, only to find that despite their contractual arrangement the individual hired is actually considered an employee by Alberta’s Courts and regulators.

Key factors that determine what type of relationship exists include:

• Control – does the worker have control over how they carry out their work or does the organization “manage” the worker? For example, set hours or discipline.
• Exclusivity – does the worker do work for multiple entities?
• Dependence – is the worker economically dependent on the organization?
• Risk of profit/loss – does the worker carry the financial risk associated with their work?
• Equipment and tools – does the worker use their own equipment and tools?

Employers should have a proper form of employment or contractor agreement suitable to each arrangement. The terms of this contract are key to determining the worker’s status as a true employee or an independent contractor. The agreement should include what each party owes to the other when the working relationship ends.

Termination of employment

There is no employment “at will” in Canada. Employment is generally either terminated with “just cause” or without cause. If just cause is established, then employment can be terminated without any notice or pay in lieu of notice. The threshold for a finding of just cause in Canada is very high and the burden is on the employer to prove just cause.

Employers are typically expected to follow “progressive discipline,” meaning employees should be warned of misconduct or poor performance and provided with an opportunity to improve. Only rare circumstances involving very severe misconduct or performance issues will warrant a just cause termination based on a single incident without previous warnings or discipline.

Employment can be terminated without just cause (absent discrimination) by providing employees with advance notice of termination or pay in lieu of such notice.

The minimum standards for this advance notice or pay in lieu range from zero to eight weeks’ depending on the employee’s years of service. The default is that an employee is entitled to “reasonable notice” of termination (up to 24 months), unless the employer and employee have contracted out of reasonable notice through very explicit language. Reasonable notice is determined based on a variety of factors including the employee’s age, length of service, character of employment and availability of similar employment.

Workers’ Compensation in Alberta

Alberta’s Workers’ Compensation Board (WCB) administers the WCB coverage program, which is essentially a statutory insurance for workplace injuries. WCB coverage is mandatory in most industries in Alberta, including breweries. For breweries, premiums are $1.53 per $100 of assessable earnings and capped at $104,600 per worker.

WCB coverage is no-fault and provides medical support, return to work support and income loss protection. WCB coverage applies to worker accidents that (1) arise out of and (2) occur in the course of employment.

Occupational Health and Safety (OHS) in Alberta

Employers have general duty to protect worker health, safety and welfare. Employers must also provide proper training, supervision and inform workers of hazards.

Workers have the right to refuse unsafe work and can’t be disciplined for doing so. Employers must designate an OHS representative (if they have five to 19 workers) or committee (if they have 20 or more workers). OHS officers have broad powers to inspect workplaces, especially if they receive a complaint. If OHS legislation is breached, employers can be issued administrative penalties or charged.

All employers require workplace harassment and workplace violence prevention plans, including policies. Employers should have safe work procedures and clear policies on how employees can report OHS incidents, hazards and near misses.

Please contact a member of our Labour & Employment team if you would like to discuss any of this information further.

To ask your burning legal questions and to learn about attending future Taproom Sessions in Calgary, find out more here.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.