Employment law 101 for licensed producers

Dealing with employment and privacy law implications of the Access to Cannabis for Medical Purposes Regulations

So—you’ve finally received your license to produce. Congratulations! Now you’re probably thinking about everything you have to do to ramp up production. Probably not least on your enormous “to do” list is making sure you have the right people in place to make your venture a success. What you may not have thought about are the employment and privacy law implications of the Access to Cannabis for Medical Purposes Regulations (ACMPR) and your related obligations as a new employer. This article will set out the basics.

1. Employment Standards Legislation

Your employees are protected by the employment standards legislation in their province of employment. Every province has a law which provides for things like minimum wage, overtime pay, minimum termination notice or pay, meal breaks, vacation time and pay, and other minimum standards. We could write a textbook on these requirements, but here are a few things employers often get wrong:

(a) Not paying overtime to salaried employees. The way an employee is paid (i.e., salary vs. hourly wage) may be irrelevant to the determination of whether they are entitled to overtime. Employees are entitled to overtime unless they fit into one of the narrow exemptions.

(b) Misclassifying employees as “managers.” While “managers” are exempt from overtime under almost all Canadian employment standards legislation, the exemption is read narrowly to only apply to those people with independent decision-making power; just having “manager” as a title is not sufficient.

(c) Assuming you can agree to something other than the minimum standards. Any agreement to provide for something less than the minimum standards in the legislation (even with an offsetting benefit) is void.

Employment standards legislation is enforced by government authorities in every province. Breaches can result in investigations, orders for back pay, and fines. Take our word for it that investigations and complaints are a distraction that you don’t want.

2. Personal Information Protection

The ACMPR requires you to collect and store enormous amounts of personal information about your customers (e.g., name, birthdate, address, medical information). All of this information is “personal information” protected by privacy legislation. Privacy legislation requires you to have consent from customers to collect, use, and disclose this information. Make sure you have a robust collection system in place which provides customers with information about why this information is collected and when it can be disclosed (for example, to the College of Physicians or to Health Canada). Ensure you protect the integrity of this information and limit access to as few employees as necessary. Security breaches of personal information are often public and embarrassing. You can expect the media and general public to be particularly critical of breaches in your industry.

3. Criminal Record Checks

In BC it is illegal under the Human Rights Code to discriminate against someone on the basis of a criminal charge or conviction that is unrelated to their employment. There are similar restrictions in some other provinces. Deciding whether a charge or conviction is “related” requires looking at the nature of the job, the nature of the charge or conviction, how long ago it was, and other factors. A shoplifting charge from 10 years ago as a ‘dumb teenager’ is probably not related to current employment; repeated and/or recent fraud convictions may be. Of course, the ACMPR requires that Responsible Persons in Charge (RPIC) and others undergo a security clearance process administered by the federal government. All you get in response is a “yes” or “no”.

How does this fit in? Under the Human Rights Code, you can justify discrimination on the basis of a “bona fide occupational requirement” (BFOR). If you are hiring an RPIC, it would likely be a BFOR that the prospective employee successfully obtain a security clearance. For any employee that is going to undergo a criminal record check or security clearance, make sure the offer of employment is conditional on successful completion of the check or clearance. Otherwise, you may end up owing termination pay to a new hire before they even start work.

4. Video Surveillance

The ACMPR imposes many security and surveillance requirements, one of which is that all areas with cannabis present must be monitored by cameras at all times. These cameras are necessarily going to capture your employees at work. Video footage is “personal information” under applicable privacy legislation. BC’s Privacy Commissioner has taken the position that video surveillance of employees is rarely permissible.

That being said, LPs have no choice: video surveillance must be used under the ACMPR. Best practice is therefore to ensure you notify your employees about the video surveillance and the purposes for which the video footage is collected, used, and disclosed (we suggest those purposes include the investigation of potential misconduct and subsequent discipline). It is a best practice to limit access to video footage and to delete it when it is no longer required.

5. Employment Agreements

In your rush to hire capable employees, some employers overlook asking every new employee to sign an employment agreement before they start work. This is a mistake. A well-drafted agreement can save you a lot of trouble and cost later on. Most notably, an employee without a properly-drafted termination provision is entitled to “reasonable notice” of termination, or pay in lieu of notice, which can be a month or more per year of service. This can be an onerous financial obligation. An employment lawyer can prepare a template you can use for all employees at a very reasonable cost.

 - Christopher Munroe and Drew Demerse

Special thanks to Alexander Close, Creative Director of Tantalus Labs, for his insight and help in preparing this article.

While we hope you find this information useful, it is general information only and is not legal advice.

Featured image via Cannabis Training University.

Roper Greyell LLP is a Vancouver-based employment law boutique with clients across Canada. We specialize in workplace law, including employment, labour, privacy, and human rights. Chris and Drew would be happy to speak with any LP with an employment law question.

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