Legal Insights on Working in the USA and Canada Simultaneously

This term was used in Canada's Constitution Act of 1867 to describe the values of the new nation. It differed from America's "life, liberty, and the pursuit of happiness" and France's "liberty, equality, fraternity" in that it prioritized collective good over individual accomplishment. This mindset is evident throughout Canadian society, as well as in the rules and regulations that control how businesses function in Canada Corporations are viewed as part of the system that ensures that everyone's level of life remains high. As such, they bear duty to people, communities, and the country.

While the particular obligations will vary by business (the list of regulations regulating a forestry firm and a marketing agency will be somewhat different), they will fall into five main categories:This set of legislation is always being updated to reflect developments in the workplace. At the top are the Canadian government's Workplace Standards (also known as Labour Laws), which outline what a company must give to employees and how an employer must safeguard them.The Standards establish various benchmarks, including the minimum pay ($15.55 as of April 1, 2022), the maximum time an employee can be made to work per week (48), and the penalty corporations face for breaking the Standards (up to $250,000 and public disclosure of the charges).

Another set of legislation that federally regulated enterprises must be aware of is the Accessible Canada Act (ACA), which aspires to achieve a barrier-free country by 2040

Areas covered by the ACA include This is why many business owners and managers may seek counsel to guarantee they are in compliance with local and federal personnel rules.

In addition to Canadian Standards, Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Northwest Territories, Nova Scotia, Nunavut, Ontario, Prince Edward Island, Quebec, Saskatchewan, and Yukon also have their own labour laws that can take precedence over federal standards.

Canada's Proceeds of Crime (Money Laundering) and Terrorist Financing Act (PCMLTA) was modified in June 2021 to strengthen the country's anti-money laundering (AML) measures. Canadian firms must be cautious and equipped with AML solutions that comply with the revised Act. Even organizations with existing AML measures should thoroughly analyze the proposed regulations to find any holes and assure compliance. PCMLTA includes actions to follow for: (Canada's anti-spam legislation), and Canada's privacy regulations are among the most strict in the world. It covers any electronic messages (e.g., email, SMS, messages) sent by organizations in conjunction with "commercial activity." The range of behaviors considered prohibited is one of the obstacles many firms face in being CASL compliant. Companies with an active email list (35% of marketers send three to five emails per week) must verify that their actions are compliant or face significant fines.

The Personal Information Protection and Electronic Documents Act (or PIPEDA) is another collection of privacy-related legislation that apply to Canadian corporations. Like CASL, it is a comprehensive set of regulations that regulate the acquisition, use, and disclosure of an individual's personal information. Similar to CASL, company executives must ensure compliance with the 10 main PIPEDA principles: accountability, identity, consent, collection, disclosure and retention, accuracy, safeguards, openness, individual access, and challenges.On June 23, 2023, revisions to Canada's Competition Act went into effect, prohibiting agreements between businesses to fix salaries (or other terms and conditions of employment) or refuse to recruit each other's workers. The revisions extend criminal competition law violations into the workplace. Businesses may be unaware that competition law now controls employee interactions. Labour and employment attorneys will need to study and remain current on a new area of law.

The discussion following is a summary of the modifications, not legal advice

Employers should get counsel from a lawyer in their jurisdiction about their unique business. Breaching these regulations can have significant repercussions.The new crime has the following elements: The accused is an employer (which can be a company's directors, officers, agents, and employees such as human resource specialists); Who plotted, agreed, or arranged; with another employer who isn't associated with that individual to: Fix, maintain, reduce, or manage salaries, earnings, or terms and conditions of employment; or Do not solicit or hire each other's personnel. The claimed agreement does not need the parties to be rivals in terms of the items or services they supply.

The modifications dramatically broaden the scope of Competition Act violations. While the Competition Tribunal may previously grant civil remedies in response to a wage fixing or no-poaching pact, the conspiracy, agreement, or arrangement had to be between rivals and likely to prohibit or significantly reduce competition in a market. This criterion made it impossible to get a civil remedy.The new crime does not apply to agreements between linked organizations. For example, Company A and Company B, both totally owned subsidiaries of Company C, might agree not to hire each other's workers.

The Competition Act defines affiliation, subsidiary, and control. Before engaging into a potentially unlawful arrangement based on this exemption, employers should get legal counsel to determine if their business structure fulfills the definition of affiliate.The Federal Court recently discussed this feature in depth in Difederico v. Amazon.com, Inc., 2023 FC 1156, at paras. 37-39, in relation to section 45(1) of the Competition Act, which utilizes the identical terminology. A conspiracy, arrangement, or agreement arises when two or more people have the same idea. Once an agreement is reached, the offense is committed. The parties do not required to take any action under the agreement.

It is not illegal for many employers to take the same action at about the same time, as long as there is no conspiracy, agreement

or arrangement between them, and no coordination or sharing of non-public information that assisted their simultaneous action. However, parallel activity may be employed to demonstrate agreement.According to the Competition Bureau's Enforcement Guidelines (which are not legally enforceable), the "no-poaching" agreement crime only outlaws reciprocal agreements between businesses not to hire each other's personnel, not one-way agreements. A one-way non-solicitation clause in a contract of employment is still permitted. Similarly, if Company A and Company B agree that Company B will not recruit Company A's workers, but Company A retains the option to hire Company B's employees, that one-way agreement is permitted. However, Company A and Company B may not reach an agreement not to hire each other's personnel.The Competition Act allows for a defense against "ancillary restraints".

This argument allows for competitive limitations that are reasonably essential to achieve the goal of a beneficial transaction or partnership to which they are incidental. No-poaching clauses in "franchise agreements and certain service provider-client relationships, such as staffing or IT service contracts" are an example given by the Competition Bureau's Enforcement Guidelines. This defence may also safeguard reasonable cooperation in the context of pooled, multiple employer pension or benefits systems. In all situations, the restraint must be no broader than necessary to achieve the goal, the desirable transaction must be real, and it must not violate section 45 of the Competition Act when evaluated alone. Employers considering entering into a potentially unlawful agreement as part of a larger or separate agreement or arrangement should get legal guidance on how to use this argument.