Ellen Low: Maternity leave, returning to work and navigating your employment relationship post-baby
Voice Over 0:01
You’re listening to the slumber party podcast with your host Amanda Jewson, a mom of two girls, a child and infant sleep expert and general sleep lover. If you’re a tired parent who is desperate for answers, or just someone who loves sleep, this podcast was created just for you. Each episode is packed full of tips and tricks to help you maintain your sanity, as well as your social life during the early stages of parenthood. So grab your headphones, it’s time to get comfy.
Hello, everybody, and welcome to the slumber party podcast. I’m your host Amanda Jewson. Today, I am so super excited for our guest. I was sitting around when in one of my Facebook mom groups that I’m a part of, and usually, I’m tagged in sleep questions are like my kid isn’t napping, and someone would be like asking me questions. Anyway, I’m scrolling the internet. And yet again, I discovered that another woman in the group has said, Hey, is there an employment lawyer around? You know, my job is being reconstruction when I get back and I have questions. And it came to my brain that this is something that happens so much. I see this question in that group or in in all groups, like once a week. And I don’t know, I just had a brain wave. I was like, ah, Ellen, Ellen would down. So Ellen Low is a friend of mine, and an employment lawyer and a damn good one at that, in truth be told, she helps me with all my employment questions. You wrote my team contracts. She’s really good and very thorough. And if I wasn’t my own boss, and something was happening to me, I would fucking hire you. Because you you don’t take any shit. There’s no shits to be taken, or I like to swear on this program. I yes. I mean, I it is always labeled explicit. I know it’s like for moms with babies, but I can’t control myself, especially when I’m in the moment. So it’s always explicit. This is already an explicit warning. It should be in the podcast already. So go for it. Anyway, welcome. Why don’t you tell us a little bit about what you do. Besides take no prisoners and be a huge badass, you know, the average, the average today?
We can take over the world after making toast and cleaning up a dishwasher now. Totally regular with
two young girls yourself. No big deal. Totally.
Yeah, not a big deal at all. So I do that I run my own employment and human rights law firm. We do predominantly employee and complainant side law. And we do sort of all aspects of it with a goal of eventually having more of a relationship with individuals and small business rather than providing only one off advice. And so what that means in practice is if you’ve got a new contract, employment or temporary contract, like I want to be talking to you that we’re having a chat about what it looks like from the outside and employment relationship, any bumps along the way that come up? And then exiting or how you exit? Or how you end the employment relationship, whether that’s about your choice, or it’s being imposed on you? And what are your rights and obligations kind of along the way? And so with this topic, I mean, it’s a huge area. So why don’t you do you want to fire me some questions that I can to sort of answer and yeah, have Okay, go?
Yes, the biggest question that I’m seeing online often is, so I left my job to go on mat leave. They’ve hired my replacement. They’re keeping my replacement, and they’ve recreated a job for me, or I’m on that leave, and I’m going back to an entirely new role. I don’t know if this is allowed. And I’m not sure when I see these questions on like, always just, you know, the feminist in me, like when I see these questions, I want to smash things, but I don’t know if that also means there’s like change in pay with that new role, which I imagine is part of the issue, or could you be like, see, I have so many. I have I’ve layered questions. Could you be demoted, but are they allowed to like change your pay, or could you be promoted with the same amount of pay? Anyway, those are the kind of questions it seems a lot like my job is being changed or a lot of the time is I lost my job I went on, I told my employer that I was leaving for Matt leave. And about two months before I was laid off, or I was let go, it feels like it’s because I was pregnant. How do I know? And those are the two biggest themes that I’m sure you’re aware of and seeing as well. So is that common for you? Or these are common things that you’re seeing? I mean,
yeah, and sadly, have only been exacerbated by the massive dearth of employment opportunities and accommodation for women during the pandemic. So over the last year, the statistics are just depressing in terms of the number of women who have left the workforce either voluntarily or involuntarily. So that’s really problematic. But all the questions that you’ve just gone through, and I sort of noted five, or six different ones, while you were chatting are all really common questions that come up a lot. And so let me just sort of maybe tackle those a little bit in order. So I guess from a starting point, whenever we’re thinking about these issues, there are a lot of myths and misconceptions about what’s permissible and what’s not. There are two main pieces of legislation, if you’re federally provincially, regulated doesn’t really matter. They both apply. So if you’re provincially, regulated, the Employment Standards Act sets out all these rules and regulations about what’s supposed to happen versus what’s not supposed to happen when you’re taking the leave. But if you’re federally regulated, then the Canada labor code sets a really pretty similar protections in terms of what’s allowed and what’s not allowed. The other piece of the puzzle is, of course, the the human rights legislation, again, either provincially the Human Rights Code, or the Canadian Human Rights Act, if you’re federally regulated. So let me talk about it, I guess mostly from provincial, namely, because if you’re federally regulated and federally regulated, meaning you’re working for a bank, or another intro, provincial enterprise, there’s only like six to 10% of the entire Canadian population who’s federally regulated, so it doesn’t come up all that often. Most people are going to be provincially regulated. Okay, any employment? My next question?
You’re like, really free? What’s
Unknown Speaker 7:09
How do I know?
Well, yeah, you would generally know based on what it is you’re doing. So if you’re working for if you’re working for the bank, not as like a day trader and not on the on the trading floor, if you’re actually working for the institution itself, you’re probably federally regulated. But 90 some odd percent of the population is provincially regulated instead. So for the purposes of most of the questions that you’re seeing online, well, it is solely answered them from a provincial standpoint. The one last thing I’ll say about the provincial piece is that it actually has some pretty extra cool provisions about maternity leave, one of which is you actually have the right to basically be advised of changes in the workplace while you’re on leave. And if you’re not advised of those, it’s really problematic. Whereas the provincial legislation, legislation doesn’t necessarily have that. It doesn’t mean you of course, can’t do it while you’re on leave. But it’s not actually part of the part of the legislation was cool. So first question, which is I want to leave and they’re keeping my replacement because they like her better. And they’ve asked me to take another job. Great. short answer is no. I mean, legislatively speaking, in accordance with section 53, of the Employment Standards Act, the person is entitled to be reinstated, and stopped, like they are entitled to go back to the position they had at the conclusion of their leave of absence. And there’s really only like a subsection, if so if the end of that leave, there’s no longer truly that position available, then the influencers act as made clear that the person could be reinstated to a comparable position. But the primary position is that the person goes back to the position they had when they started their leave. So do bad. So said that the company likes the replacement better. The individual person who took the leave is supposed to go back into their the role they had before. And then it’s only if they can test if that position is no longer available, then we can start talking about what’s a comparable position. And so sort of your other pieces of that particular question. Well, yeah, one of the things are a lot of the things that come up is, shockingly, while you were gone, the workplace went through some reorganization and some changes, and lo and behold, your whatever it is, your director of marketing position doesn’t exist anymore. We now have a marketing comma, capital D director, but don’t worry, it’s a totally different job and it’s not your Steve’s gonna keep it but what we want you to do is to consider this other job over here. That has marketing in the title. And then we get into a lot of fights about well, is it? Is it comparable? Right? So like, if Steve is literally doing the job he used to do before, then that’s Strictly speaking, not compliant with the Employment Standards Act. Right? And then we’re getting into all these weeds about what what is it? If you’re being offered a comparable position? Is it actually comparable? Are you getting the same amount of money? is one piece of it? But also like, do you have the same number of direct reports? Do you have the same corner office? Do you have the same level of authority and autonomy that you used to have, in order for it to be a comparable position? The other one that comes up a lot is we did, despite the fact that you’ve been in touch with us throughout your entire mat, leave, and you brought your child in a couple of times. And that was really great. Unbeknownst to you, we’ve totally done this reorganization and this restructure, and Steve’s now going to keep the manager comma capital D, Director role, and we don’t have anything for you, like you’re done, because we don’t have any positions for you anymore. Which is not only contrary to the Employment Standards Act, because you’re supposed to back to the other job. But it’s problematic for I think, for two reasons. One, and I argue with this all the time, like how will you know, how does an organization no mid somebody leave that they won’t have a position for them at the end of the leave number one for that they won’t have a comparable position at the end of the leave. So if you’re firing someone who’s taking a maternity leave, let’s say six months into that leave, I have a legitimate question, which is, how do you know like, how do you know now you’re not going to have a comparable rule. And so we get into all sorts of really fun fights about what that looks like.
Fun fights as a lawyer.
They’re like they’re intellectually interesting fight. Yeah, because it’s a really crappy situation for anybody who’s on leave, contemplating returning from leave. And despite the protections of what’s supposed to be the ESA, and human rights provisions, this stuff happens all the time. Yep,
I guess. That’s actually, I mean, at first, when I kept seeing these questions, I was like, oh, that sucks for that person. And that person and that person and that person, and it seems to be rampant? And is it just that these companies are relying on the fact that it’s probably going to be too expensive for the employee to sue them? And they just do things? Because I know people like friends who are like, Well, I was demoted. And it’s just not worth it for me to fight this because they don’t have the time and energy and money. And so I’m not going to, which is such a fucking piss off.
So the short answer to that is yes. So it’s really challenging. So we have the implementers act, and that’s great. But effectively, let’s say your position is eliminated. And Steve is staying in your position, and you’re, you’re not staying in the position anymore? Well, yeah, you could lodge a complaint to the Ministry of Labor, but the Ministry of Labor can really only enforce the minimum who’s in the province of Ontario. And so a lot of my assessment is if we’re in this situation, where are we going? Are we going to the Ministry of Labor? Are we going to the Human Rights Tribunal? Or are we going to contemplate some sort of civil lawsuit, because there are like, there are cost consequences for all of those, including filing fees? The Human Rights Tribunal, for example, is great, but you can’t get a portion of your legal fees paid. So even if you win, you’re still out of pocket for legal fees. Right is a huge consideration. But I think the other part that comes up a lot of the time, to your point is there sort of the general lack of Well, I’m happy, like, I’m having to have any job, because I just got my kid at a daycare, and I’m not having to shell out like $2,000 a month for daycare. So I guess I’m just getting need it. Because I’d rather have this demoted, reduced position and have the money to cover daycare that I just got into then to a complaint.
I feel like every bone in my body is on fire hearing that because it feels like it’s a system set up to that it can’t really help women if they are in that position. But I also wonder too, like as a business owner, what if shit happens, right? Like what if? Oh, I’m gonna pause. Okay, so the other question I have So, okay. I’m a business owner. I like something happened, shit went down, and I legitimately have lost this position for the person. What is the right thing to do there? Like, I’m sure that not every company is screwing over every woman I am aware of that. So what are the instances where should does go wrong? And the person loses their job? Like what what have you seen? I guess, what are good reasons for this to happen?
Yeah, I mean, I think there’s the that’s part of the full response, which is it’s no longer just, it’s not a discriminatory termination. If the reason that you’re ending the position has nothing to do with the fact that the person was taking leave or planning to take leave, or in fact was on leave, right, it’s no longer discriminatory, it’s effectively economic. So if the economics are there, that I think you can demonstrate that they’re certainly not going to be able to make out discrimination because it wasn’t a decision predicated on taking leave. Practically speaking, you’re gonna want to have a conversation with the person, right, because you’re a human being, which is, like, We’re really sorry, but you know, things have changed while you were gone, things aren’t going particularly well. And we’re having to eliminate the position. And that means for you that your your role has been eliminated. And then of course, at that point you’re moving into, into without cause termination, we’re going to provide you with everything that we are required to provide you in accordance with the Ontario plumbing Standards Act and the contract that you signed and all that sort of good stuff. Because I think that’s a prevailing myth two, right, people, there’s a prevailing myth that you can’t be fired if you’re on mat leave. And that’s just not true.
And I get Yeah, so that’s my part two questions. So let’s say I’m, you know, working for this organization, I’m like, really half assing it, I’m not really great at my job. They go on leave, they hire my replacement, this person is dynamite. They are totally showing me up. It is legitimate. I’m thinking as a business owner, like, shit, I want to keep this Dynamo. Like I don’t want Amanda to come back from that leave and phone it in anymore. Like I like this person. Is there a way to be like, Look, we’ve just realized how bad you are. It’s your job. You have to leave? Like, is there any way to do that?
I mean, so the short answer is no, you would probably have to pony up and create a new role, because the person is amazing, and you want to keep them. But no, strictly speaking, the person who was on leave has the right to go back to that position. And I think a lot of the circumstances too, I mean, do you want to have a conversation with the person? Are they mailing it in? Because they also don’t want to work there? Or they’re mailing it in? Because they don’t really want to be at work anymore? Is there a possibility there of having a conversation about like a mutual conclusion to the employment relationship where you would give her a bit of a runway to look around? But it would let you keep Steve, because he’s an amazing person. I think it’s possible. It’s just getting really careful about it.
Yeah, and I feel like, you know, yeah, I’m giving. So that was me giving employers the benefit of the doubt Just then, because I don’t think everyone is out to get everyone. But I do like, you know, just going back to your idea that it does seem like they’re okay. Even if you do take legal recourse any when it may not even you might not come out ahead, and it would just be for moral purposes only. And that feels like really, that’s it.
If you’re filing at the Ministry of Labor complaint, or you’re maybe doing a human Okay, wait, there’s there’s not okay, so tell me. There’s not a lot that stops me from writing a scathing letter, which is this is this is discriminatory, or this is a presumptive violation of the ESA. And so rather than spending the time and the money to do a Ministry of Labor complaint and or human rights complaint or civil lawsuit, in addition to the amounts that are owed to her by contract, well, then we’ll start having a negotiation about what’s the value of those potential violations. Right, because if you can, if you’re if you’re successful in your discrimination lawsuit, there was a case it just came in on family status, which is really helpful. It’s actually a dad, but it’s a dad who kind of got a win for the rest of us. So the dad asks for an accommodated work schedule, because his wife was going back to work. And somebody had to pick up the kids. And so for a while the employer participated in this accommodated work schedule so he could leave at 230 and pick up the kids. new owner comes in at a faculty says we’re not doing that anymore. Everybody has to stay until 430 in the afternoon, no exceptions. be a team player. This is what everyone’s doing. And the guy’s like, I can’t do that. I have childcare. I have to pick up the kids at 230. Like, I can’t not pick up my children. And eventually he’s fired. So Human Rights Tribunal a couple of weeks ago, a friend of mine argued it gave him 13 months of lost wages, and 20k for emotional mental distress in the experience of discrimination.
Oh, my God, this isn’t worth it. Yeah. Well, and I, this actually makes me think back to I worked for an employer that I won’t name that I worked for, and it wasn’t teaching. So if anyone’s wondering, it wasn’t teaching, it was somewhere before that. Anyway, I worked for an employer. And someone in the office had a child. And they had requested that they come early, like an hour early and leave an hour early for the same thing. And I remember being part of that discussion about whether or not that should happen. And it was like, they didn’t let him end up doing it. It was also a dad. And I remember being in that moment, like, Oh, this is not a place to work. If you have children. This is a disaster. location. Like if you’re, if you’re placed an employee, okay, I think that there are certain jobs obviously, that can’t accommodate that if I’m a teacher, I can’t come an hour early and leave Okay, fine. If I’m, you know, a doctor whenever I’m on my scheduled shift, but generally, and I think we’re finding this out more in the pandemic, most jobs office jobs can be, wow, who knew work from home flexible, like, we don’t have to show up at eight and leave at five like it can be very flexible. And then I just wonder, why are we being so freakin stingy? You know, sorry, I know, we’re going everywhere. But before we go, we have nine minutes left, I made a note for myself, because I really want you to hit on this. And I didn’t even know I wanted to talk about it until you said it is COVID discrimination in the workplace, because women are getting totally fucked right now, in the pandemic, generally, it is women changing their jobs leaving the workforce, who are still responsible, you know, especially during school closures. I mean, I know people who have, essentially are getting up at like four o’clock in the morning, working, teaching their children all day, seeing up to 11, and then doing it all again. And this is just bananas to me. And I want to know, some of the crazy things that you have seen in this pandemic.
I mean, it’s just been generally really depressing. People have been asking, like, to your point, people have made, they they said all the right thing, they have formally requested accommodation on the basis of family status. And the employer has either just outright refused to do it not participated in the accommodation analysis. Or I think, even more harmful, sort of the, the trying to be friendly about it, like, Oh, don’t worry, you can be we can be flexible. So, you know, we just we expect you to still work an eight hour a day, but no worries, if you’re getting up at 4am. And working from 4am until 8am. And then working again from like, 8pm, when you put your kids to bed until 12 midnight work, we can totally accommodate you like that. Listen, I think it’s a really crap time for a lot of people I think is a really crap time for women with children in particular. or, frankly, anybody with children in particular. But when we look at the statistics, especially like the globe, had that really scathing article that a couple weeks ago, about just how badly young parents are doing with all of these changes. It has I mean, to your point, it’s been it’s been bananas, and you can see why women are leaving the workforce in literal droves. Because you just you can’t continue to do that. Like even if you’ve got the world’s best employer. Very few employers have the ability to just continue to pay somebody in 100% to not work. Yeah, totally. And so people I think are trying to be flexible. They’re trying to sort of say, Okay, well, why don’t you take advantage of the Canadian recovery, childcare benefit? Or why don’t you take advantage of the, you know, whatever’s available? But it’s just it’s, it’s not the same, right?
Yeah, and I, I just, I saw this like tweet or something a while ago, and bastardizing it but essentially the thought of it is, we will, we will look back at this time and be shocked at how we didn’t accommodate families or act like we all needed to be working at the same level of productivity during a global crisis. It’s like well, business as usual, and I am I understand that, but It’s like, also, what are we to do? You know, like, I get like, okay, we’re not able to accommodate that. But we surely I even told my people, I was like, Whatever you need, you know, don’t worry if you need to suddenly stop, like I will take on your clients, I will do whatever you need to do. Because we’re in the middle of a global phase.
Yeah, well, but it kind of goes back to sort of the human rights stuff as well, which is that a lot of employers, and a lot of people, frankly, are under the impression that if you treat everybody equally, then that’s equality. But it’s not right. Equality means that you’re looking at everyone’s individual circumstances, and you’re making accommodations, and you’re making changes in order to try and make things more equal. And listen, I’ve got some really, I’ve got some really strong concerns about the fact that our entire economy seems to be predicated or based on a single male with no childcare or eldercare responsibilities as the normal. So of course, women are leaving the workforce, like when there’s no daycare and schools are closed. What do you suppose to do? like somebody’s gotta take care of those kids? Well, I
think if you are in certain levels of this government, I mean, this is my political stance, you don’t have to agree with this. But I think that our particular provincial government right now assumes you’ll hire a nanny, obviously, and the nanny will come and live with you. That’s contrary to their hope, to have somebody come and live with you, of course, but actually, when when things were not great, even in the latest lockdown, caregivers, were still allowed to come in home. So it’s like, you can you can work if you can afford to have a caregiver come into your home. And I mean, what I think is interesting around here is that I mean, I’m in Stratford, where there’s not a lot of cases, you saw a ton of grandparents looking after kids. So families who are still need to pay the bills, are handing off their children to the most vulnerable population, and saying, Hey, watch them, because I have no other option. And I am, it’s just wild to me. Now, there have been some really folstein choices that have been made in the last year, like, who keeps their job. So we’re a double income cisgender household who’s either homosexual or whatever, who keeps the job? And who’s looking after the kids? And how much do you make and all of these sort of like, pretty toxic conversations around, you know, who makes more and the value of that. And so who inherently has childcare responsibility?
Yeah. And then from my perspective, as the employment lawyer sort of saying, okay, but you should be able, to some degree, we’re, we’ve tried to design the system so that you can do both that you can have kids, and you can have a job. But they’re just there hasn’t been the level of flexibility that I was really genuinely hoping for.
Yeah, I yeah. Well, I mean, on that really depressing now? I think I am. So I feel like we could actually I see this every time I feel like this podcast is meant to be a half an hour, because that’s usually the length of a crap nap. And I want you to be able to get all of the content. So I’m, Ellen is someone is really screwed. How can they find you and call you. And the best thing about Elon and I think you’ve showcased this so beautifully is you have such a wonderful sense of humor, that it’s just it would just be fun to get on a call. We’ve had like full like, discussions about very dry things that I’m cracking up over, which are all doing very fun. So you make sad things fun. way to deal with it. But how where where can people find you?
Yeah, so probably easiest way is online. We run a website, which is TorontoHRlaw.com You can book appointments directly online, you can always if you’re old school and you want to talk to you human being you can do that too. And by calling our office number which is 416-915-3111. Or alternatively, people can fire me personal email, which is just email@example.com
Amazing. Thank you so much for being here. Your wealth of knowledge a spring to talk about. I know, I know. But I mean, this is such a good first stop, I think for people who think that there is no recourse and I really like how you talk about some of the really positive outcomes, because I do think a lot of women think, Okay, forget it. It’s just not worth it. I don’t like it. I think it might be worth it to me. Your questions? Come talk to me. Thanks, Ellen. Have a good one. All right bye