Idi conference - Venice May 18, 2012

1. EMPLOYEE AND STAFFING IN CONCESSIONS & CORNERS The Critical Issues Idi conference - Venice May 18, 2012

2. Main Staffing Considerations Consignor • Ability/Desire to Help Consignee Locally • Existing Infrastructure • Easy Consignee • No Country Presence • No/Limited Knowledge of Local Laws

3. Staffing Options • Consignor Employees • Consignee Employees • Staffing Agency • Independent Contractors • Combination of any/all of the above

4. Risks • Deemed Employer • Co-Employer • Common/Affiliated Employer

5. Deemed/Co-Employer • Examination of the Fact & Circumstances of the Relationship • Integration of the Relationship

6. Examination of the Facts Look Beyond the Form of the Relationship and into its Substance • Who recruits, hires, disciplines and terminates? • Who remits withholdings to proper government authority? • Who maintains payroll and personnel files? • Who provides benefits? • Who provides workers’ compensation insurance coverage? • Who provides training, uniforms and ID?

7. Microsoft Case Independent Contractors • Recognized as “common law employees” Individuals Provided by Temp Staffing Agency • Court Applied 5 factor test: • Recruitment • Training • Duration of Employment • Right to assign additional work • Control over relationship between worker and agency

8. Risks Associated with Deemed/Co-Employment Inadvertent Assumption/Sharing of Employer Responsibilities including liability for: • Severance payments • Human rights • Disability

9. Employer Liabilities Canada • Payment of Legislated and Common Law Severance • Quebec: Reinstatement of Employment • Liability for Human Rights Complaints, Employee Injuries and Workplace Safety United States • “At will” Employment • 3 Exceptions: • Public Policy • Implied Contract • Implied Covenant of Good Faith • Liability for Civil Rights Violations and Damages for Breach of Contract

10. How to Reduce the Risk? • Clear Contract Terms • Who is employer and what are their responsibilities • Avoid sharing employer responsibilities • Include provisions that exclude participation in your employee benefits and have your plans specifically exclude non-employees • Require employees to sign waivers to benefits in employment agreements • Minimize communications and involvement in dispute resolution process • Indemnities • Reflect Contract Terms in Day to day Operations

11. Common/Single Employer Doctrine • Created by Statute and Common Law • Allows the Court to treat 2 different legal entities as 1 employer for purposes of attribution of liability for employees where a sufficient degree of relationship exists between the entities

12. United States • 4 Elements of the Rule: • Interrelation of the corporations • Common management • Centralized control of labor relations; and • Common ownership or financial control

13. Canada • Common Law Doctrine • Also in Employment Standards Legislation • Test: “A sufficient degree of relationship” • Determined on a case by case basis • Consider individual shareholdings, corporate shareholdings and interlocking directorship