Chapter 4- Legal Requirements and Diversity, Equity, and Inclusion Flashcards
Government Impact
Federal and provincial laws regulate the employee-employer relationship
Responsibility of HR specialists:
-Stay abreast of the laws and interpretation of the laws by regulatory bodies and court rulings
-Develop programs to ensure company compliance
-Pursue their traditional roles of obtaining, maintaining, and retaining an optimal workforce (in light of laws and societal objectives)
https://www.worksafesask.ca/wp-content/uploads/2019/06/OHS-Legislation-190611.pdf
Grouping Canadian Employment Legislation
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Which Employment Laws Apply?
HR is responsible for ensuring that the organization is compliant with employment legislation
Three questions guide HR on which employment laws apply:
- Question 1Is the person an employee of the company or an independent contractor?
- Question 2Is the organization provincially or federally regulated?
- Question 3Is the employee unionized or nonunionized?
- Is the person an employee of the company or an independent contractor?
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- Is the organization provincially or federally regulated?
Federal employment laws cover about 10% of Canadian employees who work in federally-regulated industries
-e.g., banks, postal service, federal government
-The Canada Labour Code covers the minimum employment standards (e.g., minimum wage, termination provisions) for all employees in federally regulated industries
-Also applies to businesses in the territories and on First Nations reserves, and certain Crown
Corporations
90% of Canadian employees fall under provincial legislation: The employment laws of the province employees work in apply
The Legal Framework for HRM
Federal Government Regulations (10%) (Partial List):
Banks
Air transportation
Radio & TV broadcasting
Telecommunications
First Nations
Federal departments
Provincial & Territorial Regulations (90%):
All other businesses not
federally regulated
For example:
Retail & hospitality
Hospitals & health care
Schools, colleges & universities
Most Manufacturers
- Is the employee unionized or nonunionized?
Each province has its own employment standards act or code that defines minimum standards
Unionized employees are covered under each province’s labour laws
Labour relations acts set rules for how unions and employers will organize and collectively bargain to determine the minimum employment standards
HR Responsibilities
There are also some employees who are exempt for many employment laws
These vary by province and may include farmers, municipal police, inmates, politicians, family members working in a family business
HR is responsible for determining which employment laws apply to each employee, and:
-Staying abreast of the laws and interpretation of the laws by regulatory bodies and court rulings
-Developing programs to ensure company compliance
-Pursuing their traditional roles of obtaining, maintaining, and retaining an optimal workforce (in light of laws and societal objectives)
Human Rights Legislation
Unlike employment laws, which impact a single HR activity at a time, human rights legislation affects nearly every HR function
Human rights legislation is about not treating any Canadians differently because of their membership in a protected group
membership in a protected group is defined in the Canadian Charter of Rights and Freedoms
The Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is contained in the Constitution Act of 1982
Most far-reaching legal challenge for HR managers
Charter provides fundamental rights to every Canadian
The Canadian Charter of Rights and Freedoms is contained in the Constitution Act of 1982
-Most far-reaching legislation for HR managers
Charter provides fundamental rights to every Canadian:
-Freedom of conscience and religion
-Freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication
-Freedom of peaceful assembly
-Freedom of association
Infringements
“Every individual is equal before the law and under the law and has the right to the equal protection and benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.” Section 15 CCHRF
When a person challenges an infringement of their rights, the dispute may be settled by a tribunal, or in court
Courts interpret and apply the Constitution and legislation (federal and provincial), and develop and apply the common law (i.e., precedents)
Every province and territory has lower courts, which are the first to hear a case and make a ruling
Cases may proceed to provincial higher courts, to courts of appeal, and ultimately, to the Supreme Court of Canada
The SCC only hears cases of public importance or national significance and is the ultimate interpreter of the Charter
Human Rights Legislation
Federal Law
-Passed by Parliament and enforced by federal Human Rights Commission/Tribunal
-To ensure equal employment opportunities with employers under federal jurisdiction
Provincial Law
-Enacted by provincial governments and enforced by provincial human rights commissions/tribunals
-To ensure equal employment opportunities with employers under provincial jurisdiction
The Canadian Human Rights Act
A federal law prohibiting discrimination.
The act applies to all federal government departments and agencies, Crown corporations, and business and industry falling under federal jurisdiction (e.g., banks, airlines, railways, interprovincial communication)
Each province has its own antidiscrimination law
Discrimination Defined
Dictionary: “A showing of partiality or prejudice in treatment; specific action or policies directed against the welfare of minority groups.”
Discrimination is not defined in the Charter of Rights and Freedoms, nor in any federal or provincial human rights legislation with the exception of Quebec.
Prohibited Grounds of Discrimination
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Direct Discrimination
Direct Discrimination
-On grounds specified in the human rights legislation—is illegal.
-Legal discrimination: bona fide occupational requirement (BFOR)
—But there is a duty to accommodate to the point of undue hardship
Indirect (Systemic) Discrimination
Systemic Discrimination
-Company policy, practice, or action that is not openly or intentionally discriminatory, but has a discriminatory impact or effect
–Minimum height and weight requirements
–Minimum scores on employment tests
–Promotion criteria that favours seniority
Harassment
Harassment
-Treating an employee in a disparate manner because of that person’s sex, race, religion, age, or other protected classification
Sexual harassment
-Unsolicited or unwelcome sex or gender-based conduct that has adverse employment consequences for the complainant
Employer Retaliation
-It is a criminal act to retaliate against employees who file human rights charges
Enforcement
Canadian Human Rights Commission (CHRC) is responsible for enforcement of the Canadian Human Rights Act
Canadian provinces and territories generally have their own human rights laws and human rights commissions with similar discrimination criteria, regulations, and procedures
Employment Equity Act Designated Groups
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Employment Equity Act (1987)
Abella Commission on Equality in Employment was appointed
Employment Equity Act was passed by the federal government in 1987
-Employers with 100+ employees under federal jurisdiction to develop annual plans setting out goals and timetables
Employment Equity Amendment (1996)
As of 1996, employers are responsible for providing reasonable accommodation, such as:
-Providing a sign language interpreter for a job interview with a deaf applicant
-Altering dress or grooming codes to allow Aboriginal people to wear braids, etc.
Functional Impact of Employment Equity
Virtually every HR function is affected by employment equity plans:
-Human resource plans
-Job descriptions
-Recruiting
-Selection
-Training and development
-Performance appraisal
-Compensation program
Major Steps: Employment Equity Programs
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Pay Equity
Equal pay for work of equal value
-Federally, and in most provinces, it is illegal to pay women less than men if their jobs are of equal value
Major cases include:
-Federal government settled in 1999 at a cost of over $3.5 billion
-2011 Supreme Court of Canada ruling involving Canada Post is expected to cost $250 million
-The implication for HR is to be very certain wage and salary systems do not discriminate
Reverse Discrimination
Usually arises when an employer seeks to hire or promote a member of a protected group over an equally (or better) qualified candidate who is not a member of a protected group
-Places HR departments in difficult position
-Canadian Human Rights Act declares Employment Equity Programs non-discriminatory if they fulfil the spirit of the law
The Principle of Natural Justice
Minimum standards of fairness and implied obligations for decision-making
Rights:
-To a fair hearing
-To a bias-free proceeding
-To present the opposing argument
-Of legal representation
-To timely notice of a hearing
-To a timely process
Strategic Implications of Legal Challenges
Ensure all rules and policies consider legal aspects
Employment equity requirements
Good corporate citizen
Training
Sexual harassment and unjust dismissal
Privacy Legislation
Relatively newer legislation relating to the collection, storage, and access to personal information about employees
Includes information about race or national or ethnic origin, religion, age or marital status, medical and employment history, finances, DNA, identifying numbers (e.g., SIN), views and opinions about a person as an employee, but not business info
Two sets of privacy legislation:
-Privacy Act – right to access and correct personal information the GOC holds
-PIPEDA – sets rules for how many organizations collect, use and disclose personal information in Canada
Workplace Policies
Current, ethical, and effective HR policies serve many purposes:
-Outlining expectations in the workplace (e.g., unacceptable behaviours, safe work practices)
-Meeting statutory requirements, such as having a working alone policy in Alberta or a workplace violence policy in Ontario
-Outlining how to address complaints, problems, and grievances
-Helping to protect employees from their colleagues’ poor behaviour and from misdeeds by the organization
-Helping to train and develop employees by explaining acceptable parameters
-Outlining breaks, vacations, and statutory holidays which may meet or exceed requirements from employment standards to eligible employees
Types of HR Policies
Harassment (aka respectful workplace, code of conduct)
Attendance, leave, and break policies
Occupational health and safety
Workplace violence
Remote work
Technology use
Social media
Substance use
Confidentiality
Theft
Other Legal Challenges
Canadian Labour Code (1971)
Dismissal
Hours of work and overtime regulations
Minimum wages
Occupational health and safety
Weekly rest day
WHMIS
Diversity, Equity & Inclusion in Canadian Workplaces
Human characteristics that influence an employee’s values, perceptions of self and others, behaviours, and interpretation of events around them.
Diversity, Equity, and Inclusion in Canadian Workplaces
Ensuring that treatment of others is equitable and just regardless of differences on diversity dimensions is the central goal of diversity, equity, and inclusion within organizations
Diversity is recognizing the presence of difference, equity is ensuring access to the same opportunities, and inclusion is about welcoming and valuing all people.
Challenges for Diverse Workers
Stereotyping
-Grouping people based on commonalities without consideration of their individuality and capabilities
Old Boy’s Network
-Informal relationships among male managers and executives
Glass Ceiling
-Invisible but real obstructions to career advancement of women and visible minorities
Pet to Threat
-Shared experience by many Black women that the mentors and managers who once supported them later undermine them because they are perceived as a threat or competition
LO 6 Strategic Importance of Diversity, Equity, and Inclusion
A combination of factors have fundamentally changed the way Canadian organizations work and who they employ:
-Changing Workforce
-Importance of Human Capital
-Increasing Role of Work Teams
-Diversity as a Competitive Advantage
Diversity and Inclusion
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Current Industry Practices
Diversity and Inclusion Training Programs:
-Awareness training
-Skill-building training
-Content vs. process training
Mentoring Programs:
-Senior manager provides guidance
-Formal or informal
Alternate Work Arrangements:
-Non-traditional work arrangements
-Provide more flexibility to employees
Apprenticeships:
-A form of on-the-job training
-Learn from an experienced person
Support Groups:
-Provide emotional support to new employee who shares a common attribute with the group
Communication Standards:
-Formal internal protocols
-Eliminate biases in communication
