HR MIDTERM Flashcards
HRM
Human Resource Management:
An integrated set of processes, in an organization that focuses on the effective deployment and development of employees in support of the organization’s strategy and objectives.
The evolution of HRM
Purchasing -> Labour relations -> Personnel -> HR -> Strategic HR
What does HR do?
o Job analysis and design o Recruitment o Selection o Training o Development o Performance management o Compensation o Discipline o Separation
- Decision making: hiring decisions, like other decisions, must be based on real criteria related to the job and the needs of the firm
- Revisit assumptions you may have about members of groups (ex. Watch yourself for bias and stereotyping)
- Discrimination and the hiring stage (and beyond)
- Conflicting interests between employees; between firm and employees; sometimes between short and long-term goals of org
- Interviewing: think carefully about what you share in your interview and at recruiting events
HR professional vs. Line Manager
HR professional
- Align HR strategies with business strategies
- Internal consulting
- Talent and workforce planning and management
- Develop systems and policies
- Deliver some services
- Manage culture and change
Line Manager
- Determine work and job design
- Make hiring/firing decision
- Coach train and develop employees
- Manage correct, review performance
- Some compensation
- Some planning
Traditional conception of HR work
- Strategic – ex. Succession planning
- Tactical – ex. Filling vacancy, identifying people who need training
- Transactional – payroll, filing request for leaves, benefits
Positioning HR in the value chain
within the profit margin, under supporting activities (with infastructure, technology development, procurement)
Key forces for change and focus:
- Global economy
- Changes in firms and business sectors
a. Downsizing- planned elimination of jobs - Technology and quality
- Sustainability
- Developing HC and talent management
- Demographic and employee concerns
Six Sigma
Process used to translate customer needs into a set of optimal tasks performed after each other
Benchmarking
- Finding the best practices in other organizations that can be brought into a company to enhance performance
What does HR have to do with Organization strategy? (Strategic HR)
- Contributes to organization strategy formulation
- Develops HR strategy that aligns with business strategy
- Manages talent to support organization strategy
- Human capital as competitive advantage
- HR as competitive advantage
HR alignment decisions:
o Organization structure o Policies, processes o Work design o HC development, engagement o Inclusivity o Workforce planning o Organization culture o Change
National CHRP Certification Requirements
- The CHRP designation represents a commitment to a national standard of excellence, set a benchmark for effective human resource practices, and emphasizes the strategic role of human resource management in business. You must meet the following qualitifcaitons
Case: An indiscreet conversation on Hiring
Women – best candidate, relevant experience, and good education
Men – less likely to take paternity, Canadian knowledge
Employer responsibilities
- Cannot discriminate based on gender or age or family status
Job Problem Re-visited
1. Strategic – fill position with long-term cost/benefit analysis and business objectives in mind
2. Tactical – fill position with short term cost/benefit analysis in mind
3. Transactional – hire and train, don’t break the law
Canadian Legal Framework
- Constitutional Law – Supreme law of Canada; includes the charter of Rights and Freedoms
- Statutes or Acts - legislation made by government
- Case or Common Law – judge-made law
Canadian Constitution
The supreme law of Canada
o Comprised of enactments (acts) and amendments
o Political principles and system of government
o Institutions
o Power and responsibilities of the state
o Civil rights (Charter of Rights and Freedoms)
Relevant Charter Sections
- Fundamental Freedoms: (2) Everyone has the following fundamental freedoms…a) of conscience & religion; b) of thought, belief, opinion, expression; c) of peaceful assembly; d) of association
- Mobility Rights: (6.2.a)… right to pursue the gaining of a livelihood in any province
- Equality Rights: (15.1 and 15.2)… Everyone is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination…. Except where discrimination ameliorates situation for historically oppressed…
Charter of Rights and Freedoms: Section 15
- (1) Every individual is equal before and under the law and has the right to the equal protection and equal 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
- (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability
- The charter applies only to government acts and conduct but:
o ALL LAWS AND DECISIONS PASSED AT ANY LEVEL OF GOVERNMENT MUST CONFORM WITH THE CONSITITUTION (and the charter is part of the constitution)
A legal framework for Employment
- Human Rights Laws: Statutory, but considered quasi-constitutional
Regulatory Regime
- Legislation made by government, includes Human Rights
Common Law Regime
- Judge-made law, including contracts and torts
Collective Baraining Regime
- Rules regarding collective action
(ON) human rights code: employment-related protected grounds
- Age, Ancestry, colour, race, citizenship, ethnic origin, place of origin, creed, disability, family status, marital status (including single), gender identity, gender expression, record of offenses*, sex (including pregnancy and breast-feeding), sexual orientation
- *Can’t discriminate if you have a pardon
- *Also cannot discriminate against provincial level offenses that do not relate to the job (ex. Speeding tickets)
Human Right Law protect against discrimination
Direct
rule, practice, preference, restriction that on its face treats a person differently or unequally based on a prohibited ground. Ex. Married man wanted for…
Adverse Affect
rule, practice, preference, restriction that is neutral on its face, but which inadvertently or indirectly operates in a manner that discriminates. Ex. You must be 5’10 to apply… *discriminates against women, ethnic groups
Systemic
unintentional discrimination arising from pattern of behaviour that is rooted in established stereotypes, attitudes and value systems that perpetuates the relative disadvantage of a protected group
E.g. relationships/deals formed on the golf course…*discriminates against family status, religious groups
By Association
: association, relationship, dealings with another person protected under code. Ex. Parent of disabled child overlooked for promotion….
OHRC: Defenses of prima facie discrimination
- Bona fide occupational requirement
a. Reverse discrimination is giving preference to members of groups such that others feel they are the subjects of discrimination - Special service organizations
- Nepotism (for or against)
- Medical/Personal/attendants/homeworker/domestic worker (in-home only) *person who owns the home can decide which type of person
- Special (affirmative action) programs
- Bona fide pension or insurance plans – ex. Young men pay more for insurance plans
Bona Fide Occupational Requirement (BFOR)
- Does workplace standard that is prima facie discriminatory (directly or indirectly) qualify as a BFOR? Employer must establish:
1. The standard, policy or practice was adopted for a purpose rationally connected to the job. Is it discriminatory on its face and is it a protected ground?
2. The standard, policy or practice was adopted in honest and good faith belief it was necessary to fulfill legitimate work-related purpose. Go through test and is it needed for the job?
3. The standard, policy or practice is reasonably necessary to fulfill that legitimate work-related purpose, and that it is virtually impossible to accommodate the employee without imposing undue hardship on employer. Can we accommodate w/o undue hardship?
Duty to accommodate:
- Requirement that an employer must accommodate the employee to the point of “undue hardship”
o Cost
o Health and safety requirements - Principle of accommodation based on 3 factors
o Individualization
o Diginity
o Inclusion
Job accommodation process
- Four-step process for disability accommodation:
1. Can employee fulfill their existing job as presently constituted?
2. Can employee perform care aspects of existing job in modified form?
3. Can employee fulfill duties of another job in present form?
4. Can employee perform another job in modified form?
Limits to duty to accommodate
- Supreme Court of Canada (2008):
- “The test is not whether it [is] impossible for the employer to accommodate the employee’s characteristics. Although the employer does not have a duty to change working conditions in a fundamental way, it does have a duty, if it can do so without undue hardship, to arrange the employee’s workplace or duties to enable the employee to do his or her work. The test for undue hardship is not total unfitness for work in the foreseeable future. If the characteristics of an illness are such that the proper operation of the business is hampered excessively or if an employee with such an illness remains unable to work for the reasonably foreseeable future even though the employer has tried to accommodate him or her, the employer will have satisfied the test. The employer’s duty to accommodate ends where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future”
BFOR- a standard seems to have discriminating impact.
- Exception to anti discriminatory laws
- Firms get to “pass” and discriminate based on those requirements
- Even though it comes with discriminatory element, it is ok.
Other grounds of discrimination
- Also protected in OHRC: o Association o Reprisal - Bill 164 proposed new grounds: o Immigration status o Genetic characteristics o Police records o Social condition
UNDERSTANDING PRIVILEGE QUESTIONS
Process of appealing
- Inquiry and screening (launch a complaint)
- Early resolution and mediation
- Formal complaint
- Notification (contact employee to determine if complaint is valid)
- Mediation (bring ppl in)
- Investigation
a. Conciliation
b. Tribunal
Diversity Management
• Combination of organizational policies and practices that supports and encourages employees differences in order to reach business objectives
Statutory Law
- A statute is a law passed by government (“legislation” or “act”)
o Regulations are rules/orders imposed by administrators about HOW to implement Act
o Bill 148
o A “Bill” is an amendment to the law
Jurisdiction: Employment regulation in Canada
Federal (about 10%) o Aeronautics o Shipping and Navigation o Railways o Banks o Interprovincial Bus and Transport Companies o Communications (telephone, television, radio) o Atomic Energy
*** Similarities - businesses that go across borders
Provincial (about 90%)
o All other areas of commerce and employment. Ex. 7-11, Canadian Tire, Mcdicks, Walmart
Jurisdiction: Some laws relating to employment (Federal)
Canadian Labour Code
Canadian Human Rights Act
Personal Information Protection and Electronics Documents Act (PIPEDA)
Employment Equity Act
Jurisdiction: Some laws relating to employment (Provincial)
Ontario Human Rights Code 1990
Employment Standards Act, 2000
Occupational Health and Safety Act, 1990
Pay Equity Act, 1990
Accessibility for Ontarians with Disabilities Act, 2005
Workplace Safety & Insurance Act, 1990
Labour Relations Act, 1995
(ON) Employment Standards Act, 2000
Minimum basic working conditions and obligations of employers
o Hours of work, scheduling, overtime, pay, records
o Vacation time and pay
o Leaves of absence
o Termination and severance
o Addresses specific issues: example wage deductions
Applies to most workers, and sets out exemptions
Bill 148 made significant amendments to the ESA (and other labour and employment laws)
(ON) occupational Health and Safety Act, RSO 1990
Governs employer responsibility for healthy and safe workplace
Bill 168: includes violence and harassment in health & safety legislation
Bill 132: Specific to sexual violence and harassment
Administered through government agency – ministry of labour
(ON) Labour Relations Act, 1995
Governs process and procedures between trade unions and employers, including certification, collective bargaining, job action, dispute resolution and decertification
Administered through Ontario Labour Relations Board
Federally regulated employees are governed by the Canada Labour Code
Accessibility for Ontarians with Disabilities Act, 2005
Designed to redress historical discrimination against persons with disabilities by developing accessibility standards an removing barriers:
Employer obligations:
- Let applicants know hiring process will be modified to accommodate disabilities if required
- Build accessibility needs into human resources practices
- Create written processes for developing individualized accommodation plans (large orgs only)
- Help persons with disabilities stay safe in emergencies
- Plan, design and train employees about/for accessibility
(On) Pay Equity Act, R.S.O. 1990 –applies to all employers 10 or more employees
Two principles:
o Equal pay for equal work
o Equal pay for work of equal value
o Pay equity also addressed in Bill 148 (ESA amendment)
(FED) Employment Equity Act
Federal legislation that focuses on employment of certain groups that have been historically disadvantaged; requires proactive measures to improve employment opportunities for:
- Women
- Visible Minorities
- First Nations
- Persons and disabilities
Special Case: Privacy
- No absolute right to privacy in Canada, legislation is patchwork…
- 4 main statutes generally focus on collection, use and disclosure of personal information collected by organizations:
o Personal Information Protection and Electronic Documents Act (fed)
o Freedom of Information and Protection of Privacy Act (ON)
o Municipal Freedom of Information and Protection of Privacy Act (ON)
o Personal Health Information Protection Act (ON) - Torts of “intrusion upon seclusion” and “public disclosure of private facts”
Special Case: Harassment
- Harassment (general and sexual) protected in several places:
o Human rights legislation (OHRC)
o Occupational health and safety legislation (Bills 168 & 132)
o Also a new tort of harassment in Ontario (tort: a wrongful act or an infringement of a right (other than under contract) leading to civil legal liability)
Judicial Framework: Enforcement
- Administrative System:
o Agencies conduct inspections, investigate complaints, make rulings, issue orders
o Tribunals make decisions in specialized areas governed by statutes; quasi-judicial
o Ex. Human Rights Tribunal of Ontario and Ontario Labour Relations Board
** Do this if your rights are violated - Court System:
o Judicial review
o Common Law issues
Consequences to employers for violating human rights
Typically, at least one order to:
- Compensate (possibly with interest) for pain, humiliation, injury to self-esteem, loss of health and welfare (25% of cases) - remedies getting larger
- Compensate (possibly with interest) for lost wages/salary (17%)
- Display Human Rights Code
- Stop unlawful conduct
- Hold human rights workshop/training
- Offer of employment/promotion
- Pay costs of complaint
- Others
Employee Types
- Regular full-time employees
- Regular part-time employees
- Casual employees – ex. Supply teacher – people get called in to backfill (no specific regular hours)
- Temporary workers – ex. Agriculture, seasonal
- Interns: paid and unpaid
- Contractors: dependent and independent
Regarding unpaid internships
You must be paid in Ontario (i.e. you are an employee) unless (all of):
o The training is similar to that of a vocational school
o Training is for benefit of the individual (ex. to gain skills)
o Employer derives little, if any, benefit from intern’s activities (firm can’t profit or benefit from unpaid labour)
o Intern cannot be promised full or part-time paid employment at end of internship (not a free probationary period for employers)
o Intern must be told they will not be paid
See ESA s.1(2) Person Receiving Training: Note unpaid internships are permissible if part of an authorized co-op program)
A spectrum of employment types
An employee or not an employee?
Independent Contractor: less tax, do not work for a wage, can terminate on commercially reasonably less notice
- Need a contract
- Contractor has control over how they do the work
- Make sure contractor works for various companies (economic dependence)
- Incorporated – whose business?
- Have their own tools
Where problems arise: end of employment, Canada revenue, contract worker wants benefits, when a contractor gets hurt and no one has been contributing to insurance
Braiden vs. La-Z-Boy
- Employee or not?
- Proper notice or not?
- Employee/contractor relationship based on facts
- Employee test (5 Factors)
o Had his own car, tools, office space – besides this he was an employee - Notice Period
o 1 week of notice for every year they have been working up to 8 weeks. (ESA minimum)
o clause said that he was entitled to 20 weeks - Employer/Employee power imbalance
- ESA minimums: termination and severance
- Reasonable notice: 20 weeks
- Bardal Factors: seniority, age, etc all play into getting more notice since finding similar employment is much harder at his age and work level.
Common Law
The body of law derived from judicial decisions, rather than from the constitution or statutes
Based on precedent (previous decisions)
o Can be binding or
o Can be persuasive
Employment Contracts
Three Elements:
- Offer
- Acceptance
- Mutual consideration
- Contract complexity and length should be equal to the complexity of the job
- Verbal contract is legitimate but it is hard to prove/enforce when issues come up
Sources of employment contract terms
Expressed Terms: terms stated in writing or explicitly agreed to orally
Ancillary terms: terms in ancillary documents that may be incorporated into the employment contract
Implied Terms: terms read into the contract by judges to fill voids in expressed contract terms – always in favour of the contractor
Some common expressed terms
- Job description, remuneration, term of contract, termination clause, probationary period, relocation, benefits, ownership of intellectual property, restrictive covenants (read carefully – non-compete and restriction on clients), choice of law/jurisdiction, corporate policies, entire agreement clause, inducement – getting credit for experience, independent legal advice, severability
Some common implied terms
Employees have implied obligation to:
o Obey lawful orders of employer
o Cooperate in advancing employer’s commercial interests
o Not to compete and to protect confidential information
o Perform competently and safely
o Be honest
o Avoid lateness and absenteeism
o Avoid intoxication
o Avoid harassment
o Provide reasonable notice or resignation
Employers have implied obligations to:
o provide reasonable notice of termination of contract
o provide reasonably safe work environment
o treat employees with decency, civility, respect, dignity and to engage in fair dealing
o permit employees to report to work
o compensate employees for work performed
Employment contracts – Common enforceability issues
o Failure to meet minimum statutory standards o Inequality of bargaining power o Use of ambiguous language o Obsolescence o Lack of consideration
FYI: Tort law and employment
Tort: a wrongful act done by one person to another for which there is a legal remedy
More common torts in employment o Intentional infliction of mental suffering o Assault and battery o Intimidation o Defamation o Inducing breach of contract o Negligence
TedTalk: What will future jobs look like?
“More and more things that look like science fiction and less things that look like jobs”
androids doing a lot of the work we are doing right now
more and more technology and less and less jobs “the new machine age”
the best economic news on the planet 1. Tech progress is what allows output to go up and prices go up and volume and quality go up (abundance) – exactly what we want our economic system to provide 2. We get freed up from drudgery and toil (we don’t have to do things we don’t want to do anymore
amazing new possibilities (craftsman’s and hobbyist are now innovators)
great flourishing
two challenges we are going to face:
o tough to offer your labour to an economy that is full of machines
o total wages paid out to the economy at an all-time low
need a large stable prosperous middle class – however middle class is under huge threat right now
inequality and polarization continue to go up
as we start to automate the economy – the lower class becomes less well-off and the richer just get richer.
Work saves a man from three great evils - Boredom vice and need
Encourage entrepreneurship, double down on infrastructure and ensure people get an education in the short term
Long term – guaranteed minimum income (associated with extreme left wing),
Social mobility is lower than northern euro countries
5 million Americans have been unemployed for more than 6 months
generate inequality instead of opportunity
the facts are getting out there and the changes in the economy are becoming very well known
awareness is going to sink in that things are going to be different – then we are off to the races – we know how to solve challenges
the plain facts of the machine age are becoming clear, and with this knowledge that people have, we are going to use them to create a good course into the challenging economy that we are about to be faced with in the near future
HR Functions
- Job analysis and design
- Recruitment
- Selection
- Training
- Development
- Performance management
- Compensation
- Discipline
- Separation