Module 3- Legal Requirements & Diversity

Question 1

Legal Requirements & Diversity

Answer 1

Employment relations- heavily regulated by law

When faced with a legal challenge in practice- must determine first determine which laws apply (both for federally regulated employers and provincially) – not all matters are regulated in all jurisdictions
-no pay equity in SK law

-3 major areas of law concerned with in HR – 1- human rights law 2- employment standard 3- all of the laws and regulations related to labour relations – only relevant to employers who are unionized

Question 2

The Canadian Charter of Rights and Freedoms

Answer 2

Enacted 1982; can be amended or repealed only by an act of Parliament consented to by at least 2/3 of the provinces that together represent at least 50% of the population.

Guarantees fundamental rights. Most important to HRM are:
-Right to live and seek employment anywhere in Canada
-Freedom of thought, belief, opinion and expression
-Equality rights without discrimination based on race, creed, colour, religion, sex, age, national/ethnic origin or disability
-Freedom of association
-Interesting fact: no right to own property in Charter (unlike US constitution, German Basic law)

Charter rights are not absolute, they can be limited by law “as can be demonstrably justified in a free and democratic society”.-subject to debate

Charter applies only to governments (federal/provincial) and their agencies, not to individuals

Government can place proposed legislation before the Supreme Court to determine it being constitutional (example: same-sex marriage).

Question 3

Important legal document

Answer 3

The Canadian Charter of Rights and Freedoms

Defines some fundamental rights

Freedom of thought, belief and opinion (equality rights)
Freedom association- context of labour relations

Charter has limited practical application to the day to day employment relationship of most employment in Canada b/c only applies to actions of federal and provincial government and their jurisdictions –doesn’t directly apply to the actions of individuals or individual private section employers
-new laws have to be aligned/comply with charter or can be challenged (e.g. in Quebec- no religious regalia in the workplace )- might argue it’s a violation of the charter

Question 4

Human Rights Legislation (HRL) – The Basics

Answer 4

Exists at federal level and in all provinces
-Federal: Canadian Human Rights Act
-Provincial: The Saskatchewan Human Rights Code

Aims for equal employment opportunity by prohibiting discrimination based on certain grounds

Prohibited grounds fairly uniform across jurisdictions with some minor variations

Most relevant grounds in practice: disability, age, sex, national/ethnic origin, race

HRL essential in almost all HR disciplines (hiring, promotion, compensation, termination)

HRL does not prohibit “discrimination” based on performance, seniority, experience, education, etc.

Cases are heard by Human Rights Commissions/Tribunals not the courts

Question 5

HRL Cont

Answer 5

Prohibits discrimination in workplace on certain grounds (some common ones- race, religion, marriage status)

-basing any HR decisions on a prohibited ground is illegal (e.g. adopt policy were organization only hire Asian people as manager- illegal) – only prohibits discrimination on these certain grounds
-e.g. organization only promote to manager if have at least 5yr experience- that would probably be okay

• To avoid court from being overflowed, simpler and faster to file complaints rather than lawsuit

Question 6

Types of Discrimination

Answer 6

Direct:
-Treating an employee less fairly than other employees based on a prohibited ground.
-Example: Providing mental health support under the employee assistance program only to employees age 40 and above

Indirect (systemic):
-Unintentional discrimination where workplace policies and practices de facto discriminate against employees based on a prohibited ground.
-Example: Requiring all employees of a lawnmower/snowblower repair shop to be able to lift at least 50lb even if not required for regular job duties, excluding women unable to lift 50lb.

Reverse:
-Treating a member of a protected group (women, visible minorities, people with disabilities, indigenous people) more favourably than another employee, usually a white male employee.
-Example: promoting a woman into a management position if there are two equally qualified candidates (1 man, 1 woman) in order to increase women representation in management.

Question 7

Exception:

Answer 7

**Exception: discrimination is allowed if it is a bona fide occupational requirement (BFOR).

**Example: a film crew requires a female actress for playing the role of a woman in a film production

Question 8

Direct

Answer 8

rather real (don’t promote Asian people, or based on age or marital status)
-e.g. only give international assignment to single people –discrimation and prohibited

Question 9

Indirect

Answer 9

(much more common in practice)

Typically happens when policy is set with no intention of discriminating, however practically certain groups are disadvantaged (often happens with physical disabilities – lifting weight,
-e.g. or access to training maybe only for full time, but majority of part time are women then indirectly discriminates against women

Question 10

Reverse discrimination

Answer 10

really tries right a previous wrong, actively discriminate discriminate against an employee in favour of an underrepresented group
-in real world don’t usually have 2 totally equal candidates, theoretical example

Question 11

Discrimination cont

Answer 11

Don’t promote simply b/c they have a required trait/personal.
-Trait (e.g. a women) if they do not have the proper skills/ abilities for/to do the job (no good for company or candidate)
– might face high performing employees in that department wont work for an incompetent manager

Exception to the rule (About not being able to discriminate on prohibited grounds): called a bona fide occupational requirement
– it is a very common defence which employers will raise if they are faced with a claim of discrimination, basically a justified business reason why you do discriminate based on a prohibited ground
– common in arts or faith-based organizations (e.g. church – require you are a member of that faith)- or language is a job requirement (can’t be discriminated against if speaking that certain language is a job requirement)

Question 12

Prohibited Grounds*

Answer 12

Where it matters in practice

Sex
⇨ Physical requirements (height, weight, ability to lift)
⇨ Glass ceiling
⇨ Old boy’s networks

Religion
⇨ Time off for religious duties during regular working hours
⇨ Access to dedicated rooms to practice religious duties during working hours

National/Ethnic Origin
⇨ Anglophone vs. non-anglophone names
⇨ Linguistic background (even if fluent in English/French)

Age
⇨Need for phased-in retirement
⇨No mandatory retirement
⇨Workplace adaptation for older workers

Disability
⇨One of the most often invoked ground in practice
⇨Increasingly an issue with mental illness resulting in disability
⇨Addiction as disability

Sexual Orientation
⇨Same-sex partners recognised as spouses
⇨Benefit coverage and related costs

Question 13

Sex discrimination

Answer 13

very common, usually indirect

Glass ceiling ; women are promoted in an organization only until a certain level (hardly ever vice president)
-been common that not hire young women b/c of family

Old boys network: informal network of influential males who promote each other (e.g. let each other know when positions open up-promote buddies, women don’t even hear)– career groups for women have since started up

Question 14

Religion

Answer 14

time off and religious duties example; Friday prayer for Muslims (employer must give time off- but then leads to turmoil with coworkers – feel they accommodated bc of religion now don’t get accommodation

Question 14

Nationality/ethnic Origin

Answer 14

did research survey test on chances of getting interviewed used white, black, Asian, Indian names on resume and see who got call back (resume exact same –anglophone names got interviews a lot more)
-e.g. want to sent people abroad -need to send to France- send a European b/c don’t need a work permit

Question 14

Age

Answer 14

very common- usually happen with layoffs (lay them off first- cost more- salary, expenses)
Or adapt physical work place

Question 15

Disability

Answer 15

increased over past few years both physical and mental- need on going proof basically

Question 16

What might someone be discriminated against that is not a prohibited ground?

Answer 16

-e.g. discriminate perfectly legally by saying you hire only internally which is okay

-or discriminate based off of which university someone attended or a list you don’t hire from, can do that

Question 17

The Duty to Accommodate

Answer 17

Often arises in the context of scheduling conflicts of work duties with religious duties or for employees with disabilities

Applies to the employers, and if present, the union

Depending on proposed solution union consent may be required

Duty to accommodate up to undue hardship**

Search for suitable accommodation is multi-party task

Employee has no right to “perfect” accommodation but obligation to accept reasonable accommodation

Conduct of employee impacts whether duty of accommodation has been fulfilled by employer

If employee refuses reasonable accommodation, employer’s duty is discharged

What accommodation is reasonable and when “undue hardship” is reached for an employer depends on facts of each individual case

Question 18

What determines “undue hardship”?

Answer 18

• Costs for employer
• Impact on other employees
• Impact on employer’s operations
• Size of employer
• Impact on CBA, if existing
• Health & safety

Question 19

Undue hardship

Answer 19

Hardship- essential –what is undue? – if cost is so prohibited that the employer would go bankrupt then undue hardship- don’t have to go out of business to accommodate an employee
-e.g. assume small business of 10 employees in old historic building, no elevators, uses ground and first floor – one employee in accident and needs wheelchair –prior to accident on first floor– should accommodate by moving desk to ground floor however the employee would like an expensive elevator built into this historic building so can go to previous offer (undue)
-e.g. Ontario – employer failed to accommodate bipolar disorder – employer fired and said can’t work under stress – this was found employer failed on duty to accommodate until undue hardship
-what is hardship for one company might not be for another

Question 20

What courts actually look into to determine if accommodation is undue hardship

Answer 20

-large employers are usually required to do more than small b/c assume larger have more financial impact – look at how coworkers will interpret
-have to be reasonable accommodation
-employees have obligation to cooperate
-usually based on individual case

(What determines “undue hardship”? slide)

Question 21

Enforcement of HRL

Answer 21

Lies with the Canadian Human Rights Commission (CHRC) for employers under federal jurisdiction and the Saskatchewan Human Rights Commission (SHRC) for employers under provincial jurisdiction.

CHRC and SHRC facilitate dispute resolution incl. through a mediation process. If no resolution can be found, the CHRC refers cases to the Canadian Human Rights Tribunal (CHRT) and the SHRC to a court process.

Enforcement of HRL is complaint-based (thus, if not complaint, no consequences)

Retaliation by employers against employees filing a Human Rights complaint are prohibited and subject to fines.

Question 22

Typical remedies for HRL violations

Answer 22

-Reinstatement
-Compensation for lost wages
-Compensation for lost benefits
-Employer to issue an apology
-Employer to stop discriminatory practice
-Compensation for suffering

Question 23

Enforcement of HRL

Answer 23

Usually heard first at humans rights commission or tribunals –prevent court from being flooded/easier access for employees

-if dispute resolution doesn’t work then go onto tribunal phases- to be addressed from hearing

-in sk if not resolved at commission stage will go into the court
-if possible, a party is not happy with the ruling of the tribunal can file an appeal and go to court system

Human rights systems across Canada have been critized for being too slow, expensive, some provinces have abolished then (Ontario/bc- go right to tribunal)

-no complaints- no hearing
-employees are afraid to file b/c scared or not aware of rights that they can complain

-might order employer to issue apology
-not a big fan of reinstatement b/c if dispute has gotten so bad went to ruling can assume relationship is damaged so to go back to same to same job potential for more conflict b/c no trust

Question 24

Contemporary Issues in HRL*

Answer 24

Hot Issues
-Drug Testing
-Privacy at Work
-Off-duty Social Media Conduct

Changes in society due to technology- new HR challenges

Question 25

Off-duty Social Media Conduct

Answer 25

How to balance employees’ freedom of expression with employers’ interest safeguarding its reputation?

What should employers’ policies on off-duty social media use be?

Should there be employment consequences for illegal work-unrelated social media use?

-Off duty conduct and privacy cause lots of legal challenges

Question 26

Privacy at Work

Answer 26

Is there any expectation of privacy on an employer-owned laptop?

Can employers install CCTV cameras in workplaces?

Can employers monitor employees via software programs?

Question 27

Drug Testing

Answer 27

Should random drug testing be allowed?
-for all employees?
-only those in safety-sensitive roles?

Is there a difference between drug and alcohol testing?

Are employees required to disclose past drug/alcohol addiction?

Question 28

Drug Testing cont

Answer 28

Drug testing: of employees who are already employees – can you employ random drug and alcohol testing for employees, especially safety equipment? –in Ontario can lead to discrimination based on disability if a positive drug test leads to negative consequences for the employee
-e.g. removal from a current safety sensitive position- employee past drug problem- policy and disclosed he used them in past – he was removed from position only under condition he would allow random drug test- filed for discrimination of disability (drug addiction)- ruled in favour of employee (not reasonably necessary for safety )

-alcohol testing is reasonable b/c it is for current right now situation- but drug is in the past (doesn’t indicate if they are impaired right now- only consumed in the past)

Question 29

Regulations

Answer 29

Post ash mining, agriculture - regulated provincially

-uranium mining, Private sector firms in the Yukon, North West Territories, grain elevators, Radio and television broadcasting, The port of Vancouver (ports in general)- regulated federally

Question 30

Diversity & Inclusion

Answer 30

Is today considered a competitive advantage but likely not yet fully utilized
-Need for companies to be reflective of their consumer base
-Shifting values in society
-Increased pressure from institutional investors (i.e. pension funds, sovereign wealth funds)

Fully embracing vs. “political correctness”

Goes beyond traditional definition of race, gender, ethnicity, age, sexual orientation and nationality

Includes secondary dimensions of diversity, e.g. first language, income and family background/status

Diversity means inclusiveness to embrace many different ideas and ways of thinking thereby fostering creativity and innovation

The representation of members of visible minorities in the federally regulated private sector increased in recent years

Diversity expected to remain key topic for HR professionals in the years to come

Research in the US showed that cities open for talent which may not be considered “mainstream” are economically more successful (San Francisco, Boston, Austin)

Question 31

Diversity & Inclusion Cont

Answer 31

Diversity and inclusion more of a focus for HR in past few years and years to come

-increase of diversity in workforce- HR policies must keep up
-diversity can lead to better economic outcomes – diversity should match the customer base

-question of quotas; means mandatory quoatas which require a certain amount of board roles (ex. 30%) must be women
–no mandatory quotas in Canada but there is in other countries – controversial topic

-progressive employers coverage for trans procedures

-be mindful- increase diversity/thought = increase in diversity of forms of employment (part time, temp work, self employment, etc.) nontraditional forms of employment

Question 32

Harassment

Answer 32

…is prohibited in the Canadian Human Rights Act declaring it a discriminatory practice to harass someone on a prohibited ground of discrimination in matters related to employment.

Sexual harassment as one form of harassment addressed in laws at federal level and in some provinces (ON, QC, MB).

In SK, harassment not specifically defined in SK Human Rights Code

Responsibility of employer for action of their management

Personal perceptions of what amounts to harassment; thus harassment is assumed if “reasonable person ought to have known that behaviour was not welcome”

Question 33

Examples of Harassment*

Answer 33

-Physical assaults
-Verbal abuse
-Threats
-Jokes causing embarrassment
-Racist or pornographic pictures
-Unwelcome remarks
-Unwelcome requests
-Intimidation
-Leering
-Paternalism that undermines self-respect
-Unnecessary physical contact, e.g. touching
-Ongoing unsolicited sex-based conduct

Question 34

Trends in Harassment

Answer 34

Cyberbullying

Sexual Harassment of men

Question 35

Harassment

Answer 35

Unfair treatment of employees on prohibited ground of discrimination (age, sex, religion)
-can be verbal or physical, one time or continuous, by coworker or boss, doesn’t have to happen at the work place (cyberbullying) -has become a challenge

-harassment must be unwelcome –if reasonable person would know it was unwelcome
-implied obligation of employer to avoid employee being harassed (implied term – not explicated spelled out in contract but implied into by courts)

-SA of men has also been on the rise too

-list is common examples

-multicultural workplace – what’s accepted in one culture might not be accepted in another (ex. Greet with kiss on cheek in Italy)

Question 36

Harassment cases

Answer 36

can be quite costly (ex. in Ontario with Walmart assistant manager – manager wanted her to force a temperature lock, she refused, manager started a 6 month worker harassment/intimidation against assistant manager
–she complained to HR with no success
–so she quit and sued for constructive dismissal (is such a fundamental change in employment contract by employer that employee treats it as effectively terminated) –employee initially got thousands of dollars for harassment from the manager and 1.2 million against Walmart – tried to appeal and numbers were reduced – harassment can be expensive

Question 37

Employment Equity Programs

Answer 37

Employment Equity Act (Federal)

-Requires employers with 100+ employees under federal jurisdiction (private and public) to put in place an employment equity plan to address barriers and under-representation of the designed groups (DGs)

-DGs are: women, people with disabilities, indigenous people & visible minorities

-Employers to review their workforce, policies and practices to identify underrepresentation of DG

-Employers to set specific numerical goals in equity plans to address underrepresentation

-Employment equity plans need to be regularly reviewed and progress reports submitted

-Enforcement of the act is with the CHRC which can conduct compliance audits

Question 38

Employment Equity Programs

Answer 38

Are usually done on voluntary basis for employers under provincial jurisdiction

Aim is to address past discrimination and prevent future discrimination of
DGs and/or other marginalised groups in the workforce

Usually involves review of existing HR policies and practices and development of specific programs to target discrimination

Ideally involves employee involvement in program design

Senior management commitment is critical, otherwise no meaningful results.

Question 39

Employment equity act:

Answer 39

-only applies to employers under federal jurisdiction (banking, airlines, telecommunications etc.)- does not apply to most of private sector employers in Saskatchewan

-designated groups are women, visible minorities, disabled people and indigenous people- much narrower than prohibited ground of discrimination/human rights \

-employment equity programs ; typically voluntary in nature, usually adopted by employers under provincial jurisdiction
-also includes other groups like lgbtq+
-success of these employment equity programs are dependent of the commitment of senior management

Question 40

Pay Equity: The Gender Wage Gap

Answer 40

Women throughout the developed world continue to earn less than men

Contributing to the wage gap are differences in:
-occupation, qualification & experience (issue of occupational segregation)
-industry & firms
-union membership, and finally
-presence of discrimination

Pay equity legislation requires female-dominated jobs be compensated in the same way as male-dominated jobs of the same value

Usually requires employer to proactively (not complaint based) pursue equal pay for work of equal value between male-dominated and female-dominated jobs

Pay equity legislation in Canada prevalent in public sector, limited in private sector to few jurisdictions

At federal level: Pay Equity Act

No Pay Equity legislation (“equal pay for work of equal value”) in SK in either the public or private sector

Question 41

Contributions

Answer 41

-occupational segregation: means that women are usually segregated into lower paying jobs (caregiver or teacher) – more women graduates than men but in different degrees (arts vs engineering) – women tend to work more part time or in smaller firms/companies – or more men work in oil and gas pay well vs hospitality

-discrimination- less qualified men chosen for senior management over better qualified women, happens very often or actively discouraged for applying for these jobs/promotions

-no equity pay laws in SK

-human rights laws are complaint based, no complaint then no consequences vs pay legistlation requires a much more proactive approach by the employer and have to proactively develop pay equity plans – it also targets pay differences between men and women but not other marginalized groups vs human rights which target race and ethnicity

As of 2018 in Canada women only earned 87 cents to the dollar of men

Question 42

The Gender Wage Gap

Answer 42

The gender wage gap is defined as the difference between male and female median wages divided by the male median wages

Overview of the size of the gender wage gap
-Canada gap about 15%, above the OECD average gap
-higher bar = higher the wage gap
-traditionally has been high in Asian countries

Question 43

Employment Standards (ES)

Answer 43

Minimum wage

Paid vacation & paid holidays

Standard hours of work and overtime pay

Pay on termination of
employment/severance

Termination of employment and related notices

Maternity and parental leave

Other unpaid employment leaves

Question 44

ES

Answer 44

Are minimum standards employers can derogate from to the advantage of employee

For federal jurisdiction, see Canada Labour Code, Part III

Compared to other advanced economies (esp. in Europe), ES in Canada are weak

Question 45

ES cont

Answer 45

Important to understand employment standards set the minimum floor from which employer and employee can always derogate from the advantage of the employee
-e.g. min wage $12- agree on $20 benefit employee or employee work only 40hrs of week -advantage to employee

-in italics – not talking about in this video but later

-Canada employment standards are weaker than European unions and other countries (Australia) – ex. Prof had 6 weeks vacay in Australia, in Canada got only 4
-US has even weaker standards than Canada

Question 46

Working Hours – The Law

Answer 46

Federal
-Standard: 8 hours/day and 40 hours/week
-Max. 48 hours/week
-8 consecutive hours of rest between two periods of work
-30 minutes unpaid break for each 5 consecutive hours worked
-Numerous exceptions

Provincial (SK)
-Max. 44 hours/week
-8 consecutive hours of rest between two periods of work
-One/two days off per week
-30 minutes unpaid break for each 5 consecutive hours worked
-Numerous exceptions incl. for unexpected, unusual or emergency circumstances

Question 47

Basic overview on laws

Answer 47

-working hours laws tend to be the least effective in practice– typically define daily and weekly limits and period between 2 shifts – in European standards are much stronger (11 hours rest instead of 8)

-also define weekly rest periods and breaks, there are lots of exceptions – like swiss cheese lots of holes

Question 48

Working Hours – The Reality
For Employers

Answer 48

Growing competitive pressures due to globalization, changing trade and capital flows and new technologies

Evolving consumer demands

Anticipated labour shortage

Complicated working time rules put employers at constant risk of unintended non-compliance

Expenses in hiring lawyers/experts to help ensure compliance

Need for flexibility to schedule work with peaks and valleys of production cycle

Burnt-out/stressed employees leading to higher attrition, loss of productivity, higher accident rates, increased benefit plan costs

Question 49

Working Hours – The Reality
For Employees

Answer 49

Many employees work irregular hours, shifts, weekends or part-time often with unpredictable schedules

Need for more flexibility due to:
-Childcare challenges
-Need for elder care (aging parents)
-Single earner households
-Older workers in the workforce
-Fewer functioning family support networks

Increasing proportion of employees working extreme hours, 70+/week

24/7 availability

Significant deterioration of work-life balance due to technological developments

Question 50

Working Hours cont

Answer 50

In some industries – might be completely normal to work more than 80hrs per week
-today there is more awareness about issue of excessive working hours and there negative health consequences

-technology today really allows the employee to be available 24/7- more working from home the boundaries between work and life are blurred
-some employees may never be able to truly disconnect

-can lead to employee burnout

For employers
-face lots of pressure- competition- want employees to be available
-rules can be so complicated – how difficult it can be for small companies to comply or even be aware of the rules – ex. Scheduling failure for 24 hour company (her failure)

Question 51

Public Holidays, Vacation & Unpaid Leaves (SK)

Answer 51

Public holidays: New Year’s Day
Family Day
Good Friday
Victory Day
Canada Day
Saskatchewan Day
Labour Day
Thanksgiving Day
Remembrance Day
Christmas Day

Vacation
(3 weeks) in SK

SK a little more progressive with vacay- minimum is 3 weeks, AB is only 2
-SK offers lots of unpaid employment leaves- employer has to hold job until they return and cannot terminate employee during leave for just not showing up

Question 52

Unpaid Employment Leaves*

Answer 52

Maternity leave (max. 19 weeks)
Adoption leave (max. 19 weeks)
Parental leave (max. 59 with maternity/adoption leave or max. 71 weeks without)
Organ donation leave (max. 26 weeks)
Compassionate care leave (max. 28 weeks)
Bereavement leave (max. 5 days)
Victim of sexual violence (max. 10 days)
Critically ill family care leave (max. 17 weeks for adult and 37 weeks for child)
Crime-related child death or disappearance (max. 104 weeks for death and 52 weeks for disappearance)
Citizenship ceremony (1 day)

Question 53

Enforcement of ES

Answer 53

In SK impacted employees or anonymous 3rd parties can file a complaint with Employment Standards Division.

But there are barriers to file complaints:
-Fear of reprisal
-Language and/or cultural barriers
-Inability to document the claim
-Lack of access to professional advice

Inspections of workplaces possible by Employment Standards officer.

Information and education campaigns often more useful to improve compliance than relying on complaints-based system.

Small firms often lack knowledge and/or operational capacity to be compliant

Question 54

Reasons for non-compliance by employers

Answer 54

Unawareness
Financial pressures
Low probability of getting caught

Most employers comply with most ES most of the time.

Question 55

Non-compliance is more common

Answer 55

In smaller employers

In certain industries, e.g. food and accommodation

In sectors with “fissured” structures, e.g. construction

Question 56

Employees most likely to be a victim

Answer 56

New immigrants

Low-wage earners

Non-unionised

Ethnic/racial minorities

Employees lacking job security

Question 57

Generally

Answer 57

Generally, a law is only as effective as its enforcement
-may not complain do to fear of consequences or might not be aware they can if employer violates employment standards (newcomers to Canada might not know bc not in their country)

Number one reason why employers might not comply: they are just not aware/don’t know what their obligations are
-others; b/c the probability of getting caught is low, or might be facing financial pressures can’t afford to
-noncompliance with employment standards is more of an issue in smaller employers and in certain industries/sectors (have employer relationships that are typically nonstandard – ex. Self contracting, franchising, labeling and self employed when they are not)