Module 3- Legal Requirements & Diversity Flashcards
Legal Requirements & Diversity
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
The Canadian Charter of Rights and Freedoms
Enacted 1982; can be amended or repealed only by an act of Parliament consented to by at least 2/3 of the provinces that together represent at least 50% of the population.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).
Important legal document
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
Human Rights Legislation (HRL) – The Basics
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
HRL Cont
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
Types of Discrimination
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.
Exception:
**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
Direct
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
Indirect
(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
Reverse discrimination
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
Discrimination cont
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)
Prohibited Grounds*
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
Sex discrimination
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
Religion
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
Nationality/ethnic Origin
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
Age
very common- usually happen with layoffs (lay them off first- cost more- salary, expenses)
Or adapt physical work place
Disability
increased over past few years both physical and mental- need on going proof basically
What might someone be discriminated against that is not a prohibited ground?
-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
The Duty to Accommodate
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
What determines “undue hardship”?
- Costs for employer
- Impact on other employees
- Impact on employer’s operations
- Size of employer
- Impact on CBA, if existing
- Health & safety
Undue hardship
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
What courts actually look into to determine if accommodation is undue hardship
-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)
Enforcement of HRL
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.
Typical remedies for HRL violations
-Reinstatement
-Compensation for lost wages
-Compensation for lost benefits
-Employer to issue an apology
-Employer to stop discriminatory practice
-Compensation for suffering
Enforcement of HRL
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
Contemporary Issues in HRL*
Hot Issues
-Drug Testing
-Privacy at Work
-Off-duty Social Media Conduct
Changes in society due to technology- new HR challenges
Off-duty Social Media Conduct
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
Privacy at Work
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?
Drug Testing
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?
Drug Testing cont
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)
Regulations
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
Diversity & Inclusion
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)
Diversity & Inclusion Cont
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
Harassment
…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”
Examples of Harassment*
-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
Trends in Harassment
Cyberbullying
Sexual Harassment of men
Harassment
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)
Harassment cases
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
Employment Equity Programs
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
Employment Equity Programs
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.
Employment equity act:
-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
Pay Equity: The Gender Wage Gap
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
Contributions
-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
The Gender Wage Gap
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
Employment Standards (ES)
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
ES
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
ES cont
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
Working Hours – The Law
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
Basic overview on laws
-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
Working Hours – The Reality
For Employers
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
Working Hours – The Reality
For Employees
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
Working Hours cont
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)
Public Holidays, Vacation & Unpaid Leaves (SK)
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
Unpaid Employment Leaves*
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)
Enforcement of ES
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
Reasons for non-compliance by employers
Unawareness
Financial pressures
Low probability of getting caught
Most employers comply with most ES most of the time.
Non-compliance is more common
In smaller employers
In certain industries, e.g. food and accommodation
In sectors with “fissured” structures, e.g. construction
Employees most likely to be a victim
New immigrants
Low-wage earners
Non-unionised
Ethnic/racial minorities
Employees lacking job security
Generally
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)
