LEGAL ISSUES IN HRM LEGAL ISSUES IN HRM 1

Announcements ELM update Assignment ◦ Compare any 2 organizations ◦ Functions such as recruitment, selection, compensation,, training and development, labour relations, etc. ◦ What are the differences and why? What problems are the companies experiencing in HR/LR practices and how are these being resolved? Guest speaker Anthony Celani next week 2

Lecture Agenda Overview of Canadian legal context Charter of Rights and Freedoms Human Rights Legislation Employment Standards Legislation Equity Legislation ◦ Employment Equity ◦ Pay Equity 3

Legal Issues in HRM Must consider the law when deciding: ◦ Which employee(s) to hire ◦ How to compensate employees ◦ What benefits to offer ◦ How to accommodate employees with dependents ◦ How to accommodate employees with disabilities ◦ How and when to fire employees ◦ How to manage health and safety 4

5 Why obey the law (related to employment)? Organizations are embedded in society ◦ Must also serve social interests It’s all about fairness ◦ Employment laws are intended to ensure fair treatment of employees ◦ Clarifies rights and responsibilities for all parties Other benefits ◦ Fair treatment of employees may have positive organizational impact

Canada’s Legal Environment re: Employment Constitutional Law ◦ Charter of Rights and Freedoms Statutes or Legislation ◦ Acts of federal and provincial parliaments Common Law ◦ Not derived from specific legislation ◦ Based on judge’s decisions Contract Law ◦ Individual employment contracts, collective agreements 6

Charter of Rights and Freedoms Part of the Constitution Act, 1982 Provides a range of fundamental rights to Canadians ◦ Freedom of conscience and religion ◦ Freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication ◦ Freedom of association ◦ The right to live and seek employment anywhere in Canada ◦ Etc. 7

Charter of Rights and Freedoms Section 15: Principle of equality ◦ Freedom from discrimination “Every individual is equal before and under the law… without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.” 8

Charter of Rights and Freedoms Subsection (1) of Constitution Act ◦ “does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups…” ◦ Implies that programs which favour individuals from certain groups (to overcome previous disadvantage) are OK  E.g., employment equity programs 9

Charter of Rights and Freedoms HRM Applications ◦ Freedom of association (section 2) has implications for labour relations ◦ 1987 Supreme court decision: ◦ Includes right to organize and belong to a union ◦ Does not include the right to bargain collectively and strike—are not fundamental freedoms, but are regulated by legislation Affects HRM, but more indirectly ◦ Generally speaking, other legislation needs to meet the standards of the Charter ◦ Cases decided in Supreme Court June, 2007 Supreme court decision reversed this  Suggested that right to bargain collectively is a fundamental human right 10

Human Rights Legislation Purpose ◦ Prohibits discrimination in employment and in the provision of goods and services ◦ To provide equal employment opportunities (i.e., prevent discrimination) to members of protected groups 2 levels of legislation ◦ Federal ◦ Provincial 11

Human Rights Legislation Federal ◦ Canadian Human Rights Act (CHRA,1978) ◦ Employers under federal jurisdiction ◦ About 10% of labour force  E.g., federal gov’t, crown corps, banks, airlines, etc. Provincial ◦ Ontario Human Rights Code (1990) ◦ Employers under provincial jurisdiction ◦ About 90% of labour force  E.g., manufacturing (GM), retail (Canadian Tire), service, etc 12

Prohibited Grounds of Discrimination Canadian Human Rights Act Pardonedconvicts National or ethnic origin Disability Marital and family status Religion Age Sex, sexual orientation Race and colour Slight variations between federal and provincial legislation

Discrimination Not specifically defined in federal legislation ◦ Involves practices that fail to provide equal opportunity to members of protected groups Direct (Intentional) Discrimination ◦ Employment practice that intentionally discriminates on a prohibited ground ◦ The deliberate use of prohibited grounds in employment decisions 14

Discrimination Indirect (Systemic) Discrimination ◦ Employment practice that results in discrimination against protected group, but is not intentional ◦ Focus on the impact, not intent ◦ Referred to as: Adverse Impact, Disparate Impact, Adverse Effect Discrimination, Constructive Discrimination ◦ E.g., height requirement for police officers discriminates against women, visible minorities ◦ E.g., employee referrals 15

Bona Fide Occupational Requirements Text refers to them as BFO Qualifications What is a BFOR / BFOQ? ◦ A job requirement that legally overrides human rights protection ◦ Allowed when characteristics needed to carry out the essential job requirements are related to a prohibited ground ◦ E.g., religious schools may hire only teachers of a particular faith 16

Bona Fide Occupational Requirements Examples of court cases involving BFORs Etobicoke, ON ◦ Policy of mandatory retirement for firefighters after age 60 ◦ 1982 Supreme court decision stated that being under 60 was not a BFOR  Inadequate evidence suggesting that reaching age 60 resulted in inability to perform the job 17

Bona Fide Occupational Requirements Examples of court cases involving BFORs Canadian Coast Guard ◦ Applicant with complete hearing loss in one ear was excluded from officer cadet training ◦ Coast guard cited the condition was a safety risk ◦ BFOR claim was denied because employer’s evidence of the safety risk was inadequate 18

Supreme Court Case re: BC Fire Fighter Woman employed in elite firefighting unit by province of BC for more than 2 years New fitness tests were introduced for unit She failed one of new tests (run 2.5 km in 11 minutes) and was fired Union grieved – got appealed to Supreme Court Court sided with complainant ◦ BC gov’t had failed to establish the fitness requirement as a BFOR – lack of evidence showing inability to meet it was a safety risk 19

Bona Fide Occupational Requirements When BFORs are upheld: Theatrical productions ◦ That require actors with particular characteristics Use of gender as selection criterion ◦ E.g., Male nursing attendants to provide bathing, etc. for male hospital patients ◦ E.g., RCMP guards must be of same sex as prisoners being guarded 20

Criteria used to assess BFOR In this decision, the court established 3 criteria to assess appropriateness of BFORs 1.Is the standard rationally connected to the performance of the job? 2.Was the standard established in an honest and good faith belief that it was necessary to accomplish the purpose identified in stage 1? 3.Is the standard reasonably necessary to accomplish its purpose? (i.e., must show it is impossible to accommodate employees without imposing undue hardship on employer) 21

Duty to Accommodate Requirement that employer must accommodate the employee to the point of “undue hardship” ◦ Aka: Reasonable Accommodation ◦ Employer is required to make certain adjustments to job content or working conditions if an individual cannot meet job requirements (due to BFOR) ◦ E.g., redesigning work stations, lighting, adjusting work schedules Undue hardship not specifically defined ◦ Factors to consider include financial cost, disruption of collective agreement, morale of other employees, etc. 22

O’Malley v. Simpson-Sears Ltd. O’Malley was a full-time sales clerk at S-S for several years; worked 2/3 Saturdays Became member of 7 th Day Adventist Church which observes sabbath from Fri – Sat PM No longer available to work on Saturdays Employer suggested she resign; she didn’t Employer cut her hours Lower courts sided with employer, saying this was not intentional discrimination Supreme Court ruled it was adverse effect discrimination (not intentional) Inadequate reason for not accommodating employee 23

Adverse Effect Discrimination as defined in O’Malley v. Simpson-Sears Ltd. “…an employer for genuine business reasons adopts a rule or standard which is on its face neutral, and which will apply equally to all employees, but which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work group” 24

25 Enforcement of Human Rights Legislation Complaint to Human Rights Commission ↓ Complaint notification ↓ Reasonable cause? ↓ Investigation ↓ Attempted resolution / Mediation ↓ Decision / remedy specified ↓ Acceptance or appeal

26 Remedies for Human Rights Violations May occur at various stages ◦ Early settlement, conciliation agreement, or tribunal decision Could include: ◦ Stoppage of discriminatory practice ◦ Restore rights, opportunities that were denied victim ◦ Reinstatement and/or compensation for lost wages ◦ Letters of apology ◦ Issuance of an anti-harassment policy by an employer (in cases of harassment complaints)

Video: Workplace Discrimination- 12 Danger Zones NyTvWc&feature=related What are your thoughts? What were some of the prohibited grounds of discrimination covered in this video? What would you do as a HR manager? 27

28 Employment Standards Legislation Provincial legislation (e.g., Employment Standards Act) addressing: ◦ Minimum wage rates ◦ Maximum hours of work ◦ Paid holidays and vacations ◦ Leave for maternity, adoption, bereavement ◦ Payment upon termination of employment Purpose ◦ Promote fair and productive workplaces ◦ Balance fair treatment of employees and employer concerns with productivity and flexibility

29 Examples from Ontario’s ESA Minimum wage rates - $9.50 as of April 1, 2009 (up to $10.25 in 2010) Maximum hours of work ◦ No more than 5 consecutive hours without.5 hr meal break ◦ Typically, 8 hrs/day or 48 hrs / week ◦ Max of 60 hrs / week (if agreed in writing) ◦ See: Pregnancy / Parental leave ◦ Birth mothers: 17 weeks pregnancy leave & 35 weeks parental leave ◦ Other parents: 37 weeks parental leave

Equity Legislation Proactive rather than reactive Purpose is to advance the employment circumstances of certain groups that have been historically disadvantaged 2 main categories of legislation: 1.Employment Equity 2.Pay Equity 30

Employment Equity Act Legislation aimed at improving the employment status of women, visible minorities, aboriginals, and people with disabilities Purpose is to address historical discrimination Called Affirmative Action in the US – although there are some differences in the two Applies to federally-regulated employers with 100+ employees BC has EE legislation; some have policies 31

Employment Equity Requirements of EE legislation ◦ Prepare a plan to achieve equity ◦ Timetable for implementation ◦ Submit on-going statistics ◦ Provide for reasonable accommodation  E.g., sign language for job interview with deaf applicant  E.g., adjust work schedules for employees to accommodate religious obligations EE has resulted in concerns with reverse discrimination 32

Employment Equity and HR Examples: ◦ HR planning should incorporate equity goals ◦ Job descriptions should not include requirements which exclude certain individuals ◦ Selection system must use non-discriminatory practices ◦ Training & Development opportunities must be available for all groups ◦ Promotion decisions must be free from bias ◦ Compensation must be based on skills, performance etc. What is one tool which would help an organization ensure these requirements are met??? 33

Pay Equity ◦ Women earn on average 82 cents for every $1 earned by men ◦ Many potential reasons for this gap: differences in work experience, education, occupation etc.  Although gap still remains when these are controlled ◦ Pay equity focuses on reducing the difference in pay earned by men and women 34

Pay Equity “Equal Pay for Equal Work” ◦ Job for job - same or similar pay “Equal Pay for Work of Equal Value” ◦ If two jobs have similar 1) skills, 2) effort, 3) responsibilities and 4) working conditions, then they are valued as the same Ontario & Quebec (& Federal) have legislation covering the public and private sector (orgs with >10 employees), while other provinces only apply to the public sector 35

Harassment Harassment based on any of the prohibited grounds ◦ No clear definition ◦ Occurs when a member of an org treats an employee in an offensive manner because of employee’s sex, race, religion, etc. ◦ Unwanted behaviour that creates a hostile work environment 36

Harassment CHRC’s standard ◦ Is harassment if “a reasonable person ought to have known that such behaviour was unwelcome” ◦ May include verbal abuse, threats, display of offensive material, practical jokes that cause embarrassment, unwelcome remarks, innuendo, etc. 37

Sexual Harassment Unsolicited or unwelcome sex- or gender- based conduct that has adverse employment consequences for target Includes range of behaviours ◦ Verbal – comments, etc. ◦ Non-verbal – display of pornographic material ◦ Physical – unwelcome touching ◦ Other – sexual activity exchanged for positive employment consequences; threats of negative consequences if advances are rejected 38

Sexual Harassment 3 characteristics of SH identified by CHR Tribunal 1.Encounters must be unsolicited, unwelcome, and expressly or implicitly known by the respondent to be unwelcome; 2.The conduct must either continue despite complainant’s protests or, if the conduct stops, the complainant’s protests must have led to negative employment consequences; and 3.The complainant’s cooperation must be due to employment-related threats or promises 39

40 Model sexual harassment policies can be found at CHRC’s website ◦ ccdp.ca/publications/anti_harassment_toc-en.asp Should include the following: policy statement, descriptions of harassing behaviour, procedures for making and investigating complaints, corrective action, and protection from retaliation Sexual Harassment

41 Does intra-office romance put employers at risk? Should/can intra-office romantic relationships be banned? What are the legal concerns with intra- office dating? Are “love contracts” a practical solution? Alternative solutions? Article Discussion

Other Issues of HR and the Law The following will be discussed when these topics are covered later in the semester Employee rights and discipline ◦ Discipline, termination, etc. Organizing unions and collective bargaining ◦ Canada Labour Code Health and Safety ◦ Health and safety laws, worker’s compensation 42

Quiz- True or False??? Levitt, H. (Feb. 8, 2006), Employment law myths: The true story. National Post. 1. Excellent, loyal performers cannot be fired ◦ An employer can terminate anyone, even arbitrarily, as long as it pays appropriate severance 2. Good performers are entitled to more severance ◦ Severance is a function of length of service, position, age, etc. ◦ Though no severance is due if termination is for cause 43

Quiz- True or False??? 3. In a downsizing, employees must be laid off in order of seniority ◦ Seniority has no legal relevance in non-union environment ◦ In union environment, seniority only has an effect if it’s part of the CBA – not always the case 4. If an employee provides a doctor’s note, he is entitled to sick leave ◦ Judges do not always accept doctors’ notes, as many doctors will provide one w/o examination 5. An employee has a right to select his vacation dates ◦ unless policy dictates this, vacation times are up to the employer 44

Questions / Comments ? 45