1 Legal Requirements in HRM 2BC3 Week 2 ________________________ Dr. Teal McAteer DeGroote School of Business McMaster University

2 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

3 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

4 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

5 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. Section 15: freedom from discrimination

6 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

7 Human Rights Legislation Purpose –To provide equal employment opportunities (i.e., prevent discrimination) to members of protected groups –Makes it illegal to discriminate—even unintentionally—against certain groups 2 levels of legislation –Federal –Provincial

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

9 Prohibited Grounds of Discrimination CHRA prohibits discrimination based on: –Race or colour –Ethnic or national origin –Creed or religion –Sex (including pregnancy and childbirth) –Marital status –Age –Disability –Harassment –Past conviction (for which a pardon has been granted) Slight variations between federal and provincial legislation/jurisdictions

10 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

11 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

12 Bona Fide Occupational Requirements Text refers to them as BFO Qualifications What is a BFOR / BFOQ? –A job requirement that legally overrides a human rights protection –Allowed when abilities needed to carry out the essential job requirements are related to a prohibited ground –E.g., employee’s religious commitments require wearing a turban; job requires a hard hat for safety purposes

13 Bona Fide Occupational Requirements Examples of court cases involving BFORs Etobicoke, ON – mandatory retirement for firefighters after age 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

14 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

15 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

16 Supreme Court Case re: BC Firefighter 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

17 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 belief that it was necessary to accomplish the purpose identified in stage 1? 3.Is the standard reasonably necessary to accomplish its purpose?

18 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.

19 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

20 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”

21 Harassment Harassment based on any of the prohibited grounds –No clear definition –Occurs when a member of an org treats an employee in a disparate manner because of ee’s sex, race, religion, etc. –Behaviour that creates a hostile work environment

22 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.

23 Sexual Harassment Unsolicited or unwelcome sex- or gender-based conduct that has adverse employment consequences for target 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

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

25 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)

26 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

27 Examples from Ontario’s ESA Minimum wage rates –$8 as of Feb 1, 2007 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) –May be modified if exceptional circumstances (e.g., emergency) Pregnancy / Parental leave –Birth mothers: 17 weeks pregnancy leave & 35 weeks parental leave –Other parents: 37 weeks parental leave

28 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

29 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 Some provinces have EE legislation; some don’t

30 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 ee’s to accommodate religious obligations EE has resulted in concerns with reverse discrimination

31 Employment Equity and HR Virtually every HR function is affected by employment equity: –HR planning should incorporate equity goals –Job descriptions should not include requirements which exclude certain individuals –Selection must use non-discriminatory screening practices –Training & Development opportunities must be available for all groups –Performance appraisal must be free from bias –Compensation must be based on skills, performance What is a tool which would help an organization ensure these requirements are met???

32 Pay Equity –Women earn on average 80 cents for every $1 earned by men –Many reasons for this gap: differences in work experience, education, occupation etc. –Pay equity has a much narrower focus on reducing the difference in pay earned by men and women

33 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 have legislation covering the public and private sector, while other provinces only apply to the public sector

34 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; WHMIS

35 Questions / Comments ?