LEGAL ISSUES IN HRM LEGAL ISSUES IN HRM

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AnnouncementsAnnouncementsELM updateAssignment

◦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

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Lecture AgendaLecture AgendaOverview of Canadian legal

context

Charter of Rights and Freedoms

Human Rights Legislation

Employment Standards Legislation

Equity Legislation◦Employment Equity◦Pay Equity

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Legal Issues in HRMLegal Issues in HRMMust 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

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Why obey the law (related to Why obey the law (related to employment)?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 Canada’s Legal Environment re: Employmentre: 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

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Charter of Rights and Charter of Rights and FreedomsFreedomsPart of the Constitution Act, 1982Provides 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.

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Charter of Rights and Charter of Rights and FreedomsFreedomsSection 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.”

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Charter of Rights and Charter of Rights and FreedomsFreedomsSubsection (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

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Charter of Rights and Charter of Rights and FreedomsFreedomsHRM 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

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Human Rights LegislationHuman Rights LegislationPurpose

◦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

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Human Rights LegislationHuman 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

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Prohibited Grounds of Prohibited Grounds of DiscriminationDiscrimination

Canadian HumanCanadian HumanRights ActRights Act

PardonedPardonedconvictsconvicts

National orNational orethnic originethnic origin

DisabilityDisability

Marital andMarital andfamily statusfamily status

ReligionReligion

AgeAge

Sex, sexualSex, sexualorientationorientation

Race andRace andcolourcolour

•Slight variations between federal and provincial legislation

DiscriminationDiscriminationNot 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

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DiscriminationDiscriminationIndirect (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

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Bona Fide Occupational Bona Fide Occupational RequirementsRequirementsText refers to them as BFO

QualificationsWhat 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

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Bona Fide Occupational Bona Fide Occupational RequirementsRequirements

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

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Bona Fide Occupational Bona Fide Occupational RequirementsRequirements

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

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Supreme Court Case re: Supreme Court Case re: BC Fire FighterBC Fire Fighter

Woman employed in elite firefighting unit by province of BC for more than 2 years

New fitness tests were introduced for unitShe failed one of new tests (run 2.5 km in

11 minutes) and was firedUnion grieved – got appealed to Supreme

CourtCourt 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

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Bona Fide Occupational Bona Fide Occupational RequirementsRequirementsWhen 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

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Criteria used to assess Criteria used to assess BFORBFOR 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)

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Duty to AccommodateDuty to AccommodateRequirement 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.

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O’Malley v. Simpson-Sears O’Malley v. Simpson-Sears Ltd.Ltd.O’Malley was a full-time sales clerk at S-S for

several years; worked 2/3 SaturdaysBecame member of 7th Day Adventist Church

which observes sabbath from Fri – Sat PMNo longer available to work on SaturdaysEmployer suggested she resign; she didn’tEmployer cut her hoursLower courts sided with employer, saying

this was not intentional discriminationSupreme Court ruled it was adverse effect

discrimination (not intentional) Inadequate reason for not accommodating

employee

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Adverse Effect Discrimination as defined Adverse Effect Discrimination as defined in O’Malley v. Simpson-Sears Ltd.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”

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Enforcement of Human Rights Enforcement of Human Rights LegislationLegislation

Complaint to Human Rights Commission↓

Complaint notification↓

Reasonable cause?↓

Investigation↓

Attempted resolution / Mediation↓

Decision / remedy specified↓

Acceptance or appeal

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Remedies for Human Rights Remedies for Human Rights ViolationsViolationsMay 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 Video: Workplace Discrimination-Discrimination-

12 Danger Zones 12 Danger Zoneshttp://www.youtube.com/watch?

v=alEH4NyTvWc&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?

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Employment Standards Employment Standards LegislationLegislationProvincial 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

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Examples from Ontario’s Examples from Ontario’s ESAESAMinimum 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:

www.labour.gov.on.ca/english/es/guide/index.html

Pregnancy / Parental leave◦ Birth mothers: 17 weeks pregnancy leave &

35 weeks parental leave◦ Other parents: 37 weeks parental leave

Equity LegislationEquity 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 Equity2. Pay Equity

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Employment Equity ActEmployment Equity ActLegislation 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 policies31

Employment EquityEmployment EquityRequirements 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

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Employment Equity and Employment Equity and HRHRExamples:

◦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???

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Pay EquityPay EquityPay 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

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Pay EquityPay 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

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HarassmentHarassment 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

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HarassmentHarassment

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.

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Sexual HarassmentSexual 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

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Sexual HarassmentSexual 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

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Model sexual harassment policies can be found at CHRC’s website

◦ http://www.chrc-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 HarassmentSexual Harassment

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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 DiscussionArticle Discussion

Other Issues of HR and Other Issues of HR and the Lawthe LawThe 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

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Quiz- True or False???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

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Quiz- True or False???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

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Questions / Comments ?Questions / Comments ?

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