Legal Requirements in HRM Week 3 ________________________ Dr. Teal McAteer DeGroote School of Busine

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Legal Requirements in HRMWeek 3_________________
_______Dr. Teal McAteerDeGroote School of
BusinessMcMaster University


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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

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Why obey the law (related to employment)?

• Organizations are embedded in society
• Must also serve social interests
• Its 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

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Canadas 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 judges decisions
• Contract Law
• Individual employment contracts, collective
  agreements

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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

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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 strikeare 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

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Human Rights Legislation

• Purpose
• To provide equal employment opportunities (i.e.,
  prevent discrimination) to members of protected
  groups
• Makes it illegal to discriminateeven
  unintentionallyagainst certain groups
• 2 levels of legislation
• Federal
• Provincial

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Human Rights Legislation

• Federal
• Canadian Human Rights Act (1978)
• Employers under federal jurisdiction
• About 10 of labour force
• E.g., federal govt, 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

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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

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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

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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

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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., employees religious commitments require
  wearing a turban job requires a hard hat for
  safety purposes

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Bona Fide Occupational Requirements

• Examples of court cases involving BFORs
• Etobicoke, ON 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 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 employers evidence
  of the safety risk was inadequate

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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

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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 govt 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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Criteria used to assess BFOR

• In this decision, the court established 3
  criteria to assess appropriateness of BFORs
• Is the standard rationally connected to the
  performance of the job?
• Was the standard established in an honest belief
  that it was necessary to accomplish the purpose
  identified in stage 1?
• Is the standard reasonably necessary to
  accomplish its purpose?

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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.

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OMalley v. Simpson-Sears Ltd.

• OMalley was a full-time sales clerk at S-S for
  several years worked 2/3 Saturdays
• Became member of 7th Day Adventist Church which
  observes sabbath from Fri Sat PM
• No longer available to work on Saturdays
• Employer suggested she resign she didnt
• 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

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Adverse Effect Discrimination as defined in
OMalley 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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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 ees sex, race,
  religion, etc.
• Behaviour that creates a hostile work environment

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Harassment

• CHRCs 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 Harassment

• Unsolicited or unwelcome sex- or gender-based
  conduct that has adverse employment consequences
  for target
• 3 characteristics of SH identified by CHR
  Tribunal
• Encounters must be unsolicited, unwelcome, and
  expressly or implicitly known by the respondent
  to be unwelcome
• The conduct must either continue despite
  complainants protests or, if the conduct stops,
  the complainants protests must have led to
  negative employment consequences and
• The complainants cooperation must be due to
  employment-related threats or promises

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Enforcement of Human Rights Legislation

• 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 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)

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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

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Examples from Ontarios 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

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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
• Employment Equity
• Pay Equity

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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 dont

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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 ees to
  accommodate religious obligations
• EE has resulted in concerns with reverse
  discrimination

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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???

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Pay Equity

• 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

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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

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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, workers compensation
  WHMIS

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Questions / Comments ?