Chapter 2: Legal Framework

Transcription

1 Chapter 2: Legal Framework Legal Framework for Employment Law in Canada Constitutional Law Legislated Acts of Parliament Regulations Common Law Contract Law Multiple Jurisdictions for Employment/Labor Law HR department should have knowledge on all the laws in each of the provinces Provincial/Territorial Employment laws govern 90% of Canadian workers Laws that are different from province to province o Benefits o Minimum wage, paid holidays, vacation Current in Ontario: 10.75; Serving Liquor: $8.90 o Overtime rules o Taxes o Human Rights o Maternity, parenting and adoption leaves o Bereavement and compassionate care leave o Termination notice and overtime pay Legislation Protecting Human Rights Charter of Rights and Freedoms guarantees fundamental freedoms to all Canadians Section 15: right to equal protection and equal benefit of the law without discrimination Discrimination Distinction, exclusion or preference based on a prohibited ground which nullifies or impairs a person s rights to full and equal recognition and exercise of human rights and freedoms November 2010: Indian and Sikh both spoke Punjabi in front of co-workers and Manager said the language made everyone felt uncomfortable and even though these two were great employees, they were both laid off. They filed a discrimination case based on race, ethnicity, ancestor origin, and creed. Company said they were laid off due to economic issues and because they lack teamwork and transferable skills. None of these were documented and they did not get a chance to prove themselves. Human Rights Tribunal said it could be an indicator for discrimination based on race, ethnicity, place of origin. Employer s comments based on race and ethnicity. Each were awarded $3, for loss of dignity. One found work elsewhere and one was awarded $18,000 for loss wages. What are prohibitive grounds?

2 o Where you cannot discriminate such as: age, gender, religion, race, disabilities, orientation, language, source of income, political belief etc. Types of Discrimination Prohibited Intentional: o Direct tell you directly; sign that says you are not allowed to go on a ride due to height o Differential/unequal one is treated differently than another o Indirectly through innuendos o Based on association member of a group Unintentional (constructive/systemic policies that are not supposed to be there but is.) o Ex: Airline services height and weight was a requirement for a job so it was discriminatory but it was built into policies which had to be rewritten. The laws have just not been looked into o Word of mouth hiring policies, job evaluation systems that are not gender-neutral, limited accessibility to company premises Requirement for Reasonable Accommodation Adjustment of employment policies/practices so that no individual is o Denied benefits o Disadvantaged in employment o Prevented from carrying out a job It has to be based on prohibited grounds in human rights legislation. Only times when you can not comply is if there is undue hardship or safety hazard. Example: workplace re-design or need for wheelchair has to be accommodated for. Starbucks Scenario Is it possible to hire and accommodate an applicant with a hearing disability for this job? Imagine you are the manager of Starbucks and are looking to hire someone to be on front line customer service which requires employees to take down customer orders and convey them to other baristas Employers are afraid to go the extra mile to see what accomodations they can make Undue Hardship Human Rights legislation mandates that employers must accommodate to point of undue hardship : the point where financial cost or health and safety make accommodation impossible. UWaterloo Policy UW has policy 33 Ethical Behavior on general principles, specific principles on human rights, violations, advice and support Permissible Discrimination

3 Bona Fide Occupational Requirement Justifiable reason for discrimination Must be based on business necessity for safe and efficient operations Intrinsically required by job tasks. Ex: if a truck driver cannot see and has to drive the truck, it is a necessity in the job description and hence he cannot drive RECAP Discrimination based on prohibitive grounds, distinct Two types of discrimination intentional and unintentional Reasonable accommodation do anything to accommodate employee on the level of undue hardship (financial) or safety risk BFOR Bonafide Occupational Requirement or Qualification Harassment Unwelcome behavior that demeans, humiliates, or embarrasses a person and that a reasonable person should have known would be unwelcome Examples: public humiliation, racial slurs, sexual harassment, bullying (harassment and Occupational Health and Safety Code), sarcasm (makes a person feeling embarrassed), threat, vandalism, practical jokes, leering (suggestive staring), unwelcome physical contact Sexual Harassment Offensive humiliating behavior related to a person s sex, behavior of sexual nature that creates an intimidating, unwelcome, hostile or offensive work environment Sexual Coercion harassment of a sexual nature that results in direct consequence to the worker s employment status or some gain in or loss of tangible job benefits threat to job status (Gain or loss) Sexual annoyance sexually related conduct that is hostile, intimidating or offensive to employee but no direct link to tangible job benefits or loss thereof example: asking someone out multiple times when they say no Harassment is in the mind of the person who is a receiver of the threat. If a male coworkers tells a female coworker they smell great in multiple ways and female feels creeped out sexual annoyance It can be very devastating to the workplace and psychological effect to many Harassment Policies To reduce liability, employers should o Establish sound harassment policies o Communicate such policies to all employees o Enforce policies in a fair and consistent manner Clear workplace anti-harassment policy statement Information for victims Employees rights and responsibilities Clear workplace anti-harassment policy procedures Guidelines for appeals

4 RECAP: How the policy will be monitored and adjusted Harassment behaviors that a person knows or ought to know are unacceptable Two types of sexual harassment sexual coercion and sexual annoyance What should be included in a harassment policy information of the victim, rights and responsibilities of employees, guidelines Employment Equity 1983 set up to provide efficient and equitable method of promotion for designated groups Federal Act based on Charter of Rights, proclaimed in 1987 and amended in Dealt with programs for 100 or more employees to develop annual plans or goals and had to address the needs for Women, People with Disabilities, Aboriginals and Visible Minorities o These groups were not being as employed as they possibly could. o Separate laws in separate areas for each of these groups Persons with disabilities o 2010 assist persons with disabilities in our different areas: accessible customer service, accessible buildings (taken out), accessible transportation, accessible employment, accessible information and technology o Ex: professor s delivering lectures should be able to provide the lecture in different formats if students need it in a different way to have equal access Visible Minorities and Aboriginals o Not always are their qualifications deemed the same as Canadians. o Accommodated to be able to get equal jobs New Accommodation Family Status October 2012 HR Reporter Linden worked as an architect in a holding company where he started working in His mother got sick with osteoporosis and he put in 1400 hours in overtime without compensation. Senior partner felt that overtime claims were overestimated and Linen had to take many absences due to mother s sickness. Only time that counts is time working in the office with the team. Absences were demoralizing to rest of the team. January 2009 after many warnings, Linden was terminated and provided 34 week salary and benefits for 8 weeks. Claimed discrimination based on family status as firm did not allow him to care for flexible work hours. Tribunal said that applicant s family care requirements was a significant factor but given his responsibility to the mother. Family status as a case for discrimination Visible Disability accommodations Kay Leslie has 2% vision and her job is disability accommodation

5 Perception: blind person is more vulnerable or fragile but now, there are many low and high tech ways to help a person with visual disability Low tech: adjust lighting, use large print, use braille labels or tactile dots, magnification devices High tech: synthetic speech output to translate text to speech JAWS; screen magnification programs, portable electronic devices; closed circuit TV to enlarge documents Employers are afraid and don t know how to accommodate and hence do not do anything Plight of the four designated groups Lower pay Occupational segregation based on a particular gender Glass ceiling visible barriers put in place, biases, attitudes that limit how far people can go Underutilization do not use the person s knowledge to the fullest capacity because they may not have as in-depth skills. (no one tests to see if it s true, just based on disability) Higher rates of unemployment Low status jobs with little career growth potential Employment Equity Program Implementation Steps Step 1: Senior Management Commitment and Support o They have to buy in to the idea of employment equity for 100 or more employees, there must be a plan o Federal contractor get money from Federal government Step 2: Data collection and analysis o Stock data snapshot of how many employees fall into each category o Flow data what happens every time you hire someone, it changes the stock of the data. Employment equity questionnaires (Anonymous) are completed to collect the data the individual being interviewed must self-identify as having a disability. Cannot make assumptions on what you see visually Step 3: Employment Systems Review o Eliminate opportunity for systemic discrimination Step 4: Plan Development o How to attract people from the four groups or have we taken out policies that are of systemic discrimination Step 5: Implementation o Measure attitude, how much hiring, flexible schedules Step 6: Monitoring, Evaluation and Revising o Continually go back and monitor to make sure it is up to date legislative wise and plans are actually working Diversity Management

6 How to manage our diverse population US: melting pot; Canada: cultural mosaic American ideology: blending everyone to become more American. Canada: keep the richness of your values and traditions. Respect the cultural differences Broader and more inclusive than employment equity not legislative Set of activities that integrates all employees in multicultural workplace and use diversity to enhance effectiveness Waterloo Inclusivity Waterloo employees follow the principles of inclusivity Acknowledge individuals have unique and particular needs in the learning and work environment. Respect each individual s right to express and present themselves relative to their religion, culture, ethnic background, sexual orientation, gender-identity, physical and mental ability. Promote inclusivity by reasonably adjusting procedures, activities and physical environments. Focus on the capability of the individual without assumptions or labels Be inclusive in all forms of communication. Serve all with sensitivity, respect, and fairness. Seven workshops for staff o Cultural inclusivity o Accessible communities o Sexual orientation o Multi-generational workplace o Inclusive communication o Diversity o Understanding inclusivity People are not intentionally exclusive but do not always know how to be inclusive or how what they do may exclude other people. Creating an Inclusive Environment Post jobs on Aboriginal sites, women centers, multicultural sites Initiatives and talent management Diversity training groups Support groups Critical relationship networks Open dialogues Management responsibility and accountability Integration of diversity Top management commitment Ethical Dilemma Your company president tells you not to hire any gay or lesbian employees to work as part of his office staff because it would make him feel uncomfortable o Not legally able to ask someone s sexual orientation in an interview

7 o How to make the president feel more comfortable o Ask the boss how he wishes to navigate around that and what process to do that? Let the president know of the legislation, value of diversity, and ensure that the best job match will be found