Hiring

Advertising

What are the requirements relating to advertising open positions?

Job advertisements by companies in Québec should be posted in the language of the medium used to advertise the position. For instance, if the advertisement is put in an English newspaper, it would be posted in English; if it is in a French newspaper, it would be in French. Further, if the company is advertising the position on its own website for candidates in Québec, the advertisement should be in French (although it can also be in English). The application form for employment must be in French for candidates applying in Québec.   

Background checks

(a)Criminal records and arrests

An employer is entitled to perform a criminal background check on a candidate where the specific job function requires it, or where security and public safety are of concern. The information that is collected must be for purposes that a reasonable person would consider appropriate in the circumstances.

Pursuant to the Charter of Human Rights and Freedoms, employers cannot dismiss, refuse to hire or otherwise penalize a person for the sole reason that they were convicted of a penal or criminal offence, if the offence is in no way connected with the person’s employment or if the person has obtained a pardon.

The mere fact that a candidate is discovered to have a criminal record does not automatically justify the employer in rescinding an employment offer. The employer must always assess whether there is a legitimate connection between the crime and the position the individual is being hired for, by considering the nature of the infraction and the specific functions and responsibilities inherent to the position.

(b)Medical history

It is unusual for employers to request a candidate’s medical history and requesting such information as part of a background check will in most cases be deemed irrelevant and unreasonable. That said, an employer can be justified in requesting that a candidate undergo a medical examination where this is necessary to determine the individual’s ability to perform the essential requirements of the job.

However, an employer may not ask a candidate to undergo a medical examination in order to obtain information which is in no way relevant to the position that the individual will hold. The medical examination may be used only to evaluate the candidate’s ability to meet the requirements (as reasonably determined by the employer) that are associated with the position for which the candidate has applied.

(c)Drug screening

Alcohol and drug tests are prima facie discriminatory. As such, in order to justify such tests, an employer must demonstrate that the testing effectively assesses the candidate’s ability to perform the essential requirements of the job. Such tests are justified only where, given the candidate's potential position, intoxication would clearly put at risk the safety and security of the candidates themselves, other employees and the general public. All alcohol and drug tests must be considered contextually, in relation to time, place and job position.

Finally, note that when drug or alcohol use is considered an addiction or a dependency, the courts have considered this to be a disability pursuant to the Charter of Human Rights and Freedoms, which means that the employer must take means to accommodate the person, and any decision made solely on the basis of such addiction may be deemed discriminatory.

(d)Credit checks

Courts are reluctant to accept that credit checks be performed on candidates except in specific cases where it can be shown that the candidate will be holding a position of financial authority within the organization. Moreover, the credit check should be limited to necessary information and should not extend as far as conducting searches for liens (hypothecs in Québec).

(e)Immigration status

The Charter of Human Rights and Freedoms prohibits discrimination against applicants based on national origin. As such, it is recommended that employers limit such verification and ask only for the candidate to confirm that they are eligible to work in Canada.

(f)Social media

Québec laws do not expressly address whether an employer may use social media to collect information on a candidate and make employment decisions on the basis of the information collected. That said, like all other pre-hiring background checks, employers must ensure that the candidate has consented to the collection of any such information and the collection should be limited to what is necessary and reasonable.

(g)Other

Employers cannot ask candidates to disclose their age, birth date or social insurance number during the pre-employment period. Once the candidate accepts an offer of employment, this information can be requested and communicated, as long as it is validly required.

Similarly, employers are not permitted to ask for a candidate’s driver's license or driving records, unless the job the candidate is being hired for is intimately tied to the need for such license or information.

Wage and hour

Pay

What are the main sources of wage and hour laws in your state?

The main sources on wages and work hours are:

  • the Labor Standards Act; and
  • the Pay Equity Act.

The Labor Standards Act sets forth the minimum hourly wage and various statutory requirements with respect to payment of wages. The Pay Equity Act imposes ongoing obligations on employers to measure and correct pay inequities in predominantly female jobs.

What is the minimum hourly wage?

The current minimum wage in Québec is C$12.50 per hour, a figure that is subject to change annually.

Different rates may apply to employees in specific industries, such as those who receive tips or who are given room and board as part of their terms of employment.

What are the rules applicable to final pay and deductions from wages?

On cessation of employment, employers must pay the employee’s final pay with all accrued and earned salary, vacation pay and the statutory payment in lieu of notice, if applicable.

As is the case for each pay, the employer must remit to the employee a pay sheet allowing them to calculate their wages and deductions. The pay sheet must contain all the relevant particulars, such as (among others):

  • the period of work corresponding to the payment;
  • the number of hours paid at the regular rate;
  • the number of overtime hours paid or replaced with leave, with the applicable rate;
  • the nature and amount of the premiums, bonuses, indemnities, allowances or commissions paid; and
  • the nature and amount of the deductions made.

The employer has the right to make deductions from wages with respect to amounts owed by an employee to third parties only if it is required to do so by law, a court order, a collective agreement or a mandatory supplemental pension plan. Any other deduction from wages may be made only with the employee’s written authorization.

Hours and overtime

What are the requirements for meal and rest breaks?

Pursuant to the Labor Standards Act, after five consecutive hours of work, the employee is entitled to a 30-minute period, without pay, for their meal.

Meal breaks must be paid if the employee is not authorized to leave their work station.

What are the maximum hour rules?

Pursuant to the Labor Standards Act, an employee may refuse to work if, on a given day:

  • they are asked to work more than two hours beyond their regular hours or more than 14 hours per 24-hour period, whichever period is shorter; or
  • for an employee whose daily working hours are flexible or non-continuous, they are asked to work more than 12 hours per 24-hour period.

An employee may also refuse to work if, in a given week, they are asked to work more than 50 hours, except where their working hours are staggered.

An employee cannot refuse to work:

  • if the exercise of this right jeopardizes the life, health or safety of workers or the population;
  • in the case of a risk of destruction of or serious damage to property and buildings, or in a case of force majeure; or
  • if this refusal violates any professional code of ethics applicable to the employee.

How should overtime be calculated?

For purposes of computing overtime, the Labor Standards Act provides that the regular work week is 40 hours. The act provides certain particular situations in which an employee is deemed to be at work:

  • while they are available to the employer at the place of employment and required to wait for work to be assigned;
  • during a break period granted by the employer, excluding meal time breaks (eg, a coffee break shall be included);
  • while travelling under the requirement of the employer; and
  • during any trial period or training required by the employer.

All time spent by an employee in any of these situations will be included in the calculation of the regular 40-hour work week.

Overtime is any work performed in addition to the regular work week and entails a premium of 50% over and above the prevailing hourly wage paid to the employee. 

Alternatively, if requested by the employee, the employer may replace the payment of overtime by paid leave equivalent to the overtime worked, plus 50%. However, such leave must be taken during the 12 months following the date on which the overtime was performed, at a date agreed between the parties, failing which the overtime must be paid.

What exemptions are there from overtime?

Managerial personnel (including middle and lower management) and employees who work outside the employer’s establishment and whose hours of work cannot be controlled are exempted from the overtime requirements.

An employee will generally be considered a manager if they have decision-making powers, act as an employer’s representative in dealing with other employees and have supervisory functions.

For the employee to have non-controllable hours while working outside an establishment, it must be impossible for the employer to control the employee’s hours.

The entitlement to overtime pay for an employee who is compensated through a fixed annual, monthly or bi-weekly salary (rather than paid on an hourly basis) will vary depending on whether the number of hours was predetermined.

Record keeping

What payroll and payment records must be maintained?

Pursuant to the Regulation Respecting a Registration System or the Keeping of a Register, an employer is required to establish a registration system or keep a register for a period of three years, in which is shown for each employee (except senior managerial personnel) specific payroll information for each pay period, including particulars such as (among others):

  • the period of work corresponding to the payment;
  • the number of hours paid at the regular rate;
  • the number of overtime hours paid or replaced with leave, with the applicable rate;
  • the nature and amount of the premiums, bonuses, indemnities, allowances or commissions paid; and
  • the nature and amount of the deductions made.

In addition, an employer who must withhold or deduct Canada Pension Plan contributions, Québec Pension Plan contributions, employment insurance premiums and income tax from remuneration or other amounts paid must keep records relating to such payroll deductions and contributions. Pursuant to applicable laws, the records must be retained for six years commencing at the end of the year to which the records relate, even if the employee is no longer working for the employer.