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What are the requirements relating to advertising open positions?
Job ads should comply with human rights legislation and should generally contain no statements, qualifications or references that directly or indirectly relate to protected grounds. Under accessibility legislation, employers must state that they will accommodate interested candidates with a disability during the hiring process.
One important difference under Québec law is the potential application of the Charter of the French Language. For instance, an employer cannot make knowledge of the English language a condition for obtaining employment, unless the nature of the job’s duties requires such knowledge. In general, employees who work in retail and interact with customers can be expected to have at least a basic knowledge of English in order to serve customers in either language. Further, written communications with employees, including notices, offers and employment forms, may have to be drafted in French.
What can employers do with regard to background checks and inquiries?
(a) Criminal records and arrests
To avoid a discrimination complaint, all background checks, including criminal record checks, should be performed only after a conditional offer of employment has been extended. There is a standardised process for conducting searches in a federal criminal records database. However, individuals cannot be discriminated against based on convictions for criminal offences which have been pardoned or provincial regulatory offences unless there is a bona fide occupational requirement (e.g. the job involves working with vulnerable persons).
(b) Medical history
In general, medical history should not be considered during the hiring process unless there is a bona fide occupational requirement. Pre-employment medical testing can be requested in some circumstances after a conditional offer of employment has been extended.
(c) Drug screening
Drug and alcohol testing is a contentious issue in Canada because:
- addiction is seen as a disability under human rights law; and
- it has been held that drug testing does not determine whether an employee is impaired while at work
According to the Commission on Human Rights and Youth Rights, drug testing is likely to interfere with the rights to personal inviolability (i.e. safeguarding one’s dignity and respect for one’s private life), which is provided for in Québec legislation. This interference with fundamental rights stems from:
- the intrusive nature of the testing;
- the personal information that may be discovered, recorded and revealed during the analyses; and
- the fact that it is potentially discriminatory
Federally, random drug testing of employees is viewed as discriminatory (even for safety-sensitive positions) because it does not reflect actual or future impairment on the job. An employee could have used a substance days or weeks before the day of testing and there may still be evidence of it at the time of testing. Random alcohol testing for safety-sensitive positions may be acceptable in some cases, but the Supreme Court of Canada recently upheld an arbitrator’s decision striking down random alcohol testing for safety-sensitive positions.
Even testing that measures impairment can be justified only if it is demonstrably connected to the performance of the job – for example, after significant accidents or near misses. This post-incident drug and alcohol testing must generally be part of a larger employee rehabilitation program.
The approach taken by most Canadian adjudicators is that drug and alcohol testing is inherently discriminatory and can be used only in limited circumstances. The primary reason for conducting such testing should be to measure impairment.
(d) Credit checks
For provincially regulated employers, it is best practice to conduct credit checks only where it is reasonable to do so (e.g. where the employee is handling, and responsible for, large sums of money or valuables).
Federally regulated employers are governed by the Personal Information Protection and Electronic Documents Act and are permitted to request credit checks only where it is reasonable to do so.
(e) Immigration status
Employers can require proof of an individual’s legal ability to work in Canada as a condition of his or her employment, but are prohibited under human rights legislation from inquiring as to an individual’s citizenship or national or ethnic origin.
(f) Social media
Social media checks in the pre-hiring stage increase the risk of a discrimination complaint as a candidate’s social media profile may disclose information concerning a prohibited ground under human rights legislation.
Wage and hour
What are the main sources of wage and hour laws in your state?
For federally regulated businesses, Part III of the Canada Labour Code applies. In Québec, The Act Respecting Labour Standards is the main law regulating wages and working hours.
What is the minimum hourly wage?
The majority of employees are entitled to the minimum wage, which is set by the Québec government. As of May 1 2017, the minimum hourly rate is C$12.00.
The minimum hourly rate for employees receiving tips is C$9.20.
No employer can remunerate an employee at a lower rate than that granted to other employees performing the same tasks, in the same establishment, for the sole reason that the employee usually works fewer hours each week, unless the rate of pay for such an employee is more than twice the rate of the minimum wage.
What are the rules applicable to final pay and deductions from wages?
Provincial Rules Wage deductions can be made where authorised by a:
- court order;
- collective agreement;
- decree; or
- mandatory supplemental pension plan
Any other wage deduction can be made only with the employee’s written authorisation.
Federal Rules Employers cannot make deductions from wages or other amounts owed to an employee except under certain permitted instances, including when the deductions:
- are made to cover payments that have been authorised by a federal or provincial act or regulation;
- have been authorised by a court order, collective agreement or other document signed by a trade union on behalf of an employee;
- have been authorised by an employee in writing; or
- are to repay an employer for an overpayment of wages
Hours and overtime
What are the requirements for meal and rest breaks?
Provincial Rules A 30-minute unpaid meal period must be provided after five hours of work, although this can be split into two 15-minute breaks with the employee’s agreement. The employee must be paid for this period if he or she is unable to leave his or her work station.
Federal Rules There are no prescribed rest periods for federally regulated employees. However, most employers follow provincial guidelines for safety and employee relations purposes.
What are the maximum hour rules?
Provincial Rules Québec law provides for no maximum working hours. However, employees can refuse to work:
- more than 50 hours in the same week; and
- more than four hours after their regular daily working hours or more than 14 hours per 24 hours, whichever is the shortest
An employee whose hours are flexible or non-continuous can refuse to work more than 12 hours per 24 hours.
The normal working week is 40 hours, although different rules apply to certain industries (e.g. the fashion industry).
Further, there is no minimum amount of hours that constitutes a working week. However, an employee who reports to work at the express request of his or her employer or in the normal course of his or her employment and who does not work or works fewer than three consecutive hours is entitled to an indemnity equal to three hours of pay at his or her regular wage. Federal Rules Employees of federally regulated employers cannot work more than 48 hours per week. However, there are special rules for certain workers in various industries (e.g. trucking, shipping and railways).
How should overtime be calculated?
Provincial Rules Overtime must be paid for all hours worked in a week in excess of 40, unless a collective agreement, a decree or the Committee on the Standards and Equity of Occupational Health and Safety authorises the staggering of an employee’s working hours other than on a weekly basis, provided that the average is of 40 hours per week.
Overtime is calculated as one-and-a-half times the employee’s regular rate for all hours worked in excess of the hours of their normal work week. Special rules exist for certain industries and if the employer does not have a regular pay rate. Federal Rules For employees of federally regulated employers, overtime is calculated at one-and-a-half times the employee’s regular rate applied to all hours worked in excess of eight per day and 40 per week.
What exemptions are there from overtime?
Provincial Rules The terms ‘exempt’ and ‘non-exempt’ are not used in Canada to differentiate between employees.
Pursuant to the Act Respecting Labour Standards, overtime does not apply to:
- students employed in a vacation camp or social or community non-profit organisation, such as a recreational organisation;
- the managerial personnel of an enterprise;
- employees who work outside the establishment whose working hours cannot be controlled;
- employees assigned to canning, packaging and freezing fruits and vegetables during harvest periods;
- employees of the fishing, fish processing or fish canning industries;
- farm workers; and
- employees whose exclusive duty is to provide care to a child or to a sick, disabled or elderly person in that person’s dwelling, including, where required, performing domestic duties that are directly related to the immediate needs of that person, unless the work serves to procure profit for the employer.
With respect to the managerial personnel of an enterprise, the Act Respecting Labour Standards provides no guidance on when an employee is considered to be managerial personnel. An employee’s title or status is not necessarily relevant.
Québec case law provides general factors that are considered when assessing whether an employee performs managerial work, including his or her:
- decision-making power;
- status or title;
- relationship with senior management;
- functions and responsibilities; and
- employment conditions
Essentially, an adjudicator will look at whether the person in question has decision-making powers and acts as the employer’s representative in its relationship with other employees. The application of the above factors will vary from case to case.
Federal Rules The Canada Labour Code states that the standard hours of work and overtime do not apply to:
- managers or superintendents; or
- employees who exercise management functions or are members of the architectural, dental, engineering, legal or medical professions.
The test for the managerial exemption is, generally speaking, similar under federal law
What payroll and payment records must be maintained?
Provincial Employers must maintain employee records that include:
- the employee’s full name;
- the employee’s residential address and social insurance numbers;
- the employee’s title or position;
- the date on which the employee started working for the employer; and
- the following particulars, as relevant, for each pay period:
- the employee’s total number of working hours per day;
- the employee’s total number of working hours per week;
- the employee’s total number of overtime hours paid or compensated for by a day off with the applicable premium;
- the employee’s number of workdays per week;
- the employee’s wages;
- the nature and amount of premiums, indemnities, allowances and commission paid to the employee;
- the employee’s gross wages;
- the nature and amount of deductions made from the employee’s wages;
- the net wages paid to the employee;
- the work period corresponding to payments;
- the date of payments;
- the reference year;
- the duration of the employee’s annual holiday;
- the departure date of the employee’s annual holiday with pay;
- the date on which the employee was entitled to a general holiday with pay or to another day of holiday, including the compensatory holidays for general holidays with pay;
- the tips reported by the employee;
- the tips attributed to the employee by the employer; and
- in the case of an employee under 18 years of age, his or her date of birth
The records for a given year must be kept for three years.
Federal There may be different record-keeping considerations for federally regulated businesses.
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