The recent “Pastagate” story has brought Quebec’s language laws to international attention. In that matter, a Montreal Italian restaurant was investigated due to a complaint alleging the prominence of Italian words including “pasta” on its menu. In light of these events, it is timely to review Bill 14 entitled “An Act to amend the Charter of the French language, the Charter of the human rights and freedoms and other legislative provisions” (“Bill 14”) which, if adopted, will have far greater effects on common business practice in Quebec.
Bill 14 was introduced by the Quebec’s Parti Quebecois on December 5, 2012 in the provincial legislature, arriving in the wake of recent debates of the Quebec government with respect to preservation of the French language, including in relation to the use of French on public signs. Among other amendments, Bill 14 proposes to amend the Charter of the French Language (Quebec) (the “Charter”) by reinforcing certain rights of workers and consumers to work, be served and informed in French. It also affirms that the French language constitutes the foundation of Québec’s identity.
If Bill 14 becomes law, it will affect businesses in at least three significant ways: first, through creating new Francization obligations applicable to previously exempt businesses; second, by expanding employers’ obligations to use French in the workplace; and third, by expanding businesses’ obligations regarding consumers’ right to be informed and served in French. Each of these will be discussed in turn.
- New Francization Obligations for Employers with 26-49 Employees
Currently, employers with more than 50 Quebec-based employees are subject to “Francization requirements.” Specifically, the employer must register, obtain, and maintain a certificate from the Office de la langue française (“OQLF”) demonstrating that the use of French is generalized at all levels of the enterprise.
Bill 14 proposes to extend certain Francization requirements to employers with 26 to 49 Quebec-based employees. For determination of inclusion in this category, an employer is deemed to have 26 to 49 employees if 26 or more Quebec-based employees are maintained for more than 6 months over 2 consecutive years.
This compliance model is based on self-assessment. Namely, employers must adopt measures with the objective of making French the “normal and everyday language of work”. The success of these measures must then be self-assessed.
The considerations and consequences of these changes are numerous. For example, an employer must determine “the list of positions that require knowledge of a language other than French, specif[y] the date of the evaluation and the level of knowledge required for each; the transfer and promotion policy; [and] the use of French in meetings and internal communications.”
Moreover, Bill 14 states that the government may determine a Francization timeframe for enterprises that are subject to its obligations. Bill 14 also allows the OQLF to supervise the Francization process.
- The Worker’s Right to Work in French
Bill 14 outlines an employers’ obligations stemming from the workers’ right to work in French. Section 19 of Bill 14 provides that employers must use French in all written communications to staff and employees, employment agreements must be available in French (unless otherwise agreed upon by the parties), and all internal policies or other internal documentation and notices must be available in French. To a certain extent, these amendments represent a codification of commonly adopted interpretations of Section 41 of the Charter.
Currently, the Charter prohibits employers from requiring English fluency (unless the task requires it). Bill 14 maintains this feature, but further requires employers to evaluate and demonstrate strong reasons to necessitate fluency in languages other than French. In considering these reasons, the employer must assess whether other staff members have the linguistic ability required to satisfy the needs of the enterprise.
Moreover, pursuant to new provisions in Bill 14, employers cannot dismiss, lay off, transfer, take reprisals or impose any other sanctions on an employee because such employee does not speak or have knowledge of a language other than French, or because the person has asserted a right arising from the provisions of the Charter.
- Customer’s Right to Service in French
Under Bill 14, any enterprise selling goods or services must take reasonable steps to ensure that a customer’s right to be served and informed in French is respected. This provision essentially restates one of the core principles and objectives of the Charter, set out at Section 5. However, whereas Section 5 is a mere statement of principle, the newly proposed Section 50.8 would be a source of specific legal rights and obligations. Courts have held that certain provisions of the Charter apply to website operators. Accordingly, if adopted, it is possible that the range of website content that must be provided in to French by website operators that have a place of business in Quebec would increase.
Bill 14 has not yet been adopted. In March 2013, interest groups were asked to present concerns and voice opinions regarding Bill 14 during a general consultation and public hearing. Such presentations are expected to conclude in April. It is difficult to predict the outcome of such debates. Many members of the business community have been quite critical of the proposed amendments. Given the minority status of the current Quebec provincial government, the proposed amendments may not survive in their current form.
Nevertheless, if adopted Bill 14 would have a significant impact on business owners, including those practicing e-commerce. Examples include:
- Certain previously exempt businesses will be required to meet Francization obligations and obtain approval from the OQLF.
- Bill 14 imposes a new obligation for businesses to take reasonable steps to respect consumers’ right to be informed and served in French. This consideration extends to web based content.
- New obligations will be imposed with respect to a worker’s right to work in French.
As has been demonstrated in the “Pastagate” story discussed above, these changes could have real and meaningful consequences for businesses and business owners.