Osler lawyers examine the latest challenges in employment and labour law
Employers are navigating a host of challenges in the post-COVID world, ranging from workforce re-organizations and commuting issues, to pay transparency legislations.
Attendees at Osler’s Employment and Labour Law Insights webinar last week heard that British Columbia’s new Pay Transparency Act – which passed on May 11, 2023 – is the biggest development in a transparency statute in Canada in a very long time.
“It is expected that BC’s requirements with regard to pay range publication, and workplace discipline regarding pay discussions will change the way employers advertise positions across Canada to comply with the new legislation, and change the nature of workplace conversations regarding wage,” said Abigail Omale, associate, employment and labour at Osler.
The act is intended to address not only the gender pay gap, but pay gaps for Indigenous and racialized individuals as well. Under the new legislation, employers must no longer seek pay history information from an applicant or ask job applicants about their previous salary.
In addition, employers in BC cannot dismiss, suspend, demote, discipline or harass an employee who asks their employer about their pay or reveals their pay to another employee or someone applying to work with their employer.
Starting on November 1, 2023, all employers in BC must include the expected pay or the expected pay range for a specific job opportunity that they advertise publicly, under the new legislation.
In addition, employers will be required to collect gender information from their employees in order to complete the Pay Transparency Report. However, employees can decline to give their gender information to their employer.
“As a best practice, employers might want to collect yearly consent for the disclosure of gender and sex and pay information,” said Omale. “To the extent possible they should anonymize and aggregate data so that employees can not be identified. They should also inform all employees that disclosure is voluntary.”
Omale noted that employers should be prepared to do market research to establish pay ranges, and that these ranges should be determined before a job is posted.
Osler’s webinar also covered the topic of workforce reorganizations, following a recent cycle in some industries of fast hiring, mass layoffs, mass terminations, followed by further hiring.
“Employers are increasingly trying to shift employees’ duties around or responsibilities around or change their policies in order to adjust to these downsized or upsized workforces, or to adapt to changing business needs,” said Kelly O’Ferrall, partner, employment & labour at Osler. “Similarly, we're seeing a lot of role realignment within workplaces. A lot of companies that have spent time getting the right people on board are now trying to figure out how to put their skill sets to the best use and how to get the right people into the right roles.”
O’Ferrall added that many employers are also cleaning up their employment documentation, and trying to get consistent and enforceable employment agreements – particularly in light of a recent uptick in wrongful dismissal claims over the past couple of years, following Waksdale v. Swegon North America Inc.
When it comes to changing an employee’s terms and conditions of employment, O’Ferrall recommends trying to get the employee on board wherever possible.
“Obviously, this is not always an option. When, you're cutting pay or demoting employees, it's very hard to get them on board with that, but selling the change to the employee is by far the most important thing you can do,” she said.
However, O’Ferrall adds that employers should be sure to avoid misrepresenting the situation or making promises to employees that cannot be kept about future opportunities, for example. Act in good faith and ensure everything is clearly documented, she advised.
Osler partner Svan Poysa spoke at the webinar about commuting issues, which include arguments and claims that employees make in regard to their commute to work.
“This is something I’ve heard more about in the past six months than in the two decades prior,” said Poysa.
With the onset of the pandemic, unprecedented levels of remote work arrangements were introduced, leading to many changes to the workforce as employees became accustomed to the flexibility of working remotely, and some chose to move further away to cheaper locations. As many employers are now encouraging or mandating return-to-office policies, they are facing pushback from some employees.
“Unless there's a contractual right, which often takes the form of an express representation that the employee is entitled to be fully remote, employers have the ability to require employees to return to the office,” said Poysa. If an employee has chosen to move far away from the office and faces a long commute, that is generally not time that needs to be compensated by the employer, although there are some exceptions, he added. For example, if an employee is required to pick up other employees on the way to work, the employer could face claims.
If an employee refuses to return to the office, there are various legal bases upon which to end the employment relationship while mitigating the risk of a wrongful dismissal claim. Requests for accommodation due to family obligations or an alleged disability need to be examined individually.
“Employers do have arrows in their quiver when dealing with these challenging situations,” said Poysa.
Avoiding differential treatment of employees is also important to avoid legal claims as well as reputational and employee relation concerns, he added.
“Change management is always difficult, but getting employee buy-in definitely helps mitigate the risk of claims and helps promote a productive and happy workforce,” said Poysa. “Having a properly drafted return-to-office policy that articulates the rationale is important.”