Intended to take effect in January 2019, Québec’s National Assembly recently enacted Bill 176, entitled An Act to amend the Act respecting labor standards and other legislative provisions mainly to facilitate family-work balance (Bill). The Bill was approved on June 12, 2018 and is set to affect non-federal employees in Quebec, or about 90 percent of the workforce. These changes will also affect many staffing firms and employers alike, all over the province. Quebec’s changes are following on the heels of similar legislation recently implemented in other provinces, such as in Ontario and Alberta which saw new legislation come into effect in 2018.
What Are the Changes?
Here are the key changes made to the Act respecting labour standards (‘Act’) and which, unless otherwise indicated, came into force on June 12, 2018.
Differences in Treatment
1.Pension and Benefits
Bill 176 prohibits any distinction based solely on hiring date in relation to pension plans or other employment benefits that affects employees performing the same tasks in the same establishment. This signals an important shift for employers. However, any distinctions that existed on June 11, 2018 are not subject to the new prohibition.
2.Equal Pay for Equal Work
Employers are currently prohibited from paying a lower wage rate, providing a reduced annual leave or providing a reduced indemnity for annual leave to any employee who performs the same tasks in the same establishment as other employees, if the difference is based solely fewer hours worked by the affected employee each week. Bill 176 also expressly prohibits such differentials if they are made on the sole basis of “employment status”, although this term is not defined in the legislation. This incremental change takes effect on January 1, 2019.
Although not binding in Quebec, employers seeking guidance on the meaning of “employment status” should look to Ontario’s Employment Standards Act, 2000 (“ESA”).
NB: The ESA defines a “difference in employment status” with respect to one or more employees, as (a) a difference in the number of hours regularly worked by the employees; or (b) a difference in the term of their employment, including a difference in permanent, temporary, seasonal or casual status.
1.Personnel Placement Agencies
Under the Act, clients are now “solitarily” liable for any wage obligations owed to personnel placement agency employees in relation to the Act’s regulations, including wages, holiday pay, overtime pay, etc. Previously, only the true employer was liable for such obligations. This change may have significant cost implications for many employers. A detailed examination of the contractual arrangements with business partners is necessary to assess and protect against potential liability. This proactive step will enable an employer to adjust working relationships and terms of contracts, among other strategies.
Personnel placement agency employees are now entitled to the same wage rate as regular employees of the client where they perform the same tasks in the same establishment. In addition, personnel placement agencies and recruitment agencies for temporary foreign workers are only permitted to operate under a license. Furthermore, Quebec’s employers are prohibited from using the services of such agencies if they are unlicensed. These changes will take effect at a later date depending on the implementation of certain regulations under the Act.
1.Directors’ and Officers’ Liability
Bill 176 institutes a significant change in directors’ and officers’ liability under the Act respecting labor standards. If an employer commits an offense under the Act, its directors and officers will be presumed to have committed the offense, unless the director or officer can establish that he or she exercised due diligence, taking all necessary precautions to prevent the offense. This change took effect on June 12, 2018.
Sexual harassment is now expressly included as a form of psychological harassment. This change reflects the government’s desire to codify the existing state of the law, since adjudicators have for years interpreted psychological harassment as including sexual harassment. In addition, employees will have 2 years, instead of 90 days, from the last incidence of offending behavior to file a psychological harassment complaint. This represents an 8-fold increase in the statute of limitations period. Both changes are in step with the global #MeToo movement.
As of January 1, 2019, Quebec’s employers will be required to adopt a psychological harassment prevention and complaint processing policy. The policy must be made available to employees. Bill 176 also expressly requires that the policy include a section on sexual harassment, delineated in Bill 176 as “behavior that manifests itself in the form of verbal comments, actions or gestures of a sexual nature.”
Incremental changes were made to the work scheduling provision. An employee may now refuse to work more than 2 hours after his or her regular daily working hours, or more than 14 working hours per 24-hour period, whichever period is the shortest. Furthermore, if notice is given fewer than 5 days in advance of any proposed overtime, employees may refuse to work the overtime hours, unless the nature of their job requires it. These changes took effect on January 1, 2019.
Given the breadth of the changes under Bill 176, employers with operation in Quebec should conduct a full-scale review of their policies and procedures, with input from legal counsel as well as online platforms such as Global People Strategist, to ensure compliance. In doing so, employers should be careful not to overlook issues that may arise in connection with agency employees or matters often administered by third parties, including pension and benefits plans, and directors’ and officers’ liability insurance.