Bill 176 Labour Standards Changes
The highlight of the year and, arguably, the decade in Québec employment law was the adoption of the massive Bill 176 reform legislation, aka, An Act to amend the Act respecting labour standards and other legislative provisions mainly to facilitate family-work balance, which officially took effect on Jan. 1, 2019. The centerpiece of the law is the bundle of sweeping labour standards changes summarized in the table below:
Québec Labour Standards Code Changes under Bill 176
|Vacation eligibility||Employees get 3 weeks per year after 3 years of service (as opposed to 5 years of service under current rules)|
|Work hours—employee refusal and staggering||*Employees can refuse to work more than 2 hours after regular daily working hours (as opposed to 4 hours under current rules)
* Employer and employee may agree in writing to stagger work hours on other than weekly basis without CNESST authorization (CNESST OK required under current rules)
*New employee right to refuse work outside normal schedule if not advised at least 5 days in advance
|Statutory holiday pay for non-work day holidays||Employees get pay for stat holidays falling on non-work days of 1/20 of the wages earned during the 4 complete weeks of pay before the week of the holiday, excluding overtime (or 1/60 of wages in 12 weeks for employees paid by commission)|
|Sick leave eligibility||Elimination of requirement that employees have 3 months’ continuous service to take sick leave|
|New domestic violence leave||Up to 26 weeks over a 12-month period for employees victimized by domestic or sexual violence|
|New paid leave||Up to 2 days paid leave per year for employees with 3 months’ continuous service for sickness, organ donation, accident, domestic or sexual violence or reasons related to care, health or education of family members|
|Expanded family and parental leaves||*New employer right to ask employee absent for care, health or education of family members to provide a document attesting to reasons for absence
*Leave to stay with a relative due to serious illness or accident: i. broadened to include not only a relative but also a person for whom employee acts as caregiver; and ii. increased from 12 to 16 weeks over a 12-month period (36 weeks if the relative or person is a minor child)
*New leave of up to 27 weeks to stay with a relative or person for whom employee acts as caregiver due to serious and potentially deadly illness if employee provides a medical certificate
|Expansion of child disappearance leave||Leave for disappearance of minor child increased from 52 to 104 weeks|
|New child death leave||Up to 104 weeks for death of minor child|
|Expansion of suicide death leave||Leave for suicide death of parent, spouse or major child increased from 52 to 104 weeks|
|Extra day of paid bereavement leave||First 2 days of 5 days of bereavement leave paid, as opposed to first one under current rules|
|Paid birth, adoption, miscarriage leave||First 2 days of absence for birth, adoption of a child or termination of pregnancy in or after 20th week of pregnancy are paid regardless of employee’s length of service|
|Expansion of pay equity||Rule requiring equal pay for doing same work at same establishment even when employees work fewer hours per week extended to ban paying less on basis of “employment status,” e.g., part-time, temp, etc.
|New ban on differential benefits||Ban on providing differential benefits on basis of employee’s date of hire, which would apply retroactively and not to benefits arrangements already in place|
Beefed Up Protection from Psychological Harassment
In addition to these economic provisions, Bill 176 broadens employee protections against psychological harassment by:
- Broadening the definition of “psychological harassment” to include sexual harassment;
- Creating a new employer duty to report psychological harassment complaints to CNESST;
- Requiring CNESST to refer those complaints to the CDPDJ (human rights commission) for discrimination inquiry; and
- Extending the time limit for employees to file a complaint from 90 days to 2 years from the last incident of alleged offending behaviour.
Equal Pay for Equal Work
In October 2018, the Supreme Court of Canada found Québec’s pay equity law unconstitutional because it requires correction of male-female pays after they’re discovered rather than after the onset of conditions that led to the gaps. In April, the province adopted Bill 10 to fix the corrections problems and improve the complaints administration process.
Québec Pay Equity Law Changes (Bill 10)
|Topic||Old Rule||New Rule|
|When wage gaps found during 5-year maintenance assessments must be corrected||Corrected going forward||Corrected as of date of event that generated the pay gap, e.g., creation, elimination or changes to jobs or job requirements:
o Amount due for period before date of new posting of maintenance assessment must be paid on that date as a lump sum
o Amount due for period after new posting paid from that date as a salary adjustment
|How employer must display results of maintenance assessments||Employer had to display the list of events that generated pay gaps but didn’t have to specify a date or period for the events||Employer must display:
o Start + end date of each event leading to a pay gap
o Summary of approach used for evaluating maintenance of pay equity
o List of predominantly female job classes that are entitled to adjustments
o Percentage or amount of adjustments to be paid + terms of payment
o Date of posting
o Information on employees’ right to request additional information or make comments within 60 days of the posting date
|How long employer must retain data||Employer had to keep all the information used in the work and all the results of the posting process for 5 years||Employer must keep all the information used in the work and all the results of the posting process for 6 years or, if a complaint is filed, until the complaint is investigated or a final ruling is made|
Other HR Legal Changes in 2019
Here’s a look at the other key new laws and developments that have taken place in Québec in 2019—so far.
Jan. 1: New Protections for Temps and Temporary Foreign Workers
One overlooked part of Bill 176 are the new pay equity provisions for temps, more precisely, bans on paying employees at the same establishment different rates for identical work based solely on employment status. Bill 176 also imposes new regulatory requirements on hiring temporary foreign workers (TFWs), including:
- Mandatory CNESST licensing for placement of TFWs by personnel placement and recruitment agencies;
- A new employer duty to notify CNESST when hiring TFWs; and
- A ban on employers’ charging TFWs recruitment fees or requiring them to entrust the employer with their passport, permit or other personal documents or property.
Jan 1: The QPP Makeover
The start of the year also saw the QPP split into 2 plans: the base plan, which is a continuation of the current plan and the new additional plan offering a higher income replacement rate of 33.3%, paving the way for gradual increases in QPP contribution rates from 2019 to 2023. Maximum pensionable earnings will also increase over 2 years until reaching 114% of the current MPE.
March 5: The Continued Clampdown on Immigration
After cutting its immigration for the year from 50,000 to 40,000, the government tabled Bill 9. Highlights:
- Terminate about 18,000 pending Regular Skilled Worker Program applications, including those holding a temporary work permit
- Create a new “Arrima” portal in which candidates declare their interests and skills and govt. decides whether to invite them to apply based on economic needs
- Require new immigrants to learn the French language and “Québec values.”
April 15: Renewal of Seasonal Employees Pilot Project
Québec extended for another year the pilot project providing a participation allowance to seasonal workers who receive training during the “black hole” period after their EI benefits run out and before the season they work resumes. Under the pilot, seasonal businesses can also get a 100% refund of their eligible training expenses, including employee salaries of up to $20 per hour.
May 31: New TFW Regulations
New regulations implementing the TFW provisions of Bill 176 took effect. Highlights:
- Agencies placing TFWs must get permit costing $890 per year and post $15K guarantee;
- Agency and client companies are jointly and severally liable for Labour Standards Act obligations to TFWs;
- Ban on agency giving TFW lower rate of pay than what employees of client company get for same work in same establishment;
- Ban on charging TFWs or keeping their personal property or documents;
- Client company must report TFW’s start and departure date to CNESST.
Top 3 New HR Cases in Québec
Here are summaries of what we consider to be the 3 most important employment cases decided in Québec over the past 6 months.
1. Québec Court Says New Federal Genetic Testing Law Is Unconstitutional
In December, Québec’s highest court, the Court of Appeal, stirred the pot by saying that it thinks the 2017 federal law making it a crime for employers to require employees or job applicants to undergo genetic testing or disclose their genetic information is unconstitutional and beyond the federal government’s legal authority. While genetic discrimination is problematic, the law bans genetic testing which isn’t a public harm and shouldn’t be regulated by federal criminal law. This is really a matter of health insurance and should be regulated by the provinces, the Court reasoned [Dans l’affaire du: Renvoi relatif à la Loi sur la non-discrimination génétique édictée par les articles 1 à 7 de la Loi visant à interdire et à prévenir la discrimination génétique, 2018 QCCA 2193 (CanLII), Dec. 21, 2018].
2. New Bill 176 Psychological Harassment Deadline Doesn’t Revive Expired Claims
On Jan. 31, 2018, an employee filed a psychological harassment complaint for offending conduct that last took place on Oct. 13, 2016. At that time, the deadline to file psychological harassment complaints was 90 days. But by the time the hearing was held on August 23, Québec had passed Bill 176 extending the deadline to 2 years, effective retroactively. So, the employee contended he still had time to bring his claim. But the Tribunal disagreed, noting that the deadline was 90 days at the time he filed the claim on Jan. 31. Even though the new deadline applies retroactively, it doesn’t revive a claim that had expired before Bill 176 was adopted [Dinu and 9227-3754 Quebec Inc., 2018 QCTAT 4502 (CanLII), Sept. 17, 2018].
3. Employee Must Pay $11K for Trashing Ex-Employer on Website
A software firm claimed that the highly negative review an ex-employee posted anonymously on the RateMyEmployer.ca website violated the non-disparagement clause of her severance release. The employee claimed the clause was unenforceable and violated her freedom of expression. The court sided with the employer. In promising not to say anything negative about the firm and receiving consideration, i.e., something of value for doing so, the employee waived her expression rights. Result: She had to pay the company $10,000 for “moral prejudice” and $1,000 in exemplary damages for violating her agreement [Digital Shape Technologies Inc. c. Walker, 2018 QCCS 4374 (CanLII), Oct. 9, 2018].