'The law is to ensure that employees can carry out their work and can be supervised in French'
Under a recently passed bill, some employers may find themselves on the wrong side of the government in Quebec when it comes to how they communicate with French employees.
Bill C-13 received royal assent on June 20.
“The Quebec government takes the position that they can subject federally regulated employers to this obligation regardless — so an employer who decides not to subject themselves to the Quebec charter, and who decides not to register with the Quebec regulator as a result could be on the receiving end of a compliance order from the Quebec government, and if they wanted to defend that position, they would have to make a constitutional argument,” says Alexandre Fallon, a partner at Osler in Montreal.
The new law states that federal employers or those who have staff located in Quebec (or in a region with significant French population) must commit to a process known as Francization by offering French language communication, computer systems and supervision to those employees who request it.
Employers must make a choice to follow provincial laws on language or the federal bill, which is written much the same as the provincial regime.
“They’re certainly going to have to make sure that they generalize French in the workplace because the spirit of the law is essentially to ensure that employees can carry out their work and can be supervised in French. That’s a major obligation,” says William Hlibchuk, a partner at Norton Rose Fulbright Canada in Montreal.
Quebec organizations have been busy complying with the requirements of Bill 96, which applies to all types of business communications.
‘Costly and disruptive’ task of translation
For those organizations that have to translate documents and computer data into French, the job might become overly burdensome says Fallon.
“The communication-with-employees’ piece is probably the most onerous in the sense that you can have a relatively small Quebec headcount and, all of a sudden, now you have to translate all of your corporate communications, so that can be very costly and disruptive.”
“I’m communicating with 10,000 employees worldwide in an email from the CEO and because I’ve got 10 employees in Quebec, now I have to do it in French because of a relatively small number of Quebec employees,” he says.
This task should be easy for large companies but “for smaller employers who don’t necessarily have robust translation capabilities or budgets, it might be more of a burden,” says Hlibchuk.
This new requirement is just the latest way federal governments have tried to appease Quebec, he says.
“Opposition parties, like the NDP for instance, definitely the Bloc Québécois, they’ve been knocking at the door for quite a while on this particular issue and up until this came out, the advice that we would always be giving employers in the federal jurisdiction was that, basically, everything that’s happening from a Quebec perspective in terms of the charter of the French language, the Office de la langue française — which is what they will colloquially call the language police here in Quebec — didn’t have jurisdiction.”
“This was obviously an answer from the current government to address those long-standing demands, and to certain extent grievances, from those constituencies that considered it to be inappropriate that there’d be a double standard between the jurisdictions within the province,” says Hlibchuk.
Federal employers also have to contend with new rules around expenses and other employee information with new regulations.
What is a ‘French region’?
When it comes to regions that are predominantly French, the legislation isn’t clear on a definition, which could cause some employers a level of frustration, according to Fallon.
“Who knows? It will be defined through regulations. What that means is at some point that will come into force two years after the government has decided what that means.”
Places such as the National Capital Region, as well as New Brunswick and certain cities such as Winnipeg or Edmonton, might become subject to the law but it’s not yet clear, he says.
“For an employer that has management that’s in Toronto and that supervision of the employees comes from Toronto, when they’re sending emails to employees, when they’re giving instructions and all that sort of thing, how’s that going to work? For an employer that predominantly management sits outside of Quebec, that’s going to be a real challenge,” says Hlibchuk.
In order to comply, organizations have to ensure that all communications are also in French and if not, the risks are clear if an employee raises a complaint, says Fallon.
“You expose yourself to potential litigation and that includes potential damages, and there are different groups under the federal statutes: the commissioner of official languages, leading to the federal court for damages, or there’s the Canadian labour tribunal. That’s the pain point. It’s more litigation or potential litigation with employees.”
HR departments still in the dark
For HR professionals, it’s uncertain as to how the bill’s implementation will impact employees, according to Hlibchuk.
“How that is going to be applied is also going to be interesting. Is it going to be something that you’re going to have to check a box on a human resources intranet site, and that’s how it’s going to be managed? Or is it going to be based on the employers: is it going to be verbal?”
“All of these things are going to have to be fleshed out as far as the actual application of the law, and employee’s preferences and so forth. How are those going to be recorded and negotiated? That’s going to be another challenge,” he says.
