How does Bill 96 impact employers?

Already faced with requirements around the French language, Quebec employers will have to up their game with the passing of new legislation.

Bill 96, An Act respecting French, the official and common language of Québec, imposes new rules when it comes to the workplace.

A lot of employers will have to catch up because they may not be compliant with what was already required before the legislation, says Tania da Silva, a partner at DLA Piper in Montreal.

“But those who have been compliant with the Charter up to now likely just have to step things up a little bit, and won't have too much scrambling to do from an employment perspective, to get up to pace.”

While some effort will be required on the analysis side, these shouldn’t be significant, says Rose Massicotte, senior associate at BLG in Montreal.

“I don't think it should significantly affect businesses and make them afraid of doing business in Quebec.”

French first for employment contracts

The Charter of the French Language already imposed some requirements on employers when it came to the use of French in the workplace, such as written communications to staff and offers of employment. But Bill 96 is more specific about the documentation required.

For example, when it coms to employment contracts “of adhesion,” meaning they are templated and not up for negotiation, employers can’t just have a French version available, says Massicotte.

“In the past... employers will sometimes provide an English version of that contract, saying that the employee expressly requested to have a copy of that contract in English… Now… the employer in all cases will have to first present to the employee the French version of the contract, and if then the employee expressly requests to have a copy in English or another language of that contract, then the employer may present them with the English version.”

As for any employment contracts that were signed before the new legislation took effect, employers have one year of transition, she says.

“The employee can request to have a French version, and the employer will have to provide such translation of the employment agreement as soon as possible.”

The parties must evaluate the agreement in French before proceeding to contract in another language in order for that agreement in the other language to be binding, says Stephanie Blakely, an associate at DLA Piper in Montreal.

“That is going to be a huge change and is making some of our clients and employers nervous about the practical implications.”

It’s not clear how this will work in practice, she says, in “not simply relying on a choice-of-language provision that we would typically include in employment agreements that would say that… the parties expressly choose to contract in English or in any other language.”

There's some ambiguity there, she says.

“We aren't sure, either, as to the conformity of having bilingual agreements anymore, whether that would meet the requirement of giving a French agreement first, just because the presentation of the agreement is simultaneous in both French and English.”

What makes a contract of employment valid? Case law is littered with contracts that were declared unenforceable, says one legal expert.

Recruitment requirements change

With the passing of Bill 96 on June 1, HR will also face stricter requirements when it comes to job ads, as the French version must be comparable to the version in English or another language.

“[The employer] has to publish using transmission means that are of the same nature and reaching a target public of a proportionally comparable size,” says Massicotte.

“We want to give French and English candidates the same chances of reaching that job ad. So what we're saying to clients and employers is that if you're using a platform like LinkedIn for both languages, presumably that fulfills this requirement.”

In addition, Quebec is prioritizing French when it comes to skills and knowledge required for a job. The bill states that an employer “is deemed not to have taken all reasonable means to avoid requiring knowledge or a specific level of knowledge of a language other than the official language if, before requiring such knowledge or such a level of knowledge,” it does not meet certain requirements.

The first one is that the employer will have assessed the actual language needs associated with the duties to be performed, says Massicotte.

The second one is that the employer will have to make sure that the language knowledge that is already required from other employees in the organization and elsewhere was insufficient for the performance of those duties. And, finally, that the employer restricted as much as possible the number of positions requiring knowledge of English or another language.

“That's quite a test for employers to meet because some of them will have to do this analysis within the organization. So it may not be sufficient anymore to just say, ‘Well, I have an international business, and I just think that everyone in my business should be able to speak English,” she says.

“Now [it’s about asking] ‘Is it really sufficient? Is it really necessary that all your employees in the organization speak English or are required basically to speak English?’ It's not the actual language or knowledge of the language but basically more the requirements.”

And a lot of employers are questioning or wondering how this will be applied, says Massicotte.

“That has been making a lot of noise in Quebec because the criteria or the conditions to meet are quite high… only time will tell, we don't know how the officers of the French language will interpret that provision.”

As a result, employers should limit as much as possible the number of positions that require knowledge of English or another language, she says.

“And what's important is that this provision applies not only for future hires, but also for current employees that are employed by an employer.”

However, the new legislation does state that these requirements should not impose an “unreasonable reorganization” of a business, says Massicotte.

“That reassured some employers because it means that not all of them will have to go through all their organization or proceed to layoffs or just completely review their workforce.”

Canada posted a record-high job vacancy at the start of March with employers seeking to fill more than one million positions, according to a report from Statistics Canada (StatCan).

Francization considerations for employers

As a further requirement, businesses with five to 24 employees must disclose the proportion of employees who are unable to communicate in French. This will allow the Office québécois de la langue française (OQLF) to offer French language learning services.

“They will, basically, have to demonstrate that French is generalized within the business,” says Massicotte.

Previously, these francization requirements applied to businesses of 50 employees or more. Made up of at least six people, the committee has equal representation of workers and the business, and their job is really to ensure that the linguistic situation and the process of integration is followed, having a say through all the steps, she says.

“When you have more than 100 employees, it's automatic, you have to form one; when you have fewer than 100 but more than 25, it is not automatically required to form one, but the office may order you to do so.”

But this lowering of the threshold is only going to apply within three years after the date of assent of the bill, so committees and employers in Quebec will have time to adjust, says Blakely.

“Essentially, it means that they will have to register with the OQLF [Office québécois de la language française] and ensure that French is generalized within their company.”

The francization piece is going to require the most adjustment for smaller businesses in Quebec, because that is the more extensive process, says da Silva.

“Definitely, it's going to be covering a lot more companies with the lowering of the threshold to 25 employees or more.”

Employee protections boosted

Another area of importance with Bill 96 concerns reprisals, so employees are not punished for speaking up.

“[They] really want to make sure that all the employees will be able to carry on their work and exercise their employment and position in French, first and foremost,” says Massicotte.

The recourse for workers is “a game changer” for employers, she says, “because the employees will be entitled to file complaints for what we call prohibited practice. So, the employer will not be entitled to impose any sanction penalty, dismissal, demotion [or] transfer based on the fact that, for example, an employee exercises the right under the bill or Charter.”

It used to be that all the powers to enforce the French language under the Charter were investigatory and penal in nature, so the government official would either receive a complaint or investigate of its own motion, to see if a company operating in Quebec was compliant with the charter, says da Silva.

“Now, Bill 96 creates a new right for employees where if they believe that they've been a victim of discrimination based on their language, skills, or knowledge of language other than French, or they've been harassed due to the fact that they don't have a good command of language other than French, they can now file a claim with the CNESST, which is the essentially the province’s labour commission, to say that its rights are not being respected, and therefore has a private right of action that it can take against an employer to make sure that the language rights of the employee are met.”

In late October, Ontario said it was looking to provide protections for whistleblowers in sectors regulated by the Financial Services Regulatory Authority of Ontario (FSRA), including insurance, pensions and credit unions. And in July, British Columbia announced it is bringing more public service employees and organizations under the scope of the Public Interest Disclosure Act (PIDA).