Employers 'should definitely be reviewing their employment policies, agreements to make sure they are complying'
Just over a year ago, Quebec brought in further changes to legislation with an aim to boost – or prevent the decline of – French usage in the province.
While the Charter of the French Language already imposed some requirements on employers, such as written communications to staff and offers of employment, Bill 96 was more specific about the documentation required.
And now, a one-year “buffer” provided by the government is ending.
It’s been a busy 12 months, according to Stephanie Blakely, an associate at DLA Piper in Montreal.
“Employers are taking this change in the legislation seriously and have been updating their employment policies, have been translating their policies, their employment agreements, as well... So lots of work has definitely come out of this change.”
And employers should be prepared, judging by recent stats from the government. The Office québécois de la langue française (OQLF), the regulator that oversees enforcement of the Charter, provided an overview from April 2022 to March 2023 showing there were 6,884 complaints about possible violations — a dramatic climb of 145 per cent over the past five years — with five per cent related to language at work.
“It's something for clients to be aware of, that they should definitely be reviewing their employment policies, their employment agreements to make sure that they are complying with the Charter requirements, especially with the upcoming deadlines,” she says.
Three types of documents requiring translation
Since June 1, 2022, three types of documents that were newly created had to be available to employees in French (or bilingual):
- employment application forms
- documents relating to conditions of employment
- training documents produced for the staff
However, if an employer had pre-existing policies (before June 1, 2022), they had some leeway, says Blakely, as the government “gave them this one-year buffer to translate any of those documents. So that’s the important deadline that is coming up.
“And as you may know, equity plans, equity agreements, employment policies — those can be a rather lengthy documents and can take some time to translate so that's why that one year was provided.”
These included documents such as:
- job postings, job application documents
- employment policies, documentation regarding employee benefits, equity plans and agreements
- training policies and procedures, employee handbooks
If these were available in English, the employer had to ensure that the French version was available on terms that were at least as favourable, says Shari Munk-Manel, office management partner at McMillan in Montreal.
“This provision did take effect on June 1, but employers had until June 1, 2023 to make a French version of these documents available. So, moving forward, if you do not have a French version of those documents, you won't be compliant anymore.”
Legal challenges with translations
If, however, an employee had an English employment agreement or contract that existed before the June 2022 deadline, they had one year to request a French translation — and the employer would have to provide it at no cost to the employee.
After June 1, 2023, employees can no longer make that request for older agreements, she says. But such requests are rare because often individual employment agreements are drafted in English, and the employee’s preference for that is mentioned in the signed document.
“Typically, employers were only providing English employment agreements to employees that wanted them in English anyway. So those haven't come up that much as a result,” says Munk-Manel.
However, if there's a discrepancy between the French and the English version of the employment agreement, the employee can invoke either version of the agreement. So it's important to make sure that the text is properly translated — using Google Translate would not be recommended, says Blakely.
“And if the French translation is not up to par, is not the same as the English version, doesn't mean the same thing, it can definitely cause issues down the line and can result in complaints, can result in all types of other consequences.
“I would say any type of legalese would need to be finely crafted and translated and then reviewed, probably by legal counsel, to make sure that it has the correct meaning.”
For new documents created after June 2022, they automatically must be provided in French for Quebec employees.
“And if the employee indicates that, no, there actually is a preference to receive employment agreements in English, then they can provide it in English,” she says.
Enforcement of French language rules
As for enforcement by the Quebec government around the Charter of the French language, it's largely a complaints-based process, and then the office will encourage corrective measures, says Blakely.
“If the company does not comply with those corrective measures, it has the option of imposing fines or taking away the company's certificate of francization. And that can have significant consequences for companies that require that certificate in order to obtain public contracts, for example, or to do business in Quebec.”
Once a complaint is filed, usually the government will conduct a bit of an audit and then a company will be required to comply, says Munk-Manel.
However, the OQLF has been more proactive at trying to require or encourage employers to comply with francization requirements, she says.
“One example that we've seen… is that the OQLF looks to be monitoring the Quebec [Enterprise] Register, which is called the REQ, and if a company declares having more than the threshold number of employees in Quebec, the OQLF has been proactively reaching out to them to ask them to register… for the purpose of francization.”
