Canadian HR Reporter

CANADIAN HR REPORTER AUGUST 2018 INSIGHT 23 Weeding out fl y-by-night 'temp' agencies Bad apples seek out opportunities to prey on vulnerable, unskilled workers If you Google "temp agency," you will be over- whelmed by screens of options. "Temp" has become the catch-all term to defi ne a diverse spectrum of players. It lumps together everything from a sole pro- prietor seeking temporary work- ers for a small client base to a large billion-dollar global corporation. And staffing expertise spans those heralded as the "best com- panies to work for in Canada" to those that push employment law boundaries to exploit vulnerable workers. At the centre of this scenario are the candidates who need tem- porary placements to earn a liv- ing, and put faith in companies to place them in temporary roles, while adhering to employment and safety regulations. ey don't expect to be set loose in com- plex environments with slapdash training to meet deadlines and minimize costs. Similarly, HR expects staffi ng fi rms to screen and prepare the best candidates for the job. In Canada, the staffing sec- tor is a $13-billion industry — comparable in revenue to the electronics industry. It in- cludes more than 1,300 agen- cies providing support to about two million workers looking for various work options, includ- ing: temporary work, contract, temp-to-hire, permanent place- ment, direct hire and managed service provider (MSP) options. The industry represents about 13.6 per cent of our workforce, according to Statistics Canada. We struggle with the term "temp" at the Association of Ca- nadian Search, Employment & Staffi ng Services (ACSESS) be- cause it's outdated and evokes an image of the now-defunct sec- retarial pool. We prefer "staffi ng services" because it sums up how critical human resources are to business success in supporting short- and long-term needs. In today's digital economy, em- ployers' needs often change rap- idly, and leaders need comparable fl exibility to staff up or down. Staffi ng agencies partner with employers to respond to business realities and changing technolo- gies with nimble staffi ng options. ey support the internal staff with varied expertise — from entry-level to tailored, in-demand skills — that is critical to meeting business mandates. ey are committed to ensur- ing candidates are vetted for suit- ability and properly trained so they will be successful and safe during their assignment. Fly-by-night fi rms are not wel- come and they undermine our ef- forts to hold the industry to high standards. e bad apples may be categorized as temp or staffi ng agencies, but their legal compli- ance, as well as their professional, ethical and safety standards, are in sharp contrast. ere are signifi cant changes happening in Quebec that are setting an example for other prov- inces. Labour standards amend- ments are scheduled to come into eff ect in January. Among other things, they crack down on unreliable agen- cies by requiring all staffi ng agen- cies to be licensed by the prov- ince's Commission des normes, de l'équité, de la santé et de la sécurité du travail (CNESST) to ensure compliance with provin- cial standards. e onus in on the "client em- ployer" to ensure the agency is licensed. Failure to comply will result in fi nes of up to $6,000. is is an impressive leap for- ward and will act as an example to weed out those whose behav- iour has marred our industry, and hurts employees and clients. e reality is this: e cost of entry into our industry is low and we are continually looking for ways to push the bar high to protect our stakeholders. With no mandatory education creden- tials, anyone can register a busi- ness, create a website and seek out clients. e bad apples seek out op- portunities to prey on vulnerable, unskilled workers, whom they randomly select, give marginal training to — if any — and mini- mal support. Single owners may run several fl y-by-night operations that hide behind slight variations of famil- iar company names, authentic- looking websites and references, which quickly disappear when issues arise. ese poor practices have put workers' safety at peril, resulting in unfortunate to tragic accidents and creating issues for employers. We partner with the Workers' Compensation Insurance Board (WSIB) on a safety groups pro- gram to improve workplace safety outcomes among members. is program encourages employers to share best practices between agencies of all sizes, in similar industries. ACSESS has also worked with senior WSIB representatives to shape policy (the Framework for Compliance Initiative), which improves the staffi ng industry's performance. Since its launch, the safety groups program has signifi cantly decreased lost-time injuries. While current and pending legislation across Canada strives to protect workers and clients, greater enforcement in several provinces is needed through: • increased inspections • additional training to improve the eff ectiveness and consistency of these inspections • a review of existing enforcement processes and penalties to make them more appropriate and reas- sess ramifi cations levied against employers who breach or violate current provisions. Mary McIninch is executive director of the Association of Canadian Search, Employment and Staffing Services (ACSESS) in Toronto. For more infor- mation, visit www.acsess.org. If you Google "temp agency," you will be over- "Temp" has become the catch-all term to defi ne a diverse spectrum of players. It lumps together everything from a sole pro- Mary McIninch GUeST COMMeNTaRY Proselytizing in the workplace Employers should tread carefully when it comes to competing rights at work Question: We have an employee who claims his religion requires him to spread the "word of God" and attempt to convert his co-workers to his particular denomina- tion or sect. Given the duty to accom- modate employees' religious beliefs up to the point of undue hardship, are we required to allow him to proselytize to his co-workers at work? Several em- ployees have complained. Answer: While it is true employ- ers are required to accommodate employees' religious beliefs up to the point of undue hardship, problems can occur under hu- man rights legislation where the rights of one individual compete with the rights of others. Similarly, some religious beliefs and practices may even contra- vene some of the other prohibited grounds of discrimination. What happens, for example, if some- one's deeply held religious beliefs are such that she believes homo- sexuality is an abomination? Others may have deeply contro- versial views about topics such as transgender rights, abortion, the consumption of alcohol or contra- ception. is can cause problems when religious employees try to label their colleagues' beliefs and lifestyles as "sinful." While people's religious beliefs can be an important part of their identity and they should be able to talk about those beliefs in the workplace, preaching or attempt- ing to convert others goes too far. e workplace shouldn't have to be a "religion-free zone," but the interests of tolerance and diver- sity dictate that other employees cannot be insulted, harassed, de- meaned or discriminated against in the name of religion. This also applies to beliefs traditionally associated with an individual's current religion. In other words, freedom of religion should also include freedom from religion. Competing rights e duty to accommodate isn't absolute and does not extend be- yond the point of undue hardship. In addition to limits on the duty to accommodate under human rights legislation and case law, major problems can arise when one individual's rights compete with another's rights under the governing human rights legisla- tion. Competing rights can arise not only with respect to diff erent prohibited grounds of discrimina- tion (such as religion versus sexual orientation), but also in relation to the same ground (one person's religious beliefs versus another's competing beliefs). While the wording of the vari- ous human rights statutes across Canada diff ers, most allow for the accommodation of sincerely held beliefs based on religion or creed. is concept is important be- cause it recognizes that religious beliefs can be subject to individ- ual interpretation or degree of adherence. erefore, the duty to accommodate can arise with re- spect to an individual's religious beliefs, even if not everyone of that particular faith follows the same practices or beliefs. at does not mean, however, that individuals who argue they are required to "spread the word" as part of their religion should be allowed to do so in the workplace. Again, this is an issue of compet- ing rights under human rights legislation. e 2008 British Columbia Hu- man Rights Tribunal decision of Friesen v. Fisher Bay Seafood Ltd. provides a good example. Seann Friesen worked at a fi sh process- ing plant. He argued that his re- ligion required him to preach to others, and try to convert his col- leagues during work hours. But some co-workers objected. After being promoted, Friesen was asked to stop preaching and attempting to convert employees during work hours. He refused and his employment was termi- nated. As a result, he made a com- plaint to the B.C. Human Rights Tribunal. e tribunal upheld the em- ployer's decision to terminate, fi nding there was a bona fi de oc- cupational requirement based on the competing rights of other em- ployees that the complainant not preach to or try to convert them during work hours. e employer was required to maintain an environment where the religious beliefs of everyone were respected and employees felt comfortable. e tribunal found the employer had done everything it could short of undue hardship, and termination wasn't too heavy- handed a response. e law and practice are simi- lar in other jurisdictions. For in- stance, the Ontario Human Rights Commission has a policy on com- peting human rights, which makes a distinction between claims that solely aff ect business operations and claims that aff ect other indi- viduals. Claims that aff ect others are competing rights claims. The commission articulated several principles governing com- peting rights claims: • ere is no hierarchy of rights under human rights legislation, and no right is absolute. • Context is important and has an impact on competing rights claims. • It is important to determine which rights are involved and whether those rights are actually being infringed. Nevertheless, employers must take care not to make assumptions or stereotype others based on their beliefs. • Employers should balance the extent of rights infringement between diff erent individuals. Employers and employees should try to fi nd compromises wherever possible. It is best prac- tice to involve everyone in the accommodation process before resorting to an extreme measure such as termination. Brian Kreissl is the Toronto-based product development manager for Thomson Reuters Legal Canada's human resources, OH&S, payroll and records retention products and solutions. There are signifi cant changes in Quebec that are setting an example. Brian Kreissl TOUgHeST HR QUeSTiON

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