Canadian Employment Law Today

July 23, 2014 | Canadian Employment Law Today Canadian HR Reporter, a Thomson Reuters business 2014 CRedit: Kinga/ShutteRStoCK.Com ers can reduce exposures to allegations re- lated to discriminatory treatment of older workers by setting out clear policies and expectations for all staff — then consis- tently applying them without exception. Be prepared to conduct regular performance evaluation sessions, and make sure the cri- teria used to assess employee performance is consistent and based on objective job criteria. Stay focused on the fact that what really matters is an employee's skills and ability to perform the job. Also, it's increasingly important to en- sure the organization has a human rights policy including mechanisms to resolve any complaints of differential treatment due to age. It's equally critical to ensure that employment agreements with valid and enforceable termination clauses are in place to minimize the organization's finan- cial liability in situations which involve ter- minating the employment of workers who are older and may have long service with the company. Be intentional about workforce plan- ning and succession. At some point, aging employees will have to retire or move on, which means organizations will need to strategically prepare for that impending labour shortage. As such, workforce and succession planning are both necessary and legitimate to ensure the transfer of skills, as well as the meeting of all function- al requirements. But organizations should be sure never to discount older employees from consideration for promotion or de- velopment opportunities without clear jus- tification — lest they risk a costly human rights challenge or age-related discrimina- tion lawsuit. To make matters more com- plicated, age is considered a significant barrier to finding employment, which in- creases the notice period an organization would be required to provide to a termi- nated older worker who does not have his or her termination entitlement dictated in an enforceable employment agreement. When conducting workforce and suc- cession planning, it is reasonable and le- gally permissible to ask an older worker about his retirement plans, as this is rec- ognized as being necessary for employers to ensure ongoing operational needs are met. However, these inquiries should not be made in a manner that places pressure on that employee to step down from his or her role. To stay onside of the law, employ- ers should have this discussion as a matter of course with all employees, recognizing that younger employees may have career plans that include an exit from the orga- nization that could also create a skills gap. Also, be careful to not have discussions regarding retirement plans in the context of performance-feedback sessions or when meting out discipline, as this could suggest a taint of age-related discrimination. Leverage multigenerational opportuni- ties. ere are currently four generations working together across Canadian work- places — the Silent Generation, boom- ers, Gen X and Gen Y, with Generation Z on the cusp of entering the workforce. e presence of multiple generations in the workplace, with different work styles, values, expectations and motivations, can cause challenges for employers and place a strain on morale. at is, if employers don't engage strategies to recognize these variances and leverage the opportunities that they create. ese include opportuni- ties to preserve and pass on the organiza- tion's vision and strengths through men- torship of younger workers by their older peers. is also serves to communicate ap- preciation and recognize the value of older workers, which is key to keeping them en- gaged. Strategically partnering members from different generations on projects can also enrich and maximize innovation in the workplace. About the Author LAURA WILLIAMS Laura Williams is the founder and principal of Williams HR Law, a human resources law firm in Markham, Ont., serving employers exclusively. She can be reached at (905) 205-0496 or lwilliams@williamshrlaw.com.

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