Canadian HR Reporter

Canadian HR RepoRteR February 23, 2015 iNsiGht 19 Forcing employees to use vacation days What to do when a vacation deadline approaches Question: can we force employees to use their allotted vacation days if there's a deadline to use them? can an employer tell an employee not to show up to work even if she resists taking the vacation days? answer: e questions can be addressed in two parts: Can man- agement oblige employees to take vacation? And what redress does management have if an employee resists taking vacation? Employment standards legisla- tion addresses the first part. While legislation varies slightly from ju- risdiction to jurisdiction, the gen- eral law on vacation is consistent. Typically, legislation confirms the employer's right to decide when an employee will take vacation. Legislation typically specifies a "deadline" by which the vacation should be taken. For example, the Ontario Em- ployment Standards Act, 2000, reads: "e employer shall deter- mine when an employee shall take her vacation for a vacation entitle- ment year, subject to the following rules: • e vacation shall be completed no later than 10 months after the end of the vacation entitlement year for which it is given. • e vacation shall be a two-week period or two periods of one week each, unless the employee requests in writing that the vaca- tion be taken in shorter periods and the employer agrees to that request. It is within the purview of em- ployers to schedule or "force" vacation. Some jurisdictions re- quire that employees be provided with advance notice of a "forced" vacation. Nova Scotia legislation, for example, requires employ- ers to provide one week's notice. Further, employers that force va- cation should do so prior to the applicable "deadline" from the end of the vacation entitlement year set by employment standards legislation. For example, the Nova Scotia legislation echoes Ontario with a 10-month deadline, whereas Alberta and British Columbia provide for a 12-month deadline. In any instance, it is important for employers to review and act in accordance with the applicable legislation, and to ensure their ac- tions are not only in accordance with the law but with their own policies and practices as well. Additionally, employers of- ten ask about a "use it or lose it" policy. Typically, these policies may only apply to vacation time and pay that is in excess of the minimum entitlements under employment standards legisla- tion. For example, if an employee is entitled to two weeks' vacation under his province's legislation and his employment contract grants him three weeks of vaca- tion, the employer may invoke the use it or lose it policy with respect to the extra week of an employee's vacation and vacation pay entitle- ment or to unused vacation after the statutory period to use ac- crued vacation has passed (the 10-month or 12-month deadline referenced above). Note there is varying case law with respect to use it or lose it policies in some provinces (such as the 2004 Ontario case Geluch v. Rosedale Golf Assn.). Generally, these policies can be a good idea because there have been cases where a dismissed employee presents a big "vacation bill" on the way out the door. e second part of the question can be answered more directly. Absent any contractual provi- sions to the contrary, it is within the scope of management to con- trol scheduling and to determine vacation periods. It follows that an employee who shows up for work outside a designated schedule is disregarding that authority and, therefore, may be sent home and subject to discipline. For more information see: • Geluch v. Rosedale Golf Assn., 2004 CarswellOnt 2621 (Ont. S.C.J.). Brian Johnston is a partner at Stew- art McKelvey in Halifax. He can be reached at (902) 420-3374 or bjohn- ston@stewartmckelvey.com. Why candidate experience matters one of the hottest catchphrases in hr right now is the notion of "candidate experi- ence" — which is part of an organization's overall employer branding proposition. While most people would prob- ably think treating candidates respectfully is a no-brainer, some organizations are only now wak- ing up to the idea that candidates' recruitment process experiences have a significant impact on em- ployee engagement, motivation, retention and perceptions of the organization in both the labour and product markets. ese days, news of a poor candidate experi- ence could potentially go viral within hours, turning off many others who may be interested in working for the organization or even buying its products. I have previously discussed the need to treat candidates with dig- nity and respect, to keep them in the loop in terms of what's going on and provide them with timely and appropriate feedback if they are no longer being considered (although candidate experience is much more than that). Yet many companies still don't understand the importance of treating candi- dates well, and a high percentage of recruiters and HR practitio- ners don't even believe candi- date experience is an important consideration. Being a former recruiter and occasional hiring manager my- self, I get it. I know what it's like to have hundreds of unqualified candidates apply for one vacancy and candidates who won't take no for an answer even when they aren't a fit. In a tough job market, it's easy to succumb to the idea that can- didates are an annoyance and their experience throughout the recruitment process doesn't re- ally matter. After all, isn't being too nice to someone who isn't an "A" candidate far too time-con- suming and likely to give him the wrong idea? (I'm being sarcastic here.) Candidate experience includes everything from the moment someone applies to a job online right through the entire recruit- ment process, interviews, back- ground and reference checks, hiring and onboarding. In other words, an organization that is se- rious about improving candidate experience needs to examine the entire process from end-to-end. Handling candidate rejections One person I know — an HR prac- titioner, actually — recently inter- viewed with three organizations. Unfortunately, he didn't land any of the positions but, interestingly, none of the three companies han- dled the rejection the way a best practice employer should. One somewhat curtly rejected him via email after he followed up, and he never did receive an an- swer from the other two even after following up (in one case, several times). He basically just had to as- sume he wasn't moving forward (one of the three interviews hadn't gone well but he thought he had a legitimate chance with the other two). What astounds me is this relates to the way one HR professional was treated by other HR profes- sionals, and two of the three or- ganizations were big, well-known companies. But even successful candidates are frequently treated poorly by the organizations that eventually hire them. Improving candidate experience It is a bit of a cliché but candi- dates are interviewing companies as much as they are being inter- viewed themselves. While it is important to provide a candidate with a realistic job preview (RJP) — which involves information on both positive and negative aspects of the job and organization — pre- sumably an employer would want candidates to think positively of the organization. In many ways, employers need to "woo" candidates — without overselling the position or the organization. This is especially important as the job market con- tinues to improve. An organization that is serious about improving candidate experi- ence should examine the following: • Existing internal and external re- cruitment policies, practices and procedures. • A candidate's overall experience applying for a vacancy online and the user-friendliness of the com- pany's applicant tracking system (ATS). • e organization's careers web- site, the content of job postings and the messaging, look and feel of any recruitment advertising. • e organization's facilities, par- ticularly lobbies, meeting rooms and reception areas. • e structure, format, length and number of interviews candidates are required to attend. • Any testing completed by can- didates, as well as simulations, facility tours, etc. • The amount and type of in- formation provided to candi- dates about vacancies and the organization. • Candidate communications, including interview schedul- ing, next steps, background and reference checks, job offers and candidate rejections. • Any feedback from candidates, recruiters and hiring managers. • Relevant metrics such as time- to-fill, recruitment sourcing, new hire retention rates and percentage of rejected offers. Brian Kreissl is the product develop- ment manager for Carswell's human resources, OH&S, payroll and records retention products and solutions. For more information, visit www.carswell. com. It's easy to succumb to the idea that candidates are an annoyance and their experience throughout the recruitment process doesn't really matter. It is within the purview of employers to schedule or "force" vacation. Some jurisdictions require that employees be provided with advance notice. "If what is being posted here is true, then I recommend that all 17,600 employees (of Target Canada) should contact the law firm Koskie Minsky — appointed to represent employee's interest. I totally believe that if there are some employees who will be making stay-home pay and others won't, then it is only fair that the working employees at the end are paid at least two weeks. Maybe the answer lies in knowing who will get to keep the outstanding balance of the "Employee Trust account." — Anonymous, commenting on Todd Humber's blog "Target hits mark with severance fund" "So it seems that in the HR world it is perfectly rational that the failed CEO of Target gets $61 million while the Target employee who didn't fail gets an average of $3,977? That doesn't make sense. " — Andrew Gilmour, commenting on Todd Humber's blog "Target hits mark with severance fund" Join the conversation. Comment on any blog on www.hrreporter.com. reader CoMMentS Brian Johnston toughest HR Question Brian Kreissl Guest commentary

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