Labour Standards and Workplace Compliance Lawyers

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Overview of Labour Standards in Quebec

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Employees are the driving force of a company as they enable many small and medium-sized businesses (SMEs) to meet the technical needs of customers or secure important contracts. With hiring comes several responsibilities, including the need to comply with labour standards set out in the Act Respecting Labour Standards, the Labor Code, the Act Respecting Industrial Accidents and Occupational Diseases, and the Act Respecting Occupational Health and Safety, to name a few. The Commission des normes, de l'équité, de la santé et de la sécurité du travail (CNESST) is the government agency responsible for ensuring compliance with various labour standards in the province of Quebec. The diversity and complexity of these labour standards make it easy for a business or its human resources department to question the validity of many employee requests, such as leaves of absence for illness or family obligations, maternity or paternity leave, salary payment, tip management, overtime hours, holidays, meals and coffee breaks, and work schedules, to name a few. Our labour standards and workplace compliance lawyers aim to regularly advise businesses (SMEs) and human resources departments (HR) on all labor standards-related issues to ensure the proper management of the company, its staff, and its workforce.

Except for employees of federally regulated companies benefiting from labour standards provided for in the Canada Labour Code, and workers largely excluded from the Act Respecting Labour Standards, such as interns, caregivers, senior executives, and employees covered by the Construction Decree, the labour standards provided for in the Act Respecting Labour Standards apply to the vast majority of private sector employees and remain a reference for unionized employees governed by a collective agreement. The most common questions from employers relate to leaves of absence, salary, pay and vacations, and work schedules.

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Leaves of Absence

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The law provides circumstances where it is justified for an employee to be absent from work. Employees can be absent due to illness, accidents, family obligations, and even for organ donations or when they are victims of criminal acts. Collective agreements often provide even more generous conditions than those outlined in the Act Respecting Labour Standards.

Regarding absences due to illness, an employee can be absent for a period of six (6) months (i.e., precisely 26 weeks) if they have at least three (3) months of continuous service with the company. The employer should be notified of the employee's absence as soon as possible. If the absence continues, it is reasonable under certain circumstances for the employer to request a medical certificate from the absent employee explaining the reasons for their absence and their inability to perform their work duties. If the absence extends beyond six (6) months, the employer should assess if it is possible to accommodate the employee. In case of impossibility to return to work, the employer may, after obtaining proper legal advice, given the sensitivity of the situation, terminate the employment agreement.

The law also recognizes that being a good mother or father and fulfilling family obligations is a job in itself. This is why an employee has the right to be absent from work without pay for ten (10) days per year to fulfill their obligations related to the care, health, or education of their child or their spouse's child. They also have ten (10) days of unpaid leave to care for their spouse, father, mother, brother, sister, or even one of their grandparents. Interestingly, these days can be divided into half-days if the employer agrees. The employee still has the responsibility to minimize their absence as much as possible to ensure their presence at work. Extended absences are also allowed in cases provided for by law, such as serious illness or accident of a close relative (child, father, mother, spouse, grandparents, etc.). The same applies to more serious situations (e.g., death, suicide, funerals, disappearance, etc.).

On a happier note, employees who are new parents, either through the birth or adoption of a child, are entitled to take leave from work. This is referred to as maternity leave and paternity leave. In Quebec, female employees are entitled to a minimum maternity leave of eighteen (18) weeks without pay. Male employees, on the other hand, are entitled to five (5) weeks of paternity leave without pay.

The Act Respecting Labour Standards provides for several leaves, with or without pay, in various situations and circumstances. Each case deserves analysis before determining whether the employee is entitled to leave with or without pay.

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Salary

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The term « salary » comes from the latin « salarium », derived from « sal » in latin or « salt » in Englishbecause the Romans paid their soldiers with salt crystals that were worth their weight in gold at the time. Of course, nowadays, salary refers to the monetary compensation for services rendered and tasks performed by the employee for the company.

It is common knowledge that the minimum wage is set by government decree and is expected to increase from year to year. As of May 1, 2023, the minimum wage increased to $15.25 and $12.20 for tipped employees. It is important to note that employers cannot include employee benefits, such as the value of meals or the use of the company vehicle, in the calculation of the minimum wage.

The salary must be paid in cash in a sealed envelope or by a cashable cheque within two business days following receipt. Of course, bank transfer or direct deposit, which is commonly used in many companies and SMEs in Quebec, is a legal method of payment. It must be paid at regular intervals not exceeding sixteen (16) days and in person unless it is a direct deposit.

The pay sheet or « pay stub » must include the following information, subject to any additional regulations, as provided in Article 46 of the Labor Standards Act:

• The employer's name
• The employee's name
• Identification of the employee's job (e.g., accounting clerk, cashier, receptionist, etc.)
• The payment date and the work period corresponding to the payment (e.g., a two-week period payable the following Thursday)
• The number of hours paid at the regular rate
• The number of hours paid as overtime or replaced by leave (e.g., hours exceeding the normal forty (40) hour workweek paid at time and a half)
• The nature and amount of bonuses, allowances, benefits, or commissions paid
• The hourly wage rate
• The gross salary amount
• The nature and amount of deductions made (e.g., Quebec Pension Plan (QPP), Employment Insurance premium, Quebec Parental Insurance Plan (QPIP), provincial tax, federal tax, etc.)
• The net salary amount after deductions
• The amount of tips

This list may not be exhaustive, so it is advisable to consult with a labour standards and workplace compliance lawyer or someone familiar with human resources from time to time. The purpose of this law is to allow the employee to verify the calculation of their salary.

The employer can withhold salary if required by law, a court order, a regulation, a collective agreement, or a mandatory supplementary retirement plan. They can also withhold for specific reasons specified in the employment contract, such as payment of premiums for disability group insurance, dental care, medications, etc. The employer's right to withhold salary with the employee's consent is of considerable importance since many employees must contribute to retirement plans, pension funds, group insurance, and even pay union dues when they are unionized. Section 49 of the Labor Standards Act does not prevent the employer from withholding salary for a debt owed by the employee or the company, provided that the debt is certain, liquid, and due. Salary withholding can be a source of conflict between the employer and the employee, so it is recommended to consult with a labour standards lawyer before making an unusual salary withholding to avoid the intervention of the CNESST.

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Tips

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When you go to a restaurant, a hotel, a bar, or a bistro, it is common knowledge that good service deserves a tip, which can vary between 15% and 25% of the bill before taxes. This requirement is not stipulated by law and is a widely accepted and practiced custom in our society. The Act Respecting Labour Standards provides that tips must be given in full to the employee to supplement their salary, which must be equal to or higher than the minimum wage for tipped employees. It is common practice in some restaurants or businesses to share tips among employees, which the law calls a tip-sharing agreement. However, this practice is not prohibited but is regulated by the Act Respecting Labour Standards. Small and medium-sized enterprises (SMEs), especially those in the restaurant industry, should ensure that tip-sharing complies with the Act Respecting Labour Standards to avoid conflicts between employees.

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Vacation Time and Vacation Pay

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We believe that everyone has the right to rest and take vacations, whether they are workaholics or not. And this is what the Labour Standards Act provides for employees. For the first year, employees are entitled to one (1) day per full month of continuous service with the company. After one (1) year, employees are entitled to a minimum of two (2) continuous weeks, and after three (3) years with the company, they are entitled to three (3) weeks of vacation. This calculation applies to most Quebec employees but may differ depending on the industry or what is provided in the employment contract or collective agreement for unionized employees. Of course, with the employee's agreement, vacations can be accumulated in a vacation bank to be taken or paid as salary, depending on what is specified in the employment contract or collective agreement.

When the business owner or employer terminates the employee's employment contract, whether due to dismissal or resignation by the employee, an indemnity for unused vacation days during the reference year must be paid to the employee. This vacation indemnity, commonly referred to as the 4%, is a requirement under the Labor Standards Act. It involves paying 4% or 6% of the salary paid during the reference year for employees with more than three (3) years with the company. We recommend consulting the table provided by the CNESST by clicking the following link: http://www.cnt.gouv.qc.ca/conges-et-absences/vacances/index.html

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Work Schedule

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The standard workweek stipulated by the Act Respecting Labour Standards is forty (40) hours per week. All overtime hours must be paid at time and a half. However, many Quebec workers in the private sector are paid an annual salary with a bonus paid at the end of the year based on the company's financial performance. With such a work pace, the normal 40-hour workweek is often far exceeded, and in some cases, employees work an average of 50-60-70 hours per week. The Act Respecting Labour Standards specifies that certain employees, including managers, are not subject to the normal 40-hour workweek for calculating overtime hours. Therefore, one must be careful before concluding that an employee working more than 40 hours per week is entitled to be paid overtime for every extra hour.

Furthermore, it should be noted that employees can choose to replace overtime pay with paid leave of equivalent duration. In such cases, the company can establish an overtime bank and offer the option to take paid leave.

Owners of small and medium-sized businesses (SMEs) should be aware that an employee must clock in to ensure a minimum presence of three (3) hours. Even if the employee works for less than an hour, they must be paid for three (3) hours. So, dear employers, for your part-time workers, it is in your best interest to call them in advance to avoid having them come in during low traffic times and, if they are on the premises, ask them to perform tasks, even minor ones, and pay them at least for three (3) hours.

The famous coffee break is not mandatory. However, if the employer, in a gesture of generosity and appreciation towards their employee, offers a coffee break, it must be paid and included in the calculation of hours worked. For a work period of five (5) hours or more, the employee is entitled to a thirty (30)-minute break, typically provided for lunch, but it is not paid, unlike the coffee break. However, when the employee cannot leave their workstation to take this thirty (30)-minute break, it must be paid to them.

Interestingly, an employee is entitled to a minimum rest period of thirty-two (32) hours per week. The business owner or the human resources (HR) department must schedule at least a thirty-two (32)-hour gap between two working days in the weekly work schedule for employees. Of course, as is often the case, unionized employees may have longer rest periods specified in a collective agreement. Those who have weekends off easily meet this requirement set by the Act Respecting Labour Standards.

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Other Special Situations

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For minimum wage employees, the employer must provide the necessary materials, equipment, and goods for them to perform their tasks. Indeed, it would be a lot to ask minimum wage employees in a fast-food chain to bring their own uniforms and kitchen tools.

For employees who need to travel by car or public transportation, the Act Respecting Labour Standards provides that the employer must reimburse reasonable expenses incurred. A road representative must, therefore, be reimbursed for mileage and gasoline expenses if they are not self-employed.

Several special situations can arise and cause headaches for both employers and employees. For example, an employee cannot refuse to work if refusing would result in a breach of their code of ethics. Therefore, a doctor or nurse cannot stop working if a patient is in a critical condition and no other employee is available to care for them. But what about the employer who asks an employee to perform a task, and in doing so, the employee would violate their code of ethics? Can a dentist, for example, report their dentist employer for a practice they deem to be contrary to the dental code of ethics, even though the law stipulates that the employee has a duty of loyalty to their employer and cannot, in other words, bite the hand that feeds them? Many questions remain unanswered in the law, and it is up to labour and employment lawyers to study and analyze caselaw and the interpretation of labour standards tribunals. We are aware of this reality and ensure that we stay updated on the latest jurisprudential trends.

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Pay Equity

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It goes without saying that women have been able to carve out their place in the job market. They now more easily attain leadership positions, have salaries that are largely comparable to those of men, and employers are, in most cases, more open to accommodating female employees so they can fulfill their family obligations. In fact, business owners have no choice; the law requires it.

However, it is clear that even today, there are still some inequalities between men and women in the job market. Women's work must be paid at its true value. The salary must be equal to that of equivalent male jobs within the company. With this in mind, the government has adopted the Pay Equity Act. Companies with an average of more than ten (10) employees are now required to assess whether there is a wage gap between comparable jobs within the company. Employers must submit a report on the implementation of this Act, generally at the same time as filing the annual update declaration with the Quebec Business Register. We invite you to consult the following link: http://www.demes.gouv.qc.ca. Many companies are currently failing to meet these obligations, and we can expect the government to enforce the law and impose fines for violations, ranging from $1,000 to $45,000.

Our employment and labour lawyers assist employers in complying with these pay equity obligations, regardless of their situation.