THE IMPACT OF BILL 96 ON HUMAN RESOURCES
On June 1st, 2022, the world changed for companies with employees in Quebec, regardless of their size.
No longer can management teams take liberties with the language in which they communicate. Now, whether or not an employee makes the formal request, companies must prepare for all employment agreements, contracts, reviews, and any other communications to be available in French. Staff can agree to correspond in English, but an agreement must be made in writing.
Simply put: if you haven’t yet translated your English documents to French, stop reading this article and get started right now.
We recently spoke with Tanya Da Silva, Partner at DLA Piper, who shared insights about what Bill 96 means for HR and general management teams moving forward.
Tanya Da Silva
Partner, DLA Piper
Under the previous Bill 101, employment contracts could be provided in English so long they included the "French Language Clause", which stated that both parties had agreed to have the documentation offered in English only. The clause would apply to any document employees had signed and agreed to, such as confidentiality agreements, restricted covenants, IP protection agreements, etc.
In essence, the employer could dictate what language is used in signed documentation. Bill 96 has passed, and now things are very different.
"Now, what’s required is that the French version be provided at the outset," says Da Silva, "it has to be provided first and then, only if the employee requests it in another language, can it be provided in English."
This means that the company's current documents will need to be translated into French. Consider employment agreements, contracts, employee handbooks, workplace policies, and just about anything else you can imagine – they are all required in French and must be presented as the first option until an individual employee requests in writing the English variations.
Further, the French documents must be made available in a format that is at least as accessible and desirable as the English versions. This is but one consideration within Bill 96 to ensure all francophone Quebec-based employees are not discriminated against in the workplace.
There are some nuances between the types of communications that are required to be translated, such as training courses versus formal documentation.
According to the previous legislation, workers had the right to carry on their activities in French. However, the new legislation states that the employer has the obligation to ensure that this worker's right is respected. "There’s an additional obligation there on the employer," says Da Silva, "Let's say, for example, that employers only provide a certain [training course] to their employees in the English language, that is provided out of their California office by someone who's speaking about anti-harassment (in English only) and it is mandatory for all employees. Under Bill 96, the employer has an active obligation to ensure that the worker in Quebec can carry out their activities in French."
Thus, when speaking about trainings that are mandatory and are only presented orally, you need to determine if you have to translate and provide that same training to the employees in Quebec in the French language.
The employer must ensure that all training materials are available in French, without exception. "The content has to be accessible and be able to be provided to the employee in French as well," continues Da Silva, "The [training content] needs to be there, which is not necessarily the same for documents, where it has to be accessible under the same terms as the English version."
In other words, this doesn't necessarily mean that the employer must provide training from a French-language speaker or translate the content under the same terms as the English one, but the core content must be understandable and accessible to the employee.
Conversely, formal documents, such as application forms, incentive plans, RRSP documents, and so on, must be available in a comparable document, in the same format, and available from comparable sources. For example, suppose you leverage an intranet for your English documentation. In that case, best practice will be to ensure your French documentation also lives within the intranet and is as accessible as the English version.
At the beginning of the Charter of the French Language, it was set out that workers had the right to carry on their activities in French. Bill 96 strengthens this further, as it now applies to general communications to individual employees.
"Communications to individuals need to also be in French," Da Silva warns, "This raises a very interesting and practical aspect, which we don’t know - how will it be handled in practice?"
Previously, communications to all employees that included Francophone Quebecois employees had to include an English and French version. However, it is unclear if communications with individual French-speaking employees must be conducted in French.
"If the CEO doesn’t speak French because they are in a different country, how does that apply practically?" Da Silva questions.
"One-on-one communications don't have to be translated, but when somebody is acting in their capacity as a representative of the company, unless the employee explicitly says 'I'd like to receive your communications in another language,' it appears that the person [corresponding with the Francophone] will have to send those communications in French."
There are certainly shades of grey, especially in this case. As a best practice, it is advisable to translate as many communications as possible and review the assistance guides provided by the office québécois de la langue française (OQLF; Quebec office of the French language).
Bill 96 has also changed how companies can publish job advertisements, making the process stricter than the previous legislation.
Previously, employers who published job advertisements in English (or any language other than French) had to also post a version in French.
According to Bill 96, an employer who intends to publish a job advertisement in a daily newspaper must do so in French first. Suppose the employer wishes to also post it in another language, such as English. In that case, they must ensure that it uses the same transmission means and reaches the same public target of proportionally comparable size. The company must assess the tools used to publish advertisements in such a case.
But, before posting any job in English, the employer should go through an assessment exercise to determine if they need an employee to speak English for the vacant job position.
"Employers will have to take reasonable means to justify that knowledge of another language is required as a hiring criterion," warns Da Silva, "every employer will have to demonstrate that it has assessed the actual language needs associated with the duties of the job they are posting."
This means that employers must demonstrate the following when posting a job in English or any other non-French language:
The new legislation will significantly impact business operations. Still, according to the bill, companies will have a one-year transition period available to ensure they stay compliant and show how they have met the assessment obligations. Notably, this one-year transition period does not apply to employee communications, which already need to be provided in French.
On the other hand, employees who believe they have been victims of reprisals or are unlawfully required to have specific knowledge of a language other than French can file a complaint about prohibited practice with the Quebec labour standards board. To do so, the employees have a 45-day window of opportunity from the date the incident occurred. However, if the complaint is not settled, employees have the right to send it for adjudication to the labour tribunal.
Indeed, Bill 96 will significantly impact businesses; soon enough, you will need to adjust to the new way of doing business in Quebec. It will be a challenging transition, but we will assist you with the proper knowledge and tools you need to overcome translation obstacles.
Ensure you stay compliant with Bill 96 - Connect with our team!
