This document can also be downloaded here: PCA memo to members re Employment Standards survey.
Please do not distribute.
Please find below a point-by-point review of the online Employment Standards survey:
This is just an identification section, some of which does not need to be disclosed by participants if they prefer.
The name of this section (Promoting Family-Friendly Workplaces) is designed to get a particular result. Who would say they are opposed to “Family-Friendly Workplaces”? Missing is any consideration of the added costs to employers and how that may lead to lower employment, lower pay or benefits in other areas, or other decisions that employers may make or will tend to make because of added employment costs (e.g., rightly or wrongly, employers will tend to avoid employees associated with greater costs).
Questions in this section include the following:
To what extent do you support or oppose aligning job protection for unpaid leaves with federal EI benefits? (Strongly support, Support, Oppose, Strongly Oppose, Don’t know / unsure)
This is probably one of the less controversial areas of the survey, in part because Alberta already recognizes most of these leaves, they are unpaid, and the circumstances are sympathetic. Nevertheless, the issue is whether all Alberta employers must provide leaves based on federal benefit programs. Is there a reason Albertans should be entitled to leaves just because the federal government is prepared to provide benefits? PCA members will have their own views of what is appropriate and agreeable or not. Overall, it is probably better for employers to not agree that Alberta leave requirements should correspond to federal entitlement programs.
Background: The federal EI program provides paid benefits to employees in certain circumstances; however, provincial legislation governs whether employees are entitled to leave from work (paid or unpaid). Alberta’s leave entitlements are similar to the federal benefit periods, but not necessarily the same. For instance:
- Maternity benefits: Alberta allows up to 15 weeks of leave; the federal entitlement is 15 weeks of benefits, plus there is a one-week waiting period.
- Parental benefits: Alberta allows up to 37 weeks of leave; the federal entitlement is 35 weeks of benefits, plus there is a one-week waiting period (i.e., Alberta already exceeds the federal entitlement).
- Compassionate care benefits: Alberta allows up to 8 weeks of leave; the federal entitlement is 26 weeks of benefits, plus there is a one-week waiting period.
- Crime-related death or disappearance of a child: There is no specific Alberta employment obligation, whereas there is a federal entitlement of up to 35 weeks of income support.
- Personal sickness, injury or quarantine: There is no specific Alberta employment obligation, whereas there is a federal entitlement of up to 15 weeks of income support.
- Reservist leave: Alberta provides an entitlement to reservist leave whereas there is no corresponding federal benefit.
To what extent do you agree or disagree that an employee’s job should be protected during the one-week waiting period for maternity, parental and compassionate care EI benefits? (Strongly support, Support, Oppose, Strongly Oppose, Don’t know / unsure)
The consequence of this question would be to lengthen the period of protected leave to cover the EI benefit waiting period. Although it is modest, employers should generally oppose such an extension.
To what extent do you support or oppose the adoption of an unpaid, job-protected leave for the parents of critically ill or injured child, at imminent risk of death?
This protection would currently fall under Alberta’s compassionate care benefits, whereas the federal entitlement is up to 35 weeks of benefits. This may be a worthy leave for employers to provide; the question is whether all employers should be required to offer, on expanded terms, up to 35 weeks. Overall, it is likely not in employers’ interests to support legislative change.
To what extent do you support or oppose the introduction of a job-protected leave for personal, short-term sickness or injury which allows employees to earn/accrue sick time based on their length of employment?
Sick leave, while common in Alberta, is not protected by statutory mandate. Of course, human rights protections and the duty to accommodate already apply. Employers should generally not support mandatory sick leave so that employers and employees may deal with such matters as they determine appropriate.
Please rank the following models of earned sick leave from one(1) to three (3), using one (1) as your top choice:
Employees earn one hour of sick time per 30 hours worked
Employees earn one day of sick time per 30 work days
Employees earn one day of sick time per month of employment service
Don’t know / unsure
This question is problematic because it forces participants to indicate an answer even if they don’t support the options. In that case, they might just select “Other” and write “None” in the box. Alternatively, the order of these options based on the least cost are as follows:
1 – Employees earn one hour of sick time per 30 hours worked
2 – Employees earn one day of sick time per 30 work days
3 – Employees earn one day of sick time per month of employment service
Options 1 and 2 are roughly the same, depending on the particular schedule worked. Option 3 will result in more sick time per year.
What is the maximum recommended length of an unpaid, job-protected leave for personal, minor sickness or injury?
Employers should either select “Other” and type “None” or select the lowest option which is “5 days.”
Using the chart below, please select how long you think an employee should be working for the same employer before they can access the following leaves (Please indicate your response in each column).
The current qualifying period for various leaves under the Employment Standards Code is 52 weeks of employment (1 year). The government is proposing shorter qualifying periods. It is better to keep the entitlement at 52 weeks.
What do you think is a reasonable notice requirement for an employee commencing compassionate care leave?
Alberta, along with other provinces, currently requires an employee to provide two weeks’ notice to commence compassionate care leave, unless circumstances necessitate a shorter period. A 2-week notice period is also required to return from this leave, unless the employer and employee agree to a shorter period. The government is asking about reducing the notice period. It is not necessary to change this requirement. It already allows for urgent circumstances.
If Alberta were to introduce a new, unpaid, job-protected leave for family responsibilities or personal emergencies, which of the following would be your preference? Please rank the following options from one (1) to three (3), using one (1) as your top choice:
Various options are provided for new forms of leaves.
For most employers, the desired option would be “New leaves are not needed for these circumstances.” The other options could be left blank. Otherwise, of these options, a leave involving personal emergencies would be less burdensome than leaves for general “family responsibilities.”
The potential for abuse of these new leaves should be a concern for employers.
What do you think is a reasonable length for a single, unpaid, job-protected leave that applies to situations involving both family responsibilities and personal sickness and injury?
Employers should either select “Other” and type “None” or select the lowest option which is “3 days.”
The name of this section (Modernizing and Simplifying Existing Standards) is again designed to get a particular result. These proposals should be of particular concern to employers in respect to added costs and burdens:
To what extent do you agree or disagree with increasing the banked overtime rate from 1:1 to 1:1.5?
This would increase the cost of banked overtime by 50%. Employers should strongly oppose this change.
Compressed Work Weeks: Please select the approach you prefer:
Employers should prefer the current system which allows greater flexibility. The proposed new system would limit the possible work cycles to 4 weeks. Many compressed work weeks are longer than 4-week cycles. This change would reduce employer flexibility.
To what extent do you agree or disagree that an employee should earn a mandatory 30-minute rest period for every five consecutive hours of work?
The current requirement is a 30-minute break (paid or unpaid) for shifts longer than 5 hours. The proposal is to require 30 minutes of rest for every 5 consecutive hours of work. While this may not be a large change, it is an added cost which employers should generally oppose.
Do you have any comments regarding the proposal to eliminate the regular/irregular work day distinction for the purposes of calculating general holiday pay?
In Alberta, holiday entitlement depends in part on whether the holiday falls on a regular work day. If it does not, there is no holiday entitlement. The government is proposing to remove this distinction so that everyone would get holiday pay or extra time off even if they already get the holiday off (because it is not a regular work day). Employers should oppose this change. Here is a sample of what might be written under comments:
“There is no need to change the current determination of whether the holiday falls on a regular work day. Holiday pay or time off is not required if the employee already has the holiday off work. The proposed change would be an added and unnecessary cost.”
Please rank the following approaches to general holiday pay eligibility from one (1) to three (3), using one (1) as your top choice:
The government is asking about easing the requirement for holiday pay that the employee must have worked at least 30 days in the 12 months before the holiday. Five options are provided:
No change – 30 work days in past 12 months
15 work days in the past 30 days
30 days of “employment service” with the same employer
90 days of “employment service” with the same employer
Eliminate the qualifying period
Employers should not support eliminating the qualifying period. Of the other options, the options based on “work” are better than the options based on “employment.” Here is a ranking of the options:
1 – 15 work days in the past 30 days [this captures current active service]
2 – No change – 30 work days in past 12 months
3 – 90 days of “employment service” with the same employer
Of the employment requirement options, 90 days is better than 30 days; otherwise, don’t put a third option.
Please select the approach you prefer for calculating average daily wage:
Holiday pay is based on the employee’s average daily wage calculated over the 9 weeks preceding the holiday. The government proposes other methods such as an average over 4 weeks or a calculation based on a percentage of wages. There isn’t one right answer, but the current 9-week average may be preferred as representing a longer period and potentially a more accurate average. If a 4-week average is preferred, it should probably be based on the actual days worked, not an arbitrary 20 days as posed.
To what extent do you agree or disagree that employers should be allowed to deduct from an employee’s wages if the employee agrees to the deduction and receives a direct benefit in return?
Employers should likely agree to this question, although it is clouded a bit by the reference to receiving a “direct benefit in return.” This may be a bit of a trick question in that deductions should be permitted even if the employee doesn’t get a direct benefit (e.g., tax deductions).
Apart from the amounts required by federal or provincial law or court order and amounts authorized by collective agreement, what kind of deductions should an employer be allowed to make from an employee’s wages? Please select all that apply.
It is preferred that employers be able to make deductions in all of the noted instances. There will presumably be safeguards put in place.
What types of jobs would be appropriate for youth between 13 and 15 years old? Please select all that apply.
This is perhaps a matter of personal opinion, but it is hard to see any reason to prevent youth from performing all of the listed jobs.
Group Termination Notice
This is a significant potential change which should be opposed. The current obligation is for employers to notify the Minister only when 50 or more employees will be terminated at a single location within a 4-week period. The proposal would require notice to unions and employees as well (not pay in lieu of notice). There are many reasons such notice may not be prudent. For instance, the requirement of working notice may leave employers with a huge morale problem for employees who will continue working. It could present a significant negative impact on operations and loss of flexibility.
It is unclear how these proposals would apply to the construction industry.
None of the options in this first question is acceptable. “Don’t know” might be the best option.
Graduated Notice Requirements
The government is proposing to increase the group notice requirements from the current 4 weeks to as much as 18 weeks. This would be a massive imposition and cost to employers.
The government is also looking for added notice if as few as 10 employees are being terminated instead of 50.
Employers should select the option “No change to current notice requirements.”
Comments under this section could identify the added cost and complications from mandatory group notice to employees and unions, particularly if the notice requirements increase. In addition, there is no reason why group terminations warrant more notice. The individual termination notice or pay in lieu of notice provides appropriate protection to employees. Finally, the government should not reduce the threshold for group termination notice below 50 employees.
This section is on Enforcement and Administration. The government is looking to increase resources and penalties. Employers should generally oppose such changes as added regulation simply means more red tape and expense.
Which options do you believe will help strengthen compliance and enforcement? Please select all that apply.
Most of these options are unappealing for various reasons. The following options might be acceptable:
Introduce progressive penalties to deal with repeat offenders
Enhance the authorities of Officers to dismiss unfounded complaints
Allow for modern and electronic methods to serve documents
Publicly post the names of employers who have demonstrated consistent non-compliance with employment standards
PCA members will have their own opinions of these options.
To what extent do you support or oppose the establishment of an administrative penalty system in Alberta?
Administrative penalties are probably not a good idea to employers. It is just an additional threat the regulator may use against employers.
To what extent do you support or oppose the establishment of specific criteria for the Director of Employment Standards to review permit applications?
This question is a bit tricky. On the one hand, identifying criteria helps with transparency and consistency. However, criteria can limit the flexibility of the Director of Employment Standards to allow exceptions to the Employment Standards Code that make sense to both employers and employees. On the whole, there is a concern that criteria would hamper flexibility.
In the comments section, participants might identify that the government should allow a flexible approach to permits, based on all of the circumstances of a given case.
This section is for Additional Comments.
Employers might use this section to oppose any changes or to encourage restraint by the government and ask that it be careful about imposing extra regulation and cost to employers, which are deterrents to employment. Changes are not necessary, especially at the current time with many Alberta employers struggling. Employment will be fostered by less government interference.