HR Insights - Fall 2022

HR INSIGHTS

FALL 2022

SARC’s Human Resources and Labour Relations Newsletter

#16 ADDRESSING STAFF SHORTAGES

In this issue, consultants from SARC and MLT Aikins discuss the ongoing issue of labour shortages and how to continue to operate effectively throughout the shortage and during the hiring process.

Contents How to Overcome Labour Shortages and Retain Employees Chiaka Nweze

Plans to Address Staff Shortages Marrion Wolff

Top Tips for Avoiding Legal Mistakes in the Recruitment Process Amy Gibson

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About the consultants

About Marrion Marrion can assist SARC’s Regular and Associate Members with a variety of LR/HR issues, including progressive discipline, performance management, and duty to accommodate for unionized and non-unionized organizations. She can also provide specific support in collective bargaining for unionized organizations. Accessing this service is free of charge and can minimize organizational risk. Having a quick check-in or a review done before decisions are made can save you time and money in the end.

Marrion Wolff SARC Labour Relations Consultant

About Chiaka Chiaka is with SARC on a term basis covering a maternity leave. With a vast amount of experience on a variety of HR topics, she is lending her expertise to a number of special projects within HR, including training programs, metrics, sector recruitment, and resources/tools in support of SARC Members’ HR functions.

Chiaka Nweze SARC Human Resources Coordinator

About Amy

Amy Gibson L a w y e r , M LT A i k i n s

Amy Gibson carries on a general labour and employment law practice. She advises employers on a variety of labour issues, including union certification drives, collective agreement interpretation, labour disputes, workplace policies, discipline and discharge, employment contracts, OH&S, workers’ compensation, labour standards and human rights. She has experience with a variety of court and administrative proceedings as well as representing clients before the Saskatchewan Labour Relations Board and in Canada Labour Code unjust dismissal adjudications.

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HOW TO OVERCOME LABOUR SHORTAGES AND RETAIN EMPLOYEES WHAT CAN ORGANIZATIONS DO IN A PERIOD OF LABOUR SHORTAGES?

Chiaka Nweze

SARC Human Resources Coordinator

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abour shortage is a term used to express a gap between the labour requirements of an industry or sector and the actual number of workers available to fill roles. In very lay terms, labour shortage happens when there are not enough available workers to fill roles and openings to meet the demands of employers.

It is no longer news that Canada is experiencing a labour shortage, despite a historical low unemployment rate. In a Statistics Canada report, there is a 63% increase in the number of job openings across sectors, with nearly half of positions remaining unfilled after a period of 60 days. Indeed.com, Canada’s top hiring website, also recorded a 69% increase in job postings between February 2020 and March 2022. The social service / support worker sector is not immune to this as it has taken a hit too, with vacancies staying open for longer and existing staff being tasked to cover more shifts

or forfeit vacations to meet work demands. This has also come up in our frequent engagement with our SARC Members. Therefore, this article will aim at pointing organizations to adjustments that can be made to overcome or reduce to the minimum labour shortage impacts. Having established the fact about labour shortage in the sector, what kind of interventions should an organization put in place?

1. Revisit your recruitment strategy: Recruitment has been identified as the gateway into any organization. Success or failure of recruitment determines same for the organization. As things change in the labour market, organizations must be open to approaching recruitment from a very creative point of view. Here are a few suggested adjustments to recruitment: All recruitment starts from a needs assessment and

subsequent design of job descriptions. Organizations are encouraged to revisit their needs assessment for roles and ultimately the job descriptions.

How relevant and realistic are your role expectations and the requirements for filling the roles?

Are these requirements cast in stone or can they be adjusted?

Are the role expectations overwhelming and unrealistic?

Some job descriptions may have been perfect a few years ago when they were initially designed but need revamping to suit current realities.

The next crucial step in recruitment that may need to be reviewed to fit into the current labour market realities may be how organizations spread the word regarding their openings. Do an audit of how your organization currently spreads the word when you have vacancies and determine how suitable that is for your target audience. Is your target

4 audience still going to the same place to obtain information about jobs or are they accessing other platforms? How is your visibility on those preferred platforms? How explicit are your role descriptions as well as your description of the organization to prospective applicants?

Do you showcase your organizational culture in a way that draws your target audience in?

For instance, if your target audience is young energetic millennials, running adverts on local newspapers may be less effective than running them on social media or other online sources.

Today’s employees want to work for forwardthinking employers in a comfortable environment with flexibility and growth opportunities, so be sure to highlight how your organization supports these things. Also consider other traditional one-to-one ways of sourcing new employees – for example, career fairs. Offer internships and seasonal opportunities, which could appeal to post-secondary students who are home during school breaks. Those students might be your opportunity to fill casual roles, while growing your pipeline of permanent staff once they love the workplace.

Employees are your biggest asset and having employees who understand the vision of the organization recommend people through a referral mechanism can also be a game changer during labour shortages. Consider establishing a documented referral bonus process and procedure that can be used to encourage existing staff to make referrals when there are openings.

This process needs to be thought through,

documented, and followed through to avoid abuses and to ensure the referrals are leading to success (ex. Only paying the referral after the new employee has been with the organization for a certain period of time, rather than paying it on day one.

2. Consider higher benefits and perks: Once organizations hear this, the first thing that comes to mind is increase in salary. However, we know the budgetary constraints related to funding and other pressures and that this is not always realistic. What organizations should consider is how they can increase perks that also make the people feel better catered to/ valued. It has been proven that some employees are motivated intrinsically while others are extrinsically, so if there are budget restrictions, focus on perks that may not necessarily cost the organization an arm and a leg but create a sense of belonging and family.

For example, social days at work where food or finger food can be brought in. An arrangement with another local organization/business that can provide some services required by your employee at no cost or reduced cost by showing their work ID (ex. Gym membership). Making training opportunities available and supporting staff to access these opportunities. Showcasing internal opportunities for growth, with staff aware of a clear personalized career plan.

Service/recognition awards and seniority perks.

These are some of the perks that can create a sense of belonging and create a longer stay effect.

Some savings made from no-salary payment in the period of labour shortage can be channeled to this cause. If considering educational offers that mandates the employee to stay in employment for a period of time afterwards or pay back investment if leaving early, ensure that this is contractual and liaise with your legal counsel to ensure that the wordings are proper and enforceable.

3. Watch for staff burnout: During labour shortages, it’s inevitable that current staff end up taking on more than their usual workload. In human services, if it needs to be done it needs to be done – the people you support are counting on it. As best you can,

5 try to stay on top of this and watch for signs that people are becoming stretched too thin. Burnout, as we know, will have additional negative impacts on the employee and the workplace. Be sure that management is checking in with staff (and that management have senior leaders and others to lean on).

Do what you can to offer some flexibility in picking up additional shifts and ensure employees do not face backlash if there are particular shifts they just can’t pick up due to family or other commitments.

4. Be strategic in your planning: Consider the use of temporary staff to fill in every now and then. Develop a database of possible temporary staff that can be called in every now and then when the pressure gets high to help keep things in check. If unionized and considering student hires during breaks, consider how this intersects with your collective bargaining agreement (CBA) and whether the students fall within the certification order.

The cost of labour turnover on the employer is always high, hence organizations should do everything they can to retain talents as well as attract talents who are the right fit. For changes to job descriptions, qualifications, remuneration, extra perks (gift cards etc.) as suggested above, please note that you may or may not need to negotiate with the union, depending on the change being implemented and the wording of the CBA. For a unionized workplace, put this into consideration when examining if the change can be implemented, rather than automatically including the union in the discussions. First, check the CBA. If the CBA is silent, the employer may just be able to implement it, but you may want to consider checking with legal counsel first. For non-union workplaces, notice of any changes only needs to be provided to existing employees if the changes will also impact them. The amount of notice should be the same as if they were being terminated without cause.

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PLANS TO ADDRESS STAFF SHORTAGES Marrion Wolff

SARC Labour Relations Consultant

Recruiting during a labour shortage can be challenging, and it would appear we are in a labour shortage at this time. Many organizations are finding positions unfilled and casual/relief employees are nowhere to be found. Vacant positions are being posted but are not attracting an adequate pool of applicants to choose from. This of course puts stress on the organization’s ability to operate efficiently and has negative effects on employee morale and work load. So what can we do in this situation?

While certainly not ideal, organizations may have to consider hiring employees who have less than the minimum qualifications listed in their job descriptions by utilizing a conditional hire. This means that the employee is offered the job providing they meet the stated conditions in the time limit indicated. For example, an employee may be hired without the minimum requirement of a driver’s license and be given six months to attain the license. Make sure this is clear at the time of hiring and there is a predetermined and clearly communicated deadline for the employee to acquire the qualifications. This information must be included in the Offer of Employment. Also, there must be clear consequences, such as termination, if they fail to do so. If unionized, consult with your union when introducing this practice and check your collective bargaining agreement as well as your organizational policies to ensure you are not in violation of them.

Additionally, when comparing a candidate’s potential gaps in qualifications compared to the organization’s desired qualifications, organizations should determine which, if any, could be acquired by the candidate at a later date and still result in a newly hired employee right now who is able to perform the core functions of the position. In these situations, a conditional employee might have to be scheduled to work in such a way that they are not working alone, for example.

This may exclude them from night shifts or less than full time employment until they have met all the conditions of their hire. This practice may be an employer’s only option in cases where there are no qualified applicants responding to the job postings.

In addition to conditional hires, organizations should have a plan in place to deal with extreme shortages that may affect their ability to cover shifts. If you have already developed a plan in case of a strike, a pandemic, or other emergencies, then you may only need to tweak it a bit to provide assistance during

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staff shortages. When there are no casual staff available and a staff member calls in sick, what is your plan of action? We know that management can and does fill in periodically in emergency situations; however, this cannot be an ongoing solution. Over time this solution will cause burnout and exhaustion in your management team and probably concern from the union who will object in the form of grievances if this becomes a frequent occurrence. Generally, labour shortages are not resolved in a few weeks or even months, so having a contingency plan in place is imperative. Knowing in advance what steps and measures may be taken provides comfort to managers trying to deal with the staffing shortage and also gives that notice to the employees who are affected by the measures and their union.

The plan may include putting a freeze on approving all discretionary leaves in order to ensure coverage is available when nondiscretionary leaves occur, such as sick leave or bereavement leaves. Organizations may have to go so far as to cancel leaves that have already been approved. This would likely be for as short a time period as possible as a last resort and then reviewed at the expiration of the time period

to see if the situation has changed favourably.

Discretionary leaves include all those where the employer has the ability to approve or deny the leave, usually based on operations feasibility, such as vacation leave, education leave, and leaves without pay. In order to determine a comprehensive list of the discretionary leaves in your organization, consult your policies and collective bargaining agreement (if unionized).

In all of these situations, the employer must be sure to follow the provisions in their collective bargaining agreement and be in communication with their union. Remember also that if an employee has incurred costs in planning a vacation, for example, and the employer has to cancel that vacation, the employer will need to reimburse the employee the costs they have incurred.

Another part of the staff shortage plan may be to contact retired employees and other persons in your area that may be either qualified to work in your organization, or as close as possible to being qualified. Having this contact information up to date and available will help during times of staff shortages.

Staff shortages put stress on all levels in the organization, but having a plan to deal with this on both a day-to-day staffing basis and to provide future direction can reduce the negative effects in your organization.

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TOP TIPS FOR AVOIDING LEGAL MISTAKES IN THE RECRUITMENT PROCESS Amy Gibson

Partner, MLT Aikins LLP

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ith the changing landscape of employment retention, many organizations are engaging in the recruitment process more often than in previous years. Whether you are a seasoned recruiter or new to the process, it is helpful to review potential legal pitfalls that may arise to help protect the organization against possible costly litigation from employees or candidates.

This article will cover the top three legal challenges in the recruitment process and recommendations for how to protect an employer’s interests when they do arise.

1. Human Rights Risks As many employers are aware, there are several protected grounds under human rights legislation which an employer is not permitted to ask candidates about in the interview process. For example, birthplace or national origin, citizenship status, religion, and disability. But what happens if a member of the interview panel asks an offlimits question? Or if the candidate voluntarily raises the information in the interview? In these situations, an interviewer should not engage in further discussion on the topic and should change the subject. They should not, however, pretend it did not happen. It should be documented and those involved in the recruitment should ensure it is not factored into the hiring decision.

Despite best practices, there is always a possibility that an unsuccessful applicant or a disgruntled employee will file a human rights complaint.

For example, an individual may claim that they

did not get the job or the promotion because of their gender. If a complaint does arise, the best chance of preventing a poor outcome is at the beginning of the process. It is recommended that employers take the time to gather and review all the information and identify any knowledge gaps regarding the substance of the complaint. They should ensure they treat the complainant fairly, cooperate with the Human Rights Commission, and consult legal counsel early in the process.

2. Poaching Employees Employee poaching often occurs through social media, third-party recruiting companies, mutual contacts, or references. Although there is nothing inherently wrong with employee poaching in and of itself, it can pose legal risks. The first of these issues is that inducement of an employee can be a relevant factor in determining termination

or notice pay. For example, if an employee has been employed by their previous employer for 20 years and a new employer entices them to join their workforce but then terminates their employment without cause after 6 months of employment, the previous 20 years may be factored into their common law notice entitlements.

While likely not top of mind in the recruitment process, this potential added liability should be a consideration in deciding whether to target a long-serving employee of another organization.

Employee poaching can also result in the breach of a noncompete clause. If an employer is aware that an employee would be breaching a non-compete by accepting a position, the employer could be sued in tort for breach of contract. Non-competition clauses are typically only common for higher-level employees, such as executive directors, but can also be found in some template hiring agreements utilized by other organizations.

3. Reference Checks Regardless of whether an employer is conducting a reference check or providing one, there are legal considerations to be aware of. A job applicant may argue that they did not receive the job because of what was conveyed by a reference. They could make allegations of slander against a former or existing employer that what was communicated about their work performance was defamatory. It is important to understand that employers have the right, to tell the truth, but should be careful not to exaggerate or embellish. The case law supports the position that an employer needs to be able to give an honest reference as to the strengths and weaknesses of an employee without the fear of being sued. Employers should be cautious when providing reference checks and only comment on behaviour that they have direct knowledge of. Employers should also choose their words carefully and take notes of the conversations that occur when a reference is provided.

With this information in mind, recruiters should also consider the value of reference checks and that only limited information may be conveyed from previous employers. If a former employer provides a negative comment about a candidate, an employer can rely on this information. If the candidate believes the comment to be untrue, the potential claim would be against the former employer.

Employer liability may arise even before an employment relationship begins. If recruiters have any concerns regarding what occurred during the recruitment process, it is recommended they obtain legal advice early on to help reduce the potential for costly litigation.

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