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The Practice of Human Resource Management in Canada: Two: Employment Law

The Practice of Human Resource Management in Canada
Two: Employment Law
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“Two: Employment Law” in “The Practice of Human Resource Management in Canada”

Chapter 2 Employment Law

Rules are an important feature of organizational life. We can all think of some basic ones. Show up on time. Pay your workers what they are owed. Do not sexually harass anyone. An important source of these rules are laws passed by a legislature that require or prohibit certain behaviours. Organizations may also develop their own rules to guide their behaviour and decision making or to enter into contracts that include certain rules. This complex web of rules can sometimes be difficult for human resource practitioners to navigate.

For example, in 1992, Tawney Meiorin was hired by the British Columbia Ministry of Forests as a firefighter. After she was on the job for three years, the employer implemented a series of new fitness tests for firefighters. These tests were developed in response to a coroner’s inquest report that recommended only physically fit employees be assigned front-line firefighting duties. Meiorin passed all of the new tests except an aerobic test. This test required her to run 2.5 kilometres in 11 minutes. Her best time in four attempts was 11 minutes and 49.4 seconds. She was subsequently fired.

Through her union, Meiorin contested the termination. The union argued that there was no evidence that passing the aerobic test was necessary to perform the work of a firefighter. It also argued that the aerobic test discriminated against women. As a group, women have lower aerobic capacity than men and thus are less likely than men to pass the test. The union said that adopting this aerobic standard effectively barred most women from forest firefighting jobs and thus constituted discrimination on the basis of gender. Gender discrimination was prohibited by British Columbia’s Human Rights Code. Employers seeking to impose discriminatory standards were required to demonstrate that the standard was a bona fide occupational requirement (BFOR). A BFOR is a qualification necessary to do the job and thus a basis on which discrimination is justified.

The arbitrator hearing the case found that there was no credible evidence that Meiorin’s inability to meet the aerobic standard created any sort of safety risk and ordered Meiorin reinstated. A complex set of legal appeals followed. In 1999, the Supreme Court of Canada upheld her reinstatement and established a new test to determine when an employer can legally discriminate against a worker on the basis of a BFOR. A BFOR exists when the standard

  • • is rationally connected to the performance of the job,
  • • is adopted in an honest and good faith belief that it is necessary to the fulfillment of the job, and
  • • is reasonably necessary to accomplish a legitimate work-related purpose such that the worker cannot be accommodated without imposing undue hardship on the employer.1

The court held that the Ministry of Forests had failed to demonstrate that the aerobic test was reasonably necessary to identify those individuals who could safely perform the job. Indeed, that Meiorin had successfully performed the work of a firefighter for three years before the aerobic standard was established suggested that it was not a valid test. Because the employer could not demonstrate that the aerobic test was reasonably necessary to accomplish a work-related purpose, it was not a BFOR. Firing Meiorin for failing to meet a test that discriminated against women was therefore contrary to the Human Rights Code. The government was directed to rehire Meiorin and compensate her for lost wages.

Meiorin’s case illustrates several important points. First, establishment of the rule (i.e., a fitness standard) was well intentioned. It was, after all, designed to protect the employer’s workers. Unfortunately, it contravened the Human Rights Act. Both sides ended up with hefty legal bills. Meiorin lost her job and never returned to work as a firefighter because of the delays caused as the employer appealed the original arbitration decision.2 The employer also experienced reputational and financial consequences because it violated the Human Rights Act. The difficulty that this relatively sophisticated employer had in effectively navigating the employment law when responding to a legitimate workplace concern (worker safety) illustrates how legally complex and risky the practice of human resource management can be.

Second, this case is a good example of how the social identities of workers can shape how employer policies affect them. The aerobic standard appears, on the surface, to be an objective one (i.e., run X distance in Y time). It is only after examining physiological differences between men and women that the discriminatory nature of the standard becomes apparent. This standard is an example of an insidious “male norm” that often underlies HR practices. Many aspects of the workplace—from hours of work to equipment and job design—are unconsciously based on the assumption that a worker is an averaged-sized, able-bodied man with a partner at home.

Third, this case illustrates how employment laws limit employer behaviour by either requiring employers to take action or prohibiting their behaviour. That these laws limit the power of the employer tells us that employer behaviour often has profoundly negative consequences for workers (such that laws are required to protect them). After all, employers are in the business of making money, not protecting workers. These laws also tell us that workers are often unable to resist such behaviours effectively on their own (thus, the state must act to protect workers from employer behaviour). On the surface, this dynamic suggests that governments use laws to balance (at least somewhat) the power of employers and that of workers. As explored below, though, the idea that the state operates as a neutral referee can be difficult to reconcile with the often weak government enforcement of employment laws that the state enacts.

The rest of this chapter introduces the common and statutory law relevant to employment. These sources of law form part of the web of rules that regulates employment relationships (see Figure 2.1). HR practitioners must understand the rights and obligations of both employers and workers to avoid running afoul of the common or statutory law. Subsequent chapters build upon this introduction to employment law and flesh out how the law applies to each of the main human resource functions. Special attention is paid to the law affecting hiring in Chapters 4 and 5 as well as discipline and termination in Chapter 9. A third source of worker employment rights (collective agreements negotiated by unions) is addressed in Chapter 10.

This figure shows the web of rules arranged around the central employment relationship.

Figure 2.1. The web of rules

Common Law of Employment

Employment is a contractual relationship. As discussed in Chapter 1, workers agree to make their capacity to work available to their employer in exchange for some combination of wages and benefits. Sometimes the details of the employment contract are recorded in a comprehensive, written form. Other times the contract is entirely verbal. More often, though, the contract is a combination of written and unwritten agreements. For example, an employer might provide a written employment offer that includes a job title, a start date, and a wage (e.g., $25 per hour). There might be a job description (probably outdated and incomplete) supplemented by some verbal promises. There might also be an employee handbook or a set of policies (which might or might not be provided to the worker at the time of hiring) that sets out things such as hours of work. All of the other details, from the dress code to how the employment relationship can be terminated, are left unwritten.

Given the converging and diverging interests of workers and employers, it is not surprising that disputes can arise about the exact terms and conditions of employment. For example, a worker might be hired to work full time (which, in practice, might be 35 hours per week). Later the employer might decide that business is slow and thus offer the worker only 16 hours of work in a week, with a commensurate reduction in wages. The employment contract might be silent on whether and how the employer can reduce the number of hours of work. If the worker and the employer cannot land on a mutually agreeable solution to the dispute, then what happens? Well, the employer can terminate the employment contract (termination is discussed in Chapter 9). But, more typically, the employer will simply impose its preference on the worker (by scheduling and paying the worker for only 16 hours of work). The worker can either accept this or quit and sue the employer for violating (in the worker’s view) the verbal agreement on the hours of work.

When faced with a claim in a matter about which the contract is silent, the courts rely on the common law to reach a decision. The common law is a series of rules about employment that originates from past legal decisions (i.e., it operates on the principle of precedent). These rules give guidance on which rights and obligations exist in the absence of explicit contractual or statutory provisions that say otherwise. Basically, the common law lets judges fill in the blanks when adjudicating a claim in the absence of explicit rules. Given that the common law arises from precedent, interpretation of it can shift over time and in different contexts. Nevertheless, some core obligations are generally accepted to exist.

In the absence of a clear agreement to the contrary (e.g., language in a written contract), employers’ common law obligations include the following.

  • • Work and remuneration: An employer must provide a worker with the wages that the two parties negotiated. An employer must provide the worker with the opportunity to work as per their agreement. If the employer significantly alters a worker’s job duties or reduces a worker’s hours, then this is a repudiatory breach of the employment contract. That is, the employer has effectively terminated the worker’s employment.
  • • Consideration: An employer that wishes to alter the terms of a contract must gain the consent of the worker and provide that worker with something of value (called consideration) in exchange for the new terms. If a worker does not consent to the change, then the employer can choose to provide the worker with notice that it is terminating the employment contract.
  • • Notice of termination: Unless otherwise specified (e.g., a temporary job with a fixed termination date), employment relationships are normally considered to continue for an indefinite period of time. An employer that wishes to terminate an indefinite employment relationship must normally give the worker reasonable notice of termination (or pay in lieu of the notice). An exception is when the employer has just cause (i.e., an acceptable reason) to terminate the employment immediately, such as when the employer catches the worker stealing. Notice and just cause is explored further in Chapter 9.
  • • A safe worksite: Under common law, employers are required to provide a reasonably safe system of work. This obligation generally has been usurped by statutory occupational health and safety laws (see Workplace Injury Prevention and Compensation below).

Employers are also vicariously liable for their workers’ actions. That means that employers are responsible for negligent acts or omissions by workers while they carry out job-related duties. This reflects the fact that the employer has the right, ability, and duty to control the worker in the execution of the worker’s job.3

Workers’ common law obligations include the following.

  • • The obligations of good faith and fidelity: A worker must act in a manner consistent with advancing the employer’s business interests. For example, a worker cannot normally operate a business on the side that competes with the employer’s business. Workers are also prohibited from behaving in a way that undermines the fundamental relationship of trust that exists, for example by stealing from or bad-mouthing the employer.
  • • The duty to obey: Once employed, the worker is the employer’s to command. Although there are common law and statutory limits on what an employer can demand of a worker, generally speaking a worker must obey lawful commands of the employer in the workplace context. Refusing to follow an employer’s lawful orders is considered a form of insubordination and can give an employer just cause to terminate a worker’s employment.
  • • The obligation to perform work competently: A worker must normally be able to perform competently the duties assigned by the employer. Gross incompetence or repeated failure to perform work in a satisfactory manner will void the employment contract.
  • • The requirement to provide notice of resignation: A worker is required to provide the employer with notice of intention to terminate the employment contract. This requirement is rarely enforced because an employer is usually happy to be rid of a departing worker as quickly as possible.4

These common law rights and obligations are clearly asymmetrical. An employer’s obligations are significantly less expansive than a worker’s obligations. Basically, an employer is required to pay what it has agreed to pay and not to change the terms of the contract without the worker’s agreement. In contrast, workers must do pretty much whatever their employers tell them to do. Indeed, the obligation of good faith and fidelity requires workers to subordinate their own interests (even when they are not working for the employer) to the employer’s interests.

The common law rights and obligations regarding employment were informed by the master and servant tradition, which subordinated workers to employers. The assumption of the subservience of workers to employers remains evident in today’s common law. This legal asymmetry reinforces the labour market power that employers wield over workers. This means, first, that workers must take jobs in order to purchase food, shelter, and other necessities of life, and employers can use the usual surplus of workers looking for jobs to drive hard bargains, and, second, that when workers take jobs they must legally subordinate themselves to their employers.

Sophisticated employers can include language in their employment contracts that reduces their common law requirements. Consider the earlier example of a worker whose boss has reduced the hours of work from 35 to 16. Under the common law, the employer would be in breach of its duty to provide work and remuneration. The employer could offer the worker some consideration to reduce the worker’s hours. A sophisticated employer, however, might have anticipated that it would need one day to vary workers’ hours and included provisions for doing so (perhaps with one week of notice) in the original contract. This explicit contract language would stand in place of the common law and allow the employer to do this.

Any employer that did not have this foresight, but also did not want to offer consideration or pay reasonable termination notice (because that would cut into its profit), could just ignore the common law. That is, it could reduce the worker’s hours and see what the worker does. The worker (who needs a job) might just accept the change or might quit and perhaps sue for breach of contract. But a lawsuit is a slow and expensive process that few workers can afford. The relative inaccessibility of a legal remedy for workers suggests that there is sometimes a difference between the rights that a worker has and the rights that a worker can realize.

This is not to say that workers are without recourse or power. Workers whose bosses change the wage-effort bargain can sometimes force their employers to accommodate their interests. For example, if an employer adds steps to a work process (so that the worker has to work harder to achieve the same output), then the affected worker might just ignore the extra steps or do the job less well. Workers can ignore many employer directives if they are prepared to risk the potential consequences (i.e., discipline or termination). This kind of resistance, whether individual or collective, can pressure an employer to negotiate mutually acceptable terms, such as a different work process, lower production targets, or higher wages.

Statutory Employment Law

Governments sometimes enact laws (also called legislation) that extend or usurp the rights and obligations that workers and employers have under the common law. This statutory law often sets certain minimum terms and conditions of employment and/or empowers government agencies to enforce the law. For example, few workers will sue their employers for stolen wages since it usually costs more than the value of the wages that they would recover and takes years. To prevent rampant wage theft, governments have enacted employment (or labour) standards that require at least monthly wage payments and allow government inspectors to recover stolen wages.

There are 14 different sets of statutory employment laws in Canada: one for each of the 10 provinces and three territories as well as one in the federal jurisdiction. Although that sounds confusing, 90% of workers are subject to the laws enacted by the jurisdiction (i.e., the province or territory) in which they work. Federal employment law affects federal government employees as well as workers in interprovincial industries, such as banking, interprovincial rail and trucking, telecommunications, air travel, and uranium mining.

Typically, a jurisdiction enacts laws addressing

  • • minimum terms of employment,
  • • unionization and collective bargaining,
  • • work-related injury prevention and compensation,
  • • discrimination, harassment, and pay equity, and
  • • information privacy.

This chapter considers all of these statutory laws except unionization and collective bargaining, which are dealt with in Chapter 10. A sometimes-confusing topic is the role of the Charter of Rights and Freedoms in employment law. Feature Box 2.1 provides a brief overview of how the Charter shapes the content of employment law as well as the behaviour of governments when they act as employers.

Feature Box 2.1 The Charter of Rights and Freedoms

The Charter of Rights and Freedoms plays an important but sometimes confusing role in employment law. The Charter is part of Canada’s Constitution. It sets limits on the power of the government by identifying certain fundamental rights and freedoms that all individuals in Canada are deemed to possess, including political rights (applicable to Canadian citizens) and civil rights (applicable to anyone in Canada). The Charter has two main implications for employment relationships.

First, it indirectly affects all employment relationships by limiting the content and application of statutory employment laws. For example, Section 15(1) of the Charter says that “every individual is equal before and under the law and has the right to the equal protection and equal benefit without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”5 This requirement means that statutory laws must not be discriminatory. The case of Delwin Vriend illustrates how this can affect employment law. Vriend was a lab coordinator at a religious college in Alberta fired for being gay. At that time, Alberta’s human rights law did not prohibit discrimination on the basis of sexual orientation, so Vriend was unable to file a human rights complaint against the college. The Supreme Court eventually found that the omission of sexual orientation from Alberta’s law was contrary to Section 15 of the Charter and ordered sexual orientation read into the law.6 Sexual orientation was eventually added to Alberta’s Human Rights Code as an enumerated ground on which discrimination is prohibited.

Second, the Charter can directly affect public sector employment relationships by limiting the behaviour of the government when it acts as an employer. For example, in 2008, the government of Saskatchewan enacted laws that allowed public sector employers to deem employees “essential workers” and bar them from participating in strikes. The Saskatchewan Federation of Labour asserted that this law interfered with workers’ freedom of association (as set out in s. 2(d) of the Charter). In 2015, the Supreme Court agreed with the federation, finding that the right to strike was a fundamental part of collective bargaining, and struck down the law.7

Governments have two ways to “get around” Charter limits when acting as legislators or employers. The first is to demonstrate that any limitation on a Charter right or freedom is “demonstrably justified in a free and democratic society” (s. 1). The second is for a government to use the “notwithstanding clause” (s. 33), which allows it temporarily to override some Charter rights and freedoms (ss. 2, 7–15).

When an individual worker or a group of workers thinks that the government has violated their Charter rights, they can challenge the law or government action in court. Such challenges are usually both expensive and lengthy. Normally, the worker(s) must live with the consequences of the law or action in the meantime. The Charter is further discussed in Chapter 10 because it has significant implications for the laws governing unionization and collective bargaining.

It is important to reiterate that the Charter applies only to the content of laws and government actions. The actions of private sector employers (and individuals) are regulated by provincial and territorial laws. These laws must comply with the Charter. In the Vriend case, it was Alberta’s human rights law, and therefore the Alberta government, and not the actions of the private college, which were subject to the Charter challenge.

Minimum Terms of Employment

All Canadian jurisdictions have enacted laws setting out minimum terms and conditions of employment. These laws are often called labour standards or employment standards and comprise some combination of acts, regulations, and other forms of rules (see Feature Box 2.2). These laws establish certain minimums that most employers must meet related to wages, hours of work, vacations, and other types of leaves. Although this floor of rights is often discussed as universal, some groups of employers and workers are excluded from some or all of the minimums set out in these acts (e.g., professionals such as doctors and industries such as agriculture).

Feature Box 2.2 Acts, Regulations, and Codes

The structure of employment laws can be a bit confusing. Each jurisdiction has its own amalgam of acts, regulations, policies, codes, and guidelines.

  • • An act is a federal, provincial, or territorial law that sets out the broad legal framework around an area of employment law. This legislation is passed by the legislature that has the authority to regulate work in the jurisdiction.
  • • A regulation typically sets out how the general principles of the act will be applied in specific circumstances. A regulation is authorized by the government cabinet and is easier to change than an act. Several regulations can flow from an act, each addressing a different facet of the act.
  • • Guidelines, codes, and policies are more specific rules about an area of law. They might or might not be legally enforceable, depending on what the act or regulation(s) of the jurisdiction permit, and are usually the easiest kind of rule for the government to amend.

The exact arrangement within each jurisdiction differs and can often be complicated. For example, in Alberta, the Employment Standards Code (which, confusingly, is an act) sets out most of the minimum entitlements and rules about employment, including a prohibition on employing children under the age of 15 during normal school hours. The Employment Standards Regulation contains additional rules that further restrict when and in which occupations individuals under 18 may be employed. The director of employment standards can also use powers granted under Subsections 52 and 54 of the Regulation to make policies further restricting which restaurant tasks a 13 or 14 year old is permitted to perform.

It is often necessary for HR practitioners to sort through fairly complex and cascading sets of statutory rules to understand fully what is permissible or required under what circumstances. Most governments have developed topic-specific fact sheets to address common questions. These sheets often provide a useful overview that can guide further research.

Employment standards legislation also establishes a process by which workers can enforce their rights against employers. This usually involves filing a complaint with the government department charged with enforcing the relevant law. A complaint typically triggers an investigation. This process is intended to resolve disputes more quickly and at lower cost to the worker than a lawsuit.

The rights and obligations set out by each jurisdiction vary, but typically they include setting a minimum wage that employers must pay. This minimum is usually expressed as an hourly rate (e.g., $15 per hour). Some jurisdictions stipulate different minimum wages based on workers’ age or industry. Governments typically also make rules that limit the deductions that employers can make from workers’ salaries (e.g., for cash register shortages or work uniform costs). Finally, governments typically stipulate the maximum duration of a pay period and set out requirements for employer record keeping. Collectively, these requirements are designed to limit economic exploitation and wage theft by employers (see Feature Box 2.3).

Feature Box 2.3 Wage Theft and State Enforcement

Wage theft occurs when employers fail to pay workers the compensation that they have earned. Overt wage theft includes employers not paying some or all of the wages owed (including overtime premiums) and failing to provide required rest breaks or paid leaves. There are also subtler forms of wage theft. Employers can make illegal deductions or utilize confusing or misleading bookkeeping structures to minimize their labour costs.8 For example, 22-year-old Brampton, Ontario, student Satinder Kaur Grewal recently won more than $16,000 in unpaid wages from her former restaurant employer, Chat Hut.9 The exact level of wage theft across Canada is unknown, but the practice appears to be widespread.

When workers are not paid what they are owed, they can file a complaint with the government. A complaint typically triggers an investigation by a government inspector. (Some jurisdictions also do random or targeted investigations to assess employer compliance, but they are much less common than complaint-driven investigations.) Sometimes an employer might voluntarily pay the stolen wages during an investigation. Other times an inspector might order the wages paid and, if still unpaid, engage the services of a collections company to get some or all of the money owed by the employer. In practice, inspectors sometimes negotiate a partial payment to resolve the issue, even if the worker is owed the full amount. It is unclear what proportion of owed wages is eventually recovered when a worker files a complaint.

One of the problems with complaint-driven enforcement of employment laws is that many workers are reluctant to complain for fear of (illegal) retaliation by their employers. Retaliation can be overt (e.g., firing a worker) or more subtle (e.g., assigning undesirable job tasks or shifts). The majority of wage theft complaints come from workers who have already quit their jobs. Workers whose employment is precarious or whose right to work in Canada is limited by their work permits are among the least likely to complain because of the potential consequences of doing so.

This analysis suggests a disconnection between the intention and the effect of Canada’s labour standards laws. The intention of these laws is to prevent and remedy wage theft. But operation of the system is such that relatively few complaints are made (because of the risks associated with doing so), and only a few valid complaints result in full restitution. Some critics of this system suggest that this enforcement gap incentivizes employers to engage in wage theft. That is, wage theft might be an intentional strategy that employers adopt to increase profits because they know that most workers will not report the wage theft and that the worst-case scenario for an employer is simply having to pay the owed wages.

The ineffectiveness of employment standards in preventing and remedying wage theft also raises the question of whether the state is truly a neutral referee. On the one hand, the government enacts laws that make employer wage theft illegal. On the other hand, the government enforcement system does not work well. One explanation of this discrepancy is that the government is interested in limiting class conflict. It does so by passing laws that say wage theft is bad and create the appearance that the government is on top of the issue, which keeps most workers happy and docile. In practice, though, the laws have many loopholes and are poorly enforced, which keeps employers happy. Keep this discrepancy in government behaviour and this possible explanation of it in mind as you read the rest of this chapter.

Governments also seek to set standards for hours of work. This can include setting a daily or weekly limit to the maximum hours of work, identifying minimum rest breaks during the working day and rest periods between shifts, and placing limits on changes to work schedules. These limits serve both to provide workers with adequate time to perform necessary social reproductive tasks (e.g., eating, going to the washroom, resting, managing a household) and to reduce the incidence of fatigue-related injuries.

Some jurisdictions allow employers to schedule workers to work longer than a normal work day or work week. When workers work overtime, employers must pay them an overtime premium. Overtime is often calculated as some multiple of regular pay (e.g., one and a half times the regular wage rate). The purpose of an overtime premium is to encourage employers to hire more workers (rather than just making their existing employees work harder) by attaching additional costs to overtime. Some jurisdictions allow employers and workers to agree to paid time off in lieu of overtime pay.

Labour standards legislation also normally outlines time that workers can be away from work, either with or without pay. This includes identifying statutory holidays (e.g., Canada Day, Labour Day) and annual paid vacations from work. Workers might also be entitled to other forms of job-protected paid or unpaid leave to attend to civic duties (e.g., jury duty, military leave) and personal or family obligations (e.g., parental, sick, compassionate care, and bereavement leaves). These laws can also limit the employment of minors.

Finally, employment standards laws can provide for temporary layoffs and set minimum notice periods for termination. As noted above, when an employer fails to provide a worker with the work promised, it is considered a termination under the common law. Employment standards laws allow employers to lay off workers temporarily. Temporary layoffs usually have a fixed maximum period, after which the layoff is deemed a termination. Employment standards also set out the minimum period of termination notice that an employer is required to provide. (Employers may also choose to provide pay in lieu of notice.) This minimum termination notice is not the same thing as reasonable notice under the common law. This difference and its implications are considered in detail in Chapter 9.

Work-Related Injury Prevention

All governments have enacted laws designed to prevent workplace injuries. Occupational health and safety (OHS) laws assume that injuries are preventable when employers identify and control workplace hazards. A workplace hazard is any source of potential injury or illness. This can include an object, process, context, person, or set of circumstances (see Feature Box 2.4). OHS laws can also set out specific rules for the control of certain hazards, require reporting of some kinds of workplace incidents, and empower government staff to inspect workplaces and respond to complaints. Finally, OHS laws also grant workers three safety rights.

  • • Right to know: Workers have a right to know about the hazards in their workplaces as well as about hazard control strategies.
  • • Right to participate: Workers have a right to participate in making their workplaces safer. This right is usually operationalized through joint health and safety committees, comprising an equal number of worker and employer representatives.
  • • Right to refuse: Workers can refuse work that they think is unsafe without fear of losing their jobs.

The existence of a right to refuse unsafe work tells us that, sometimes, employers choose not to control hazards. Relatively few workers exercise their right to refuse unsafe work, in part because of fear of retaliation from their employers.10

Feature Box 2.4 Categories of Workplace Hazards

Workplace hazards are generally divided into five broad categories.

  • • Physical hazards: A physical hazard involves a transfer of energy that results in an injury. For example, a worker who is struck by an object or falls off a ladder entails a transfer of energy causing an injury. Other examples include noise, vibration, temperature, electricity, atmospheric condition, and radiation.
  • • Ergonomic hazards: An ergonomic hazard arises when the physical arrangement of work causes strain on workers’ bodies. Poor desk fit and lighting as well as jobs that require repetitive motions or holding a single position for a long time are examples of ergonomic hazards.
  • • Chemical hazards: A chemical hazard causes harm to human tissue or interferes with normal physiological functioning. Such a hazard enters the body through respiration, skin absorption, ingestion, or cuts in the skin. Cleaning solutions are common chemical hazards. Fumes from building materials are a less obvious chemical hazard.
  • • Biological hazards: A biological hazard is an organism or a product of an organism (e.g., tissue, blood, feces) that harms human health. The three main types of organisms that give rise to biological hazards are bacteria, viruses, and fungi. Biological hazards enter our bodies through respiration, skin absorption, ingestion, and cuts in our skin.
  • • Psychosocial hazards: A psychosocial hazard is a social or psychological hazard that negatively affects a worker’s health. Harassment, bullying, and violence are easily visible psychosocial hazards in the workplace. Stress, fatigue, and overwork are less visible psychosocial hazards. Often the design of work tasks and processes can cause or intensify the stress and fatigue experienced by workers.11

Some hazards do not fit neatly into this typology. Working alone, for example, can increase exposure to workplace violence (because lone workers are easier targets). It can also intensify the consequences of other hazards because no one might be available to assist a worker who is injured or experiences a medical emergency.

Once a hazard has been identified, it must be controlled. Employers control a hazard when they take steps to eliminate or reduce the chance that it can result in an injury or illness. The hazards in a workplace can be identified through a process of hazard recognition, assessment, and control. Hazard recognition involves comprehensively identifying all of the hazards in a workplace. Typically, hazard recognition begins by considering the broad context of work (e.g., is it in a remote location? is it outdoors?). It then considers the specific context and tasks associated with the work. This process might include inspecting the workplace, talking with or observing workers, examining job descriptions and workplace records, and perhaps measuring or testing. In identifying hazards, it is useful to specify the hazard in detail (e.g., “benzene” rather than “workplace chemicals”), the type of hazard (e.g., chemical), and the injury or illness that it could cause (e.g., neurological problems, anemia, leukemia). In considering hazards, it is important to be mindful of how the male norm can influence what employers and workers identify as hazardous (see Feature Box 2.5).

Feature Box 2.5 Safety and the Male Norm

The male norm refers to often unconscious assumptions about workers’ behaviour or physiology based on the expectation that workers are average-sized, able-bodied men with a partner at home to handle social reproductive tasks. This assumption can be found through human resource management functions, including job design, performance management, and health and safety. One implication of the male norm is that HR decisions and policies can disadvantage workers who do not fit the implicit norm. The application of a seemingly neutral aerobic test that effectively precluded women from being firefighters in the opening vignette of this chapter is a good example of the male norm and its effect.

The male norm is present in health and safety. For example, occupational exposure limits—the level of exposure to chemical or biological or noise hazards considered safe—historically were set based on research on healthy, young men. This approach ignores physiological differences associated with gender, age, and health. Similarly, the design of industrial equipment and work processes historically was based on assumptions about the height and strength of an average (i.e., five-foot-nine, able-bodied, male) worker. Ignoring the systematic anatomical differences between men and women leads to women being exposed to hazardous lifting requirements or being provided with safety equipment (e.g., harnesses and respirators) or tools unsuited for their size and shape.12

The presence of the male norm argues for an intersectional analysis of workplace safety. Such an analysis can draw our attention not only to health and safety hazards but also to the differential health effects caused by job-design decisions. For example, precarious employment practices are more often experienced by workers who are women, of colour, or disabled. Since their employment is less subject to government regulation, these workers can experience greater levels of exposure to hazardous working conditions. And, if they are injured, then they are likely to have less access to employer-paid benefits to treat work-related injuries or to workers’ compensation to provide financial support when work-related injury or illness makes them unable to work.

This analysis suggests that organizations’ HR strategies can create or intensify workplace hazards. Furthermore, these hazards do not necessarily affect all employees equally. Identifying and controlling such hazards require HR practitioners to think about hazard identification more broadly than simply a quarterly workplace inspection for loose electrical cords, slippery floors, and rickety ladders.

Once hazards have been identified, it is useful to consider the risk posed by each hazard. Doing so allows us to understand the hazard better as well as to prioritize which hazard to control first. Risk is a function of three factors: probability, consequence, and exposure. Probability is the likelihood that a hazard will cause an incident. Consequence refers to the severity of injury or ill health that will result from an incident. Exposure refers to how frequently a worker is exposed to the hazard. Figure 2.2 shows a sample hazard assessment form that allows you roughly to quantify the risk of a hazard.

Finally, it is necessary to control a hazard. There are different ways to control hazards. As outlined in Feature Box 2.6, it is useful to think about these different controls as a hierarchy, with those controls at the top of the hierarchy being both the most effective and the most expensive. OHS legislation generally requires employers to adopt the most effective control (i.e., the highest control in the hierarchy) reasonably practicable to implement. The reasonably practicable test is met by taking suitable or rational precautions given the circumstances.

This figure shows a simplified risk assessment tool with three criteria, each scored on a scale of 1 to 4.

Figure 2.2 Simplified risk assessment tool

Feature Box 2.6 The Hierarchy of Controls

There are often several ways to control a hazard. For example, loose carpeting can pose a tripping hazard. An employer might control the hazard by placing an orange cone beside the loose carpet to alert workers to the hazard. Or the employer might glue the carpet back down or replace it. Placing a cone takes little effort but is not very effective since the hazard remains, and a worker could still trip over it. Regluing or replacing the carpet eliminates the hazard but comes at a higher cost. The effectiveness of various control strategies is outlined in the hierarchy of controls (see Figure 2.3).

This figure shows the hierarchy of controls arranged from most effective on top to least effective on the bottom.

Figure 2.3 The hierarchy of controls

The controls at the top of the hierarchy are both the most effective and typically the most expensive to implement. This reflects that elimination, substitution, and engineering controls often involve making significant changes to workplace processes. These controls also tend to increase employer costs by slowing or otherwise altering production methods.

In contrast, the controls at the bottom are both inexpensive and often ineffective. They are ineffective because the hazard remains in the workplace, and it is up to the worker to avoid it by following rules or wearing personal protective equipment (PPE). They are cheaper, though, because they require little change to how production is organized.

In Canada, workers, employers, and the government all play a role in injury prevention. All Canadian jurisdictions use the internal responsibility system (IRS) to structure their OHS laws. The IRS makes employers and workers jointly responsible for workplace safety and is premised on the beliefs that workers and employers have the most knowledge of hazards in their workplaces and that they share an interest in making those workplaces safer. Under the IRS, workers have an obligation to report hazards to their employers. The employers must then control the hazards, and the workers must comply with whatever controls the employer has put in place. This might entail complying with safe working procedures and wearing required PPE. Some workplaces will be required to have a joint health and safety committee in which employer and worker representatives meet to discuss OHS issues and recommend control strategies.

Workers can turn to the government to adjudicate disputes about whether a hazard has been adequately controlled or whether workers’ safety rights have been violated. The government also typically investigates serious injuries and fatalities and conducts inspections of workplaces to ensure compliance. Where unsafe working conditions are found, government inspectors can issue stop-work orders until the hazard is controlled. In some jurisdictions, inspectors can also issue financial penalties, and all jurisdictions provide for the prosecution of violators, although prosecution usually occurs only when there has been a serious injury or fatality.

Although OHS laws and practices undoubtedly mean that today’s workplaces are safer than they were 100 years ago, OHS is often criticized for being unsuccessful in preventing large numbers of injuries and fatalities. Each year in Canada, the workers’ compensation board (WCB) reports approximately 1,000 work-related fatalities and 264,000 serious injuries.13 Although significant, these numbers include only injuries reported to and accepted for compensation by WCB systems. If you add unreported injuries and injuries that do not have to be reported, then the true number is about 10 times the number of serious injuries reported.14 Ten thousand work-related deaths and millions of work-related injuries provide strong evidence that contemporary OHS is not particularly effective at preventing workplace deaths and injuries. An important factor in high injury rates is low employer compliance with even the most basic OHS obligations.15

Governments acknowledge that non-compliance occurs. They grant workers the right to refuse unsafe work, and they hire inspectors precisely because they know that employers sometimes fail to control hazards. One explanation of high rates of non-compliance and injury is that employers and workers do not actually share an interest in safer workplaces. Rather, employers seek to prevent injuries to the degree that doing so is cost effective (which reflects the operation of the profit imperative). In contrast, workers usually seek the highest level of safety possible (although sometimes they disregard safety measures because of forgetfulness, time pressure, or convenience). This dispute over how safe work should be reflects the broader divergence of worker and employer interests in capitalist economies over who will capture the surplus value of labour.

In theory, the state is supposed to step in and ensure that employers comply with legislative minimums. In practice, inspection programs are underfunded and often have intervals (the time between inspections of any one workplace) measured in decades. And the consequences of non-compliance are low (generally a stop-work order is issued until a hazard is remedied). Even employers who seriously injure or kill a worker are unlikely to receive a financial penalty.

Work-Related Injury Compensation

All jurisdictions operate workers’ compensation systems that provide workers or their families with wage-loss and other benefits when they are injured or killed on the job. Each jurisdiction’s system is operated by an independent government agency called a workers’ compensation board, although the exact name varies among provinces and territories. Workers’ compensation legislation typically empowers WCBs to set policies addressing claims acceptance and benefit levels. Although these policies vary among jurisdictions, all WCBs operate according to the Meredith principles (see Feature Box 2.7).

Feature Box 2.7 The Meredith Principles

William Meredith was an Ontario politician and judge appointed in 1910 to investigate the compensation of workplace injuries. This inquiry was designed in part to address the growing social instability caused by high rates of injury and the difficulty that workers had in securing compensation. In 1913, he tabled his report and proposed a system of workers’ compensation based on five Meredith principles.

  • • No fault compensation: Compensation is due without regard for who was at fault for the injury. Workers cannot sue their employers for damages.
  • • Security of benefits: An “accident fund” is established by the WCB to ensure that compensation is paid.
  • • Collective liability: Employers pay for the cost of operating the system.
  • • Independent administration: Compensation is administered by an independent agency.
  • • Exclusive jurisdiction: All compensation claims are directed to the WCB, the final adjudicator of the system.16

In short, workers’ compensation offered workers immediate, predictable, and stable wage-loss benefits. In exchange, workers gave up their right to sue employers for their injuries. Over time, the range of workers covered by workers’ compensation, the types of injuries eligible for compensation, and the range of benefits offered have all increased.17

Workers, employers, and doctors are required to report certain injuries to the WCB, including those that require time away from work, modified duties, or medical treatment and those that resulted in fatalities. The WCB then applies the arises and occurs test to whether the injury arose from and occurred during the course of employment. If so, then the worker is entitled to access a range of benefits, including the following.

  • • Wage loss and fatality benefits: Workers can receive financial compensation for wages lost because of injuries. WCBs may limit the rate or total level of compensation. Dependants can also receive pensions when workers die on the job.
  • • Health-care costs: WCBs pay for the costs of treating injuries, including reimbursing the public health system or private providers for treatment costs.
  • • Vocational rehabilitation: Workers can receive assistance preparing for or finding post-injury employment as well as modifications to workplaces and homes.

In keeping with the Meredith principles, workers’ compensation is funded by employer premiums. They are normally calculated based on an employer’s payroll (e.g., a premium of $1.15 for every $100 of wages paid). These premiums can vary between industry sectors. Industries with higher claim costs have a higher premium rate than do industries with lower claim costs. Some jurisdictions have also established experience-rating systems. Experience rating adjusts an organization’s premiums up or down based on the organization’s injury claim costs. Experience rating is intended to incentivize employers to operate more safely. In practice, some organizations reduce claim costs by (illegally) pressuring workers not to report injuries.18

WCBs also encourage employers to return injured workers to work as soon as possible. This might require an employer to provide a worker with modified duties consistent with any injury-related job restrictions. Return-to-work programs assume that work can be rehabilitative and that returning to work quickly reduces the chance that workers will become permanently unable to work. The evidence supporting these beliefs is mixed. Furthermore, there is evidence that employers sometimes fail to provide a meaningful or safe return to work.19

Discrimination, Harassment, and Equity

All jurisdictions have established human rights laws that prohibit discrimination based on personal characteristics irrelevant to a worker’s ability to perform a job. This prohibition on discrimination operates throughout the employment process, including pre-employment activities such as recruitment and selection. Workers who believe that they have been discriminated against can file a complaint with their jurisdiction’s human rights tribunal or commission. Human rights commissions have broad remedial powers, including awarding damages and directing reinstatement.

There are two main types of discrimination. Direct discrimination occurs when an organization applies different rules or standards to workers. Historically, direct discrimination was common (e.g., barring women or non-white applicants or paying them lower wages). Over time, social approbation of discrimination has reduced (but not eliminated) direct discrimination. Indirect discrimination occurs when a seemingly neutral rule has an adverse effect on some workers based on a personal attribute. The fitness rule applied to Tawney Meiorin in the opening vignette is an example of indirect discrimination: a seemingly neutral rule reduced the chances of women becoming forest firefighters because of innate physiological differences.

When a human rights complaint is filed, an investigator typically asks two questions.

  1. 1. Does the behaviour discriminate against a worker on a prohibited ground?
  2. 2. If so, then is the discrimination permitted through a statutory exemption or defence?

Not all discrimination is unlawful. The list of grounds on which discrimination is prohibited differs among jurisdictions and has expanded over time as different bases of discrimination have become regarded as wrongful (see Feature Box 2.1). That said, not all forms of discrimination are prohibited. Some jurisdictions specifically allow workers under the age of 18 to be paid less than other workers. In this case, though paying a minor is discriminatory, it is permissible discrimination specifically allowed by a legislature.

Discrimination can also be permissible in certain circumstances. As noted in the opening vignette, a bona fide occupational requirement is rationally connected to the job, adopted in good faith, and reasonably necessary to accomplish a legitimate work-related purpose. For example, requiring a delivery driver to possess a driver’s licence indirectly discriminates against workers who cannot get a licence because of a visual impairment. Such a requirement, though discriminatory, is permissible because being legally able to drive is a BFOR for a delivery driver.

Human rights legislation also places on employers a duty to accommodate. It is a requirement to remove discriminatory barriers to employment. This duty can require employers to modify work duties, schedules, and the physical environment to allow workers to participate equally in work. The duty to accommodate is often invoked when health issues or disabilities limit workers’ abilities to perform some or all of their job duties. But the duty to accommodate is broad and can include accommodating religious observances, addictions, and family responsibilities (see Feature Box 2.8).

Feature Box 2.8 Accommodating Child-Care Obligations

Many workers are responsible for the care of children. Sometimes child-care demands can conflict with work obligations. Although family status has long been a protected ground, employers historically had little duty to accommodate the child-care needs of their workers. Juggling employment and child care is one factor that disproportionately affects the careers and lifetime earnings of women.

In 2015, the Federal Court of Appeal found that Canadian Border Services was obligated to accommodate the child-care needs of an employee. The court set out a fourfold test to determine when an employer was obligated to accommodate child care.

  • • The child must be under the care and supervision of the worker.
  • • The child-care obligation must engage a legal responsibility for the child (it cannot simply be a matter of personal choice).
  • • The employee must make a reasonable effort to find child care.
  • • The workplace rule must meaningfully interfere with the fulfillment of the child-care obligation.20

If these conditions are met, then the employer must accommodate up to the point of undue hardship. Subsequently, some provincial human rights tribunals have adopted different tests for when an organization must accommodate workers’ child-care obligations. Commissions in Alberta and Ontario, for example, assert that employees do not need to exhaust child-care options (the third test in the federal case) to trigger a duty to accommodate. Rather, that duty is triggered simply by a worker who has protected status and is meaningfully and adversely affected by a workplace rule.

A request by a worker to accommodate child-care needs can bring together some of the key tensions that exist in an employment relationship. For example, accommodating child-care requirements can entail additional costs for an employer, thereby lowering profitability. Refusing accommodation shifts costs onto the worker (most likely a woman) in terms of forgone income. Other factors—such as the location of work and thus the availability of informal (e.g., family and community) and formal (i.e., paid) child care—will influence how significant the resulting impact will be on the worker. Factors such as employment precarity will affect a worker’s capacity to resist this employer behaviour.

Organizational responses to the COVID-19 pandemic, whereby large numbers of employees were moved into home offices and provided with alternative working hours, suggest that, when suitably motivated, some organizations are much more able to accommodate working from home than they previously have been. HR practitioners should be mindful of how organizations can accommodate workers coupled with the general trend in the case law toward an increasing expectation of accommodation. Even when an organization does not face legal and financial consequences for failing to accommodate child-care needs, it can face profound reputational harm.

An organization’s duty to accommodate ends when the required accommodation meets the threshold of undue hardship, a variable and multi-faceted standard that assesses the point at which further accommodation would pose an unnecessarily demanding level of hardship on an employer. Factors that can influence when further accommodation constitutes undue hardship include organizational size (bigger employers have a greater capacity to accommodate than smaller employers), safety, organizational structure, cost, and morale.

Human rights legislation (and sometimes OHS legislation) also place an obligation on an employer to ensure that workers do not experience harassment, including sexual harassment. Harassment is generally defined as a course of vexatious comments or conduct that a reasonable person would find unwelcome. In this context, vexatious means words or actions that are annoying, distressing, or irritating to the recipient. Although a course of conduct or comments usually requires multiple incidents to have occurred, a single serious incident can be enough to constitute harassment.21 Harassment with a sexual element is often called sexual harassment, which denigrates someone on the basis of their sex and includes sexual comments, leering, invading one’s space, requirements to dress in a sexualized way, and demands for sexual favours. Sexual harassment can overlap with or be distinct from gender-based harassment, which targets an individual based upon traditional gender norms.

Employers can also be subject to legislated employment and pay equity requirements. Employment equity laws require employers in the federal jurisdiction to take proactive steps to increase the representation of women, persons with disabilities, visible minorities, and Indigenous persons (although the act uses the dated and narrower term Aboriginal persons). Employers in all jurisdictions have an obligation under legislation to avoid discrimination in wages on the basis of gender. This requirement mandates pay equality (i.e., that men and women be paid the same for performing the same job in the same organization). Some jurisdictions have also enacted pay equity legislation. Pay equity requires that men and women be paid the same for performing jobs of comparable value in the same organization. This requirement is not uniform across the provinces and territories. Pay equity also requires decisions about which jobs are comparable, and such subjectivity often arouses controversy and resistance.

As an example, the federal Pay Equity Act requires federally regulated employers with more than 10 employees to develop and maintain a pay equity plan. To develop the plan, they must identify job classes for positions in the workplace and determine whether a job class is predominantly male, female, or gender neutral. They then must determine the value of the work performed by each predominantly male or female class, calculate the compensation in each class, and compare compensation between the classes doing work of equal value. This process identifies female-dominated job classes that are paid inequitably. Most importantly, the law requires that the employer increase compensation for those classes over a three- to five-year period to eliminate the inequity. A pay equity commissioner administers and enforces the act.

Information Privacy

HR practitioners are often required to collect, store, use, and share personal information on workers. Personal information is any information about an identifiable individual. An organization possesses personal information about a worker in order to administer the employment relationship, such as a worker’s legal name, address, phone number, social insurance number, dependants, and qualifications or credentials. Organizations can also collect information on a worker through various forms of electronic surveillance in the workplace (e.g., video cameras, keystroke logs) and as part of the performance assessment process. Organizations can also possess information on job applicants in the form of resumés and interview notes.

Broadly speaking, organizations are permitted to collect, store, and disclose personal information when that information is necessary to establish, manage, or terminate an employment relationship. It is difficult to be more specific because the law on workplace privacy is highly variable among the 14 jurisdictions. The common law on privacy is evolving, and only some jurisdictions have enacted privacy legislation relevant to the workplace. Where there are laws, the specifics can differ between public sector and private sector employers. Furthermore, issues of information privacy can spill over into human rights issues, such as when an organization collects seemingly necessary demographic information and that information is then used to discriminate against an employee on a protected ground.22

It is important for HR practitioners to ensure that the collection, storage, and disclosure of personal information is compliant with the rules in their jurisdiction. Managing how an organization handles personal information tends to be particularly important when recruiting and selecting new employees, when a worker requires a workplace accommodation, and when an employment relationship comes to an end. It is also important to be mindful of the collection, storage, and disclosure of personal information on non-employees (e.g., customers, clients, business partners) when an organization is designing jobs. The chapters that follow take up relevant aspects of information privacy.

Conclusion

An important role played by human resource practitioners is ensuring that organizations are compliant with the many rules to which they are subject. The laws regulating employment are an important set of rules imposed on organizations by the state. These rules exist, in part, to make employment relationships more predictable for workers and employers. But these rules also exist to address employers’ profit-driven tendency, in the absence of rules, to organize work in ways that result in social problems, such as injury, economic exploitation, and discrimination. These problems can be politically and socially destabilizing enough to warrant government intervention.

Although it is tempting to frame governments as referees between the interests of labour and those of capital, this might overstate the neutrality of the state and the effectiveness of the system. Enforcing the common law requires expensive litigation out of reach of most workers (particularly low-wage workers). Government enforcement of statutory laws is generally weak and can even incentivize employers to break those laws. This suggests that the state is interested in benefiting from the appearance of being a neutral party, but in fact it allows employers significant latitude to operate until and unless their behaviour generates social disruption.

In theory, non-compliance with these laws can generate legal consequences for employers. In practice, the real risks of non-compliance flow from the possibility of reputational harm. Consider the 2013 case of Strange City, a tattoo parlour in Edmonton. The owner had been paying workers their wages with cheques that it had insufficient funds to cover (thus, the cheques “bounced”). The staff responded by seeking employment elsewhere and then picketing walk-in traffic at Strange City. They would tell potential customers about the poor treatment of staff and hand out discount coupons for other local tattoo parlours. Strange City went out of business in a few months.

The effectiveness of this worker pushback reflects that laws also serve a normative function. That is, they set out which employer conduct is considered acceptable and which is considered unacceptable. Organizations that violate the law might well evade legal consequences. But workers might still be able to apply powerful pressure on employers, particularly if the workers are prepared to risk discipline or termination. It often falls to human resource practitioners to help organizational leaders see the full range of potential consequences that employment decisions entail.

Exercises

Key Terms

Define the following terms.

  • → Act
  • → Arises and occurs test
  • → Bona fide occupational requirement
  • → Charter of Rights and Freedoms
  • → Common law
  • → Control
  • → Direct discrimination
  • → Duty to accommodate
  • → Employment standards
  • → Experience rating
  • → Floor of rights
  • → Harassment
  • → Hazard
  • → Hazard recognition, assessment, and control
  • → Hierarchy of controls
  • → Human rights
  • → Indirect discrimination
  • → Internal responsibility system
  • → Joint health and safety committee
  • → Master and servant tradition
  • → Meredith principles
  • → Minimum termination notice
  • → Modified duties
  • → Occupational exposure limit
  • → Overtime
  • → Pay equality
  • → Pay equity
  • → Personal information
  • → Personal protective equipment
  • → Premiums
  • → Reasonably practicable
  • → Regulation
  • → Sexual harassment
  • → Statutory law
  • → Undue hardship
  • → Wage theft
  • → Workers’ compensation
  • → Workers’ compensation board

Activity

Locate your jurisdiction’s laws and answer the following questions.

  • → What are the minimum wage(s) and overtime premiums?
  • → What are prohibited grounds for discrimination?
  • → What requirement is there for pay equity?
  • → In which circumstances can a worker refuse unsafe work?
  • → To what degree are wages lost because of injury replaced by the WCB?

Discussion Questions

Discuss the following topics.

  • → How does common law both benefit and harm workers?
  • → Why have governments enacted statutory laws?
  • → Which factors explain the high level of workplace injury in Canada?
  • → Why would governments not effectively enforce statutory laws?
  • → Why is discrimination sometimes permissible in the workplace?

Self-reflection Questions

Write self-reflections of 200 to 500 words on the following topics.

  • → Think about a time when you or someone you know was underpaid by an employer. How did you (or that person) seek to resolve the situation, and why did you choose that option? Which other options existed, and why did you not select them?
  • → If your employer is temporarily unable to provide you with work, would you want to be permanently terminated or temporarily laid off? Why would you choose this option, and which costs does it entail for you and your employer? How might your answer differ if you were the employer in this situation?
  • → Think about an uncontrolled hazard that you have seen in a workplace. How did this hazard endanger the workers? Which controls could the employer have implemented to address the situation? Why might the employer not have controlled the hazard?
  • → Imagine that you are an employer and that one of your workers is frequently off work because child care is unreliable. What are the likely impacts of this absenteeism? How might you try to resolve this problem? Why did you choose the strategies that you did?
Next Chapter
Three: Workflow, Job Analysis, and Job Design
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