This post is a follow-up to two initiatives taken by our Employment and Labour Group regarding Bill 96, as well as the post published by our firm regarding the business impacts of Bill 96, which is available here.
On May 24, 2022, the National Assembly of Québec passed An Act respecting French, the official and common language of Québec (commonly known as “Bill 96”), which is amending the Charter of the French Language (the “Charter”) by introducing new measures aimed at ensuring the predominance of French in the workplace. Please note that most of the amendments presented in this post came into force on June 1, 2022, the date Bill 96 received Royal Assent. However, some will come into force at a later date.
An overview of the key changes is presented below. We will also examine the new powers of the Office Québécois de la langue française (the “Office”) with respect to investigation and inspection, as well as the new applicable fines in case of an offence under the Charter.
Communications to Employees
Bill 96 clarifies the types of French documentation that an employer is required to provide to its employees.
The Charter already states that an employer must provide communications to its employees in French, as well as offers of employment or promotion. However, Bill 96 explicitly extends this obligation to the following elements:
- Individual employment contracts. On this point, Bill 96 provides that the contract may, however, be drafted in another language if the parties expressly consent, unless it is an adhesion contract. In that case, in order for the contract to have a binding effect, the parties will have to examine the French version of the contract beforehand and expressly consent to be bound by the non-French version of the contract;
- Offers of transfer;
- Written communications to the staff or an employee, including those following the termination of the employment relationship. Please note that the employer may communicate in writing with an employee in a language other than French if the employee made a specific request to that effect;
- Employment application forms;
- Documents relating to conditions of employment; and
- Training documents created for the employees.
Furthermore, it should be noted that application forms, documents relating to working conditions and training documents shall also be available in conditions at least as favourable as any other version in another language.
These new requirements came into force on June 1, 2022. However, all individual employment contracts entered into before that date which are drafted in a language other than French will have to be translated in a timely manner, provided that the concerned employees request the translation from their employer by June 1, 2023. Employers will not be required to translate fixed-term employment contracts that end no later than June 1, 2024. In addition, employers will have until June 1, 2023 to make available a French version of application forms, documents relating to working conditions and training documents for employees to the extent that these documents were not available in French prior to the coming into force of Bill 96.
Bill 96 also adds new requirements regarding the dissemination of job offers. From now on, when a job offer will be posted by an employer in a language other than French for the purpose of filling a position (including by recruitment, hiring, transfer or promotion), the employer will have to ensure that both the French and English versions of the offer be disseminated simultaneously and by the same means of transmission and reaching a targeted audience of comparable size.
Furthermore, if an employer wishes to require knowledge or a specific level of knowledge of a language other than French to be eligible for a position, the employer must indicate the reasons justifying this requirement at the time of the dissemination of the job offer for the position.
These new requirements came into force on June 1, 2022.
Specific Knowledge of a Language Other than French
The Charter already provides that an employer cannot require specific knowledge of a language other than French, unless such knowledge is necessary for the performance of the duties of the position. However, Bill 96 imposes an additional burden on the employer by requiring that the employer must have taken all reasonable steps beforehand to avoid imposing such a requirement.
In this regard, Bill 96 provides that an employer will be deemed to not have taken all reasonable steps if it has not met one or more of the following three conditions before imposing such a requirement:
- Conduct an assessment to determine the language needs associated with the duties to be performed;
- Ensure that the knowledge of another language already required from other employees was insufficient for the performance of this employee’s duties; and
- Restrict as much as possible the number of positions involving duties whose performance requires knowledge or a specific level of knowledge of a language other than French.
Bill 96 indicates, however, that an employer will not have to conduct an unreasonable reorganization of its business to meet these conditions.
Should an employer not be able to make this demonstration, the requirement to have knowledge, or a specific level of knowledge, of a language other than French will be considered a prohibited practice under the Charter, which can generate a claim in damages.
Read more about Bill 96 and its effects on the Québec’s employment law and labour market on the Stikeman Elliott website here.
Patrick Essiminy is a partner and Head of the Montréal office’s Employment & Labour Group. His practice focuses on all areas of employment and labour law, for both provincially and federally regulated companies.