Employer Obligations Under Bill 96 An Act respecting French, the official and common language of Québec
On May 24, 2022, Bill 96, An Act respecting French, the official and common language of Québec (“Bill 96”), which amends the Charter of the French Language (the “Charter”), was passed by the Quebec National Assembly. With the aim of ensuring the predominance of French in Quebec workplaces, Bill 96 increases French language obligations in the workplace. Most of the new and enhanced workplace obligations under Bill 96 came into force on June 1, 2022.
Below are some of the key changes under Bill 96 impacting employers in Quebec. This includes the changes to francization requirements under Bill 96, as well as the heightened powers of the Office Québécois de la langue française (the “Office”) and the new applicable sanctions for non-compliance.
Note that any reference to the English language also refers to any language other than French.
EMPLOYMENT SPECIFIC OBLIGATIONS
Employment Documentation and Written Communications to Employees:[i] Prior to Bill 96, the Charter already required employers to provide written communications to employees in French.[ii] Bill 96 strengthens this obligation by clarifying existing requirements and specifying additional documents that must be provided in French. Most of the items below are not new and were already part of employers’ obligations.
Employers must provide the following documentation and communication in French[iii]:
- Offers of employment, transfer, or promotion[iv]. In our opinion, a simple solution is to provide bilingual documents.
- Individual employment contracts[v]. In addition, individual employment contracts that are “contracts of adhesion” (i.e. contracts in which the content is mostly not negotiable, except for the compensation) must be drafted and presented in French.[vi] In our opinion, a simple solution is to provide a bilingual employment agreement, also known as a two-column version.
- Written communications to staff or group of employees, unless the employee has requested that communications be in English[vii]. In our opinion, a simple solution is to provide bilingual communications to groups of employees.
- Documents relating to conditions of employment (i.e. employment policies, handbook, bonus and commission plans, etc.)[viii].
- Training documents produced for staff[ix].
- Group agreements[x].
Also, where employment application forms, documents relating to working conditions, and training documents are available in English, their French versions must be available on terms that are at least as favourable[xi]. In other words, the French version must be as complete and as accessible as the English version.
Employer obligations in recruitment:[xii] Employers are prohibited from requiring the knowledge of English in the recruitment process, unless the employer demonstrates (1) that the performance of the duty requires it, and (2) that the employer took all reasonable means to avoid imposing such a requirement.[xiii] Employers will be deemed to have taken reasonable means if they: (a) assessed the actual language needs associated with the duties;[xiv] (b) ensured that the existing staff members with knowledge of the required language could not fulfill these duties;[xv] (c) restricted as much as possible the positions and duties requiring knowledge of another language.[xvi] The reasonable means requirement, however, must not be interpreted in a way as to impose on an employer an unreasonable reorganization of its business.[xvii]
Bill 96 also creates new obligations for all employers in relation to the publishing of recruitment-related documents. Where an offer to fill a position through recruitment, transfer, or promotion is also published in English, the French and English versions of the offer must be published simultaneously, using transmission means of the same nature, and reaching a target public of a proportionally comparable size.[xviii]
Moreover, job postings for positions that require knowledge of a language other than French must include the reasons justifying this requirement.[xix]. Of course, there is no requirement to include language requirements in job postings.
Employers' Obligations Regarding Discrimination and Harassment:[xx] Bill 96 specifies that employees have a right not to be discriminated against or harassed because they do not have knowledge of another language, or because they have exercised a right under the Charter. While the right to a workplace free of discrimination and harassment existed by virtue of other legislation such as the Charter of Human Rights and Freedoms and other related human rights legislation, Bill 96 reiterates this right and imposes an additional obligation on employers to take all reasonable measures to prevent and protect employees against discrimination or harassment in the workplace based on the French language.[xxi]
Prohibition on the Imposition of Sanctions and Reprisals Against Employees:[xxii] Prior to Bill 96, the Charter prohibited employers from dismissing, laying off, demoting, or transferring an employee for the sole reason that the employee is exclusively French-speaking or does not have sufficient knowledge of a language other than French. Bill 96 maintains this prohibition, and adds a prohibition against taking reprisals or imposing other penalties for that same reason.[xxiii]
More specifically, employers are prohibited from dismissing, laying off, demoting or transferring an employee, or taking reprisals or imposing any other penalty on a staff member for the reasons that follow:
- Because an employee has demanded a right in relation to the language of work;[xxiv]
- To deter an employee from exercising a right in relation to the language of work;[xxv]
- Because an employee does not have knowledge or a specific level of knowledge of English, where the performance of the duty does not require it;[xxvi]
- Because an employee has taken part in meetings of, or carried out tasks for, a francization committee or subcommittee created by that committee;[xxvii]
- To induce an employee to endorse a francization program or documentation, or to dissuade them from doing so;[xxviii]
- Because an employee has, in good faith, communicated information to the Office or cooperated in an investigation conducted in the context of a breach of the Charter.[xxix]
OBLIGATIONS RELATING TO THE FRANCIZATION OF ENTERPRISES
Application of Francization to Enterprises with 25 to 49 Employees:[xxx] While the francization requirements under the Charter previously applied only to enterprises with 50 employees or more, under Bill 96, companies with 25 to 49 employees in Quebec are now subject to the francization process.[xxxi] Accordingly, employers with 25 or more employees will be required to register with the Office and receive certification attesting that the use of French is generalized in their entire workplace.[xxxii]
Francization Committee and Related Obligations:[xxxiii]
- An enterprise employing 100 persons or more was already required to form a francization committee.
- Under Bill 96, the Office may now order an enterprise employing fewer than 100 persons to form a francization committee if the Office deems that the use of French is not generalized at all levels of the enterprise.[xxxiv]
- As per the relevant provisions of the Charter prior to Bill 96, the francization committee must meet every six months. Bill 96 adds that minutes must be drafted for each meeting, signed by each committee member, and sent to the management of the enterprise as well as the Office.[xxxv]
- Bill 96 adds to the already existing role and responsibilities of the francization committee. The committee must:
- designate a representative to the Office;
- analyze the language situation and draft a report;
- see to the development and implementation of the francization program, and, where necessary, see to the drafting of a report on the program;
- at the request of the management of the enterprise, give its opinion on the employer's practice of requiring knowledge of a language other than French and on the means taken to avoid imposing such requirements.
- Employers are required to submit reports to the Office on the implementation of the francization program every 12 months, and to disseminate the reports to their staff.[xxxvi] Employers must also submit to the Office every three years, a report on the progression of the use of French within their enterprise. If the Office deems that the use of French is not generalized, the Office will order the enterprise to develop and implement an action plan to remedy the situation. Employers will have two months to develop the action plan.
- Employers are still required to provide the Office with a list of the members of the francization committee and subcommittee.[xxxvii] Bill 96 adds to this requirement an obligation on employers to disseminate the list of members among its staff, through signs and posters or other means appropriate to ensure the dissemination of the list.[xxxviii]
- Under Bill 96, management must, after adopting the francization program or approving other francization-related documents, have every member of the francization committee who endorses the program or documents sign them.[xxxix] Employers may not take reprisals or impose other sanctions solely to induce a person to endorse such a document or to dissuade them from endorsing it.[xl]
SANCTIONS, COMPLAINT MECHANISMS AND ENFORCEMENT MECHANISMS
Complaint Mechanism for Victims of a Prohibited Practice:[xli] Bill 96 sets out a new complaint mechanism for employees who wish to assert their rights under the Charter. Employees who believe they are a victim of a prohibited practice under the Charter may file a complaint with the Commission des normes, de l’équité, de la santé et de la sécurity du travail (CNESST) within 45 days after the occurrence of the practice in question.[xlii] If the parties are unable to reach a settlement, the complaint must be referred to the Tribunal administratif du travail (i.e. Quebec Labour Board), for adjudication.[xliii]
Administrative and penal sanctions: If the Office becomes aware of a failure to comply with the Charter, the Office may, under section 177, issue an order directing the person responsible for the failure either to comply with law or to cease contravening it within a specific timeframe (an “Order”).
Failure to comply with the Charter’s requirements despite an Order could lead to an administrative sanction or other disciplinary measure[xliv], including the suspension or revocation of the certificate of francization.
Moreover, anyone who violates an Order is liable to penal sanctions or fines[xlv].
Fines:[xlvi] Bill 96 increases the fines applicable for non-compliance offences. Fines now range from $3,000 to $30,000 for employers.[xlvii] Fines will double for a second offence and triple for subsequent offences.[xlviii] If an offence continues for more than one day, it will be considered a separate offence and the fines will accumulate for each day that it persists.[xlix]
Directors and officers who commit an offence under the Charter will be subject to fines ranging from $1,400 to $14,000.[l] Bill 96 also creates a presumption of liability for directors. Where an offence is committed by a legal person, or an agent, mandatary or employee of a legal person, of a partnership, or of an association without legal personality, directors are presumed to have committed the offence unless it is established that they exercised due diligence, taking all necessary precautions to prevent the offence.[li]
An individual who divulges false information to the Office when making a disclosure of non-compliance will be liable to a fine of $2,000 to $20,000 in the case of a natural person or, in any other case, to a fine of $10,000 to 250,000.[lii] The same fines are applicable if an enterprise takes a reprisal against a person who, in good faith, makes a disclosure to the Office or cooperates in an investigation.[liii]
Employers in Quebec (including their board of directors) must review their current employment practices to ensure that they are meeting the old and new enhanced requirements introduced by Bill 96. This includes:
- Establishing an internal written communication plan complying with French language requirements for group communications
- Considering a “language of preference” tool for one-on-one communications with candidates and employees
- Translating contracts, offers, and other employment-related documentation (i.e. bilingual versions are recommended)
- Reviewing job postings, job descriptions, and job requirements from a language standpoint (i.e. bilingual versions are recommended)
- For employers with 25 to 49 employees, reviewing carefully and implementing the new francization obligations
- For employers with 100 employees and more:
- Reviewing and updating the francization committee’s composition and functions
- Posting internally the list of the committee members and of its designated representatives to the Office
In respect of the new requirements to translate some of your existing documentation, MT>Version, a division of McCarthy Tétrault, offers high quality legal translation services by leveraging highly qualified in-house resources and utilizing innovative solutions, including proprietary machine translation technology, to meet your business translation objectives and timelines. MT>Version will work with you to provide clear benefits in terms of cost and deadlines, all while delivering peace of mind.
For more information on Bill 96, please do not hesitate to contact a member of our National Labour & Employment Group.
[i] Entry into force: June 1, 2022. However, transitional provisions apply for the translation of contracts, employment application forms, documents relating to conditions of employment and training documents, and group agreements. Employees have until June 1, 2023, to request, if they wish to do so, that their contract signed in English prior to June 1, 2022, be translated to French. If employers receive such a request, they must translate the contract in a timely manner. Note that employers are not required to translate fixed-term contracts of employment that expire before June 1, 2024. If employment application forms, documents relating to conditions of employment, and training documents were provided only in English prior to June 1, 2022, Employers have 12 months to make the French versions of these documents available (June 1, 2023). Group agreements drafted in English and entered into before June 1, 2022, must be translated by June 1, 2023, unless the agreement expires before June 1, 2024.
[ii] Charter, section 41.
[iii] Charter, section 41.
[iv] Charter, section 41(1).
[v] Charter, section 41(2).
[vi] Charter, section 41(2).
[vii] Charter, section 41(3).
[viii] Charter, section 41(4)(b).
[ix] Charter, section 41(4)(c).
[x] Charter, section 43 al 2. See also Charter, section 40.3(3) for the definition of a group agreement (A “group agreement” is an agreement, other than a collective labour agreement, that is entered into by an association or other group empowered by an Act to negotiate the agreement and that, under that Act, applies even to persons who are not members of the association or other group).
[xi] Charter, section 41(4).
[xii] Entry into force: June 1, 2022.
[xiii] Charter, section 46.
[xiv] Charter, section 46.1(1).
[xv] Charter, section 46.1(2).
[xvi] Charter, section 46.1(3).
[xvii] Charter, section 46.1 al 2.
[xviii] Charter, section 42.
[xix] Charter, section 46.
[xx] Entry into force: June 1, 2022.
[xxi] Charter, section 45.1.
[xxii] Entry into force: June 1, 2022
[xxiii] Charter, section 45.
[xxiv] Charter, section 45(1).
[xxv] Charter, section 45(2)
[xxvi] Charter, 45(3).
[xxvii] Charter, section 45(4).
[xxviii] Charter, section 45(5).
[xxix] Charter, section 45(6).
[xxx] Entry into force: June 1, 2025.
[xxxi] Charter, section 139.
[xxxii] Charter, section 139.
[xxxiii] Entry into force: June 1, 2022.
[xxxiv] Charter, section 136.
[xxxv] Charter, section 138.3.
[xxxvi] Charter, section 143.
[xxxvii] Charter, section 138.
[xxxviii] Charter, section 138.
[xxxix] Charter, section 138.2.
[xl] Charter, section 138.2.
[xli] Entry into force: June 1, 2022.
[xlii] Charter, section 47, and 47.4.
[xliii] Charter, section 47.2.
[xliv] Charter, sections 204.28 and following
[xlv] Charter, sections 205 and following
[xlvi] Entry into force: June 1, 2022
[xlvii] Charter, section 205.
[xlviii] Charter, section 206.
[xlix] Charter, section 208.
[l] Charter, section 207.
[li] Charter, section 208.4.2.
[lii] Charter, section 205.1.
[liii] Charter, section 165.24.