MANAGING AN AGING WORKFORCE William M. LeMay October 9, 2013
Agenda The End of Mandatory Retirement Benefits Implications Performance Management Retirement Discussions Retirement Incentives Bona Fide Occupational Requirements
The End of Mandatory Retirement Repeal of Age Maximums in OHRC- 2006 CHRA- has no Age Maximums
The End of Mandatory Retirement- Demographics 2008 and the Great Recession An Aging Population Population that Works Longer Work = Meaning
Benefit Implications- WSIA WSIA- LOE- 43(1) Age 63 and Over- max 2 years Re-employment- ends at 65- s. 41(7)(c) Constitutional Challenges
Benefit Implications- Benefit Plans WSIA Analysis- Limitation in Benefits S. 22- OHRC- can differentiate for benefits S. 25(2.1)- specific to employers Role of ESA Charter Challenge- Chatham-Kent
Benefits Implications- Planning Ensure Compliance With Legislation Ensure Clear Understanding of the Rules Ensure Clear Communication of the Rules
Potential Concerns with Older Employees Not as productive Costs are Higher Position/Skills are Not a Match Decline in Cognitive Functioning Not a Fit With Current Thinking What to Do?
Options for Older Employees Performance Management Retraining/Skills Development Early Retirement Packages Alternative Work Arrangements
A typical case: Performance Management and Older Employees Disengaged Employee Making Mistakes Not up to speed on new processes Not willing to change Not Happy With Young Manager What Do You Do?
Performance Management- How to Do it Riddell v. IBM Employee Being Performance Managed Supervisor Made Inquiries About Early Retirements Low Performing Employees Offered Packages
Performance Management- How to Do it Clear Communication of Expectations Clear Documentation of Expectations Measureable Benchmarks Regular Follow Up
Performance Management- Where Issues Arise Clennon v. Toronto General Hospital Performance Problems Identified No Follow Up No Documentation of Discussions Discrimination Found
Performance Management- Lessons Part 1- Training and Communication Provide Training on New Duties Communicate Expectations Communicate Performance Management System
Performance Management- Lessons Part 2- Implementation Performance Manage regardless of age Follow Written Policies Ensure Linkages Between Performance and Discipline Follow Up on Expectations Document, Document, Document
Retraining/Skills Development Byers v. Fiddick s Nursing Home Training Opportunities Provided Fairly May be Appropriate to Not Train in LIMITED circumstances
Fisher Retraining/Skills Development Constructive Dismissal Case Employee Close to Retirement Age New Systems Introduced- Training Provided Employee Struggled Court Found Constructive Dismissal
Retirement Discussions Deane v. Ontario (Correctional Services) Supervisor Discussed Early Retirement Facilitated Conversations with Retirees Advised Employee that Younger Candidates were Strong Discrimination Found
Retirement Discussions It is NOT what you say- it is how you say it! Respectful Communications Assume Everything you say is relied on. Some Examples
Alternative Work Arrangements Less Demanding Work Assignments Flexible Scheduling of Work Hours Voluntary Reduction in Work Days/Hours Phased Retirement Unpaid Leaves
Retirement Incentives Not Discriminatory Per Se Can be Discriminatory if Misapplied General Incentives Best Clear Communication
Bona Fide Occupational Requirements (BFOR's) Competency of Employee Ability to Perform the Work Generally, Case By Case Requires Documentation/Analysis
BFOR's- Firefighters Mandatory Retirement Age 60 HRTO- No Obligation to Test on Employer Obligations Rest with Employees Judicial Review Pending