Language in the Workplace: What employers need to know about recent changes to the Charter of the French Language


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The Quebec government’s Bill 96 was assented to by the Lieutenant-Governor on June 1 and is now called the Act respecting French, the official and common language of Québec. With this new law, the government has amended several provisions of the Charter of the French Language1 (hereinafter referred to as the “Charter”) and other laws in order to strengthen the place of French and reaffirm it as the official and common language of Québec. However, many of the changes to the Charter have a direct impact on employers in the province. As the Bill has received Royal Assent, the provisions are now law and employers are required to comply with them.

The question is: What are the new legislative obligations regarding language in the workplace that employers must comply with? Here are the key changes that you, as an employer, should be aware of and may need to comply with.

Communications with employees, employment contracts and job offers

As of June 1, 2022, the Charter requires employers to respect the right of their employees to conduct their activities in French.

Consequently, employers must use French when communicating in writing with their employees or with a particular employee, even after the employment relationship has ended. Exceptionally, an employer may communicate with an employee exclusively in another language only if the employee so requests.

The employer is also required to use French when communicating in writing with any of its employees or with an association of employees.

In addition, it must ensure that application forms, documents relating to working conditions and training documents for staff are all written in French. The French version of these documents must be accessible under conditions that are “at least as favourable” as documents written in a language other than the official language of Quebec.

The employer must also ensure that job offers, transfers and promotions are made in French. In this regard, an employer who wishes to fill a position by recruitment, hiring, transfer or promotion must ensure that the dissemination of the job offer in French is carried out “by means of transmission of the same nature and reaching a target audience of comparable size” as the version disseminated in another language.

Finally, individual written employment contracts are not spared by the reform. Indeed, these must be drafted in French, but it is possible for the parties to agree otherwise if they so wish. Where the individual employment contract is a “contract of adhesion2“, the parties may expressly choose to be bound by the version drafted in another language, but only after having read the French version.

Language requirements for hiring, transfer or promotion

In order to obtain a job, it was already prohibited for an employer to require a specific level of knowledge of a language other than French. However, if the employer could demonstrate the necessity of this knowledge for the performance of the duties related to the job, he could require the knowledge of another language. The government has chosen to tighten the screws in this area with the adoption of Bill 96.

Thus, since June 1, 2022, employers who wish to hire, recruit, transfer or even promote an employee to a position must have taken all reasonable measures to avoid imposing a language requirement other than French in order to access said position. This new provision therefore applies even before the employer can require, in the context of a specific position, knowledge of another language deemed necessary for the performance of the duties. More specifically, this new provision now requires the employer to meet the following three (3) prerequisites:

  1. The employer must have assessed the actual language needs associated with the tasks to be performed;
  2. The employer must have ascertained that the language skills already required of other employees were insufficient to perform the duties;
  3. The employer must have restricted as much as possible the number of positions to which the performance of duties requires the knowledge or a specific level of knowledge of a language other than the official language of Quebec.

If an employer fails to comply with one of these conditions, it will be “deemed” not to have taken all reasonable measures. It will therefore not be able to require an employee to know a language other than French and may be exposed to possible recourse.

It is important to note that these conditions do not apply where an employer would have to undertake an unreasonable reorganization of its business in order to comply with the new provisions.

Harassment due to language

From now on, it is explicitly provided that every employee has the right to a work environment free of discrimination or harassment resulting from a lack of knowledge of a language other than French, if he or she claims the possibility of expressing himself or herself in the official language of Quebec or if he or she has demanded the respect of a right under Chapter VI of the Charter.

When such conduct is brought to the employer’s attention, the latter must act to put an end to the situation and must take reasonable measures to prevent any future case of harassment or discrimination.

Francization of the Workplace

The new version of the Charter provides that companies with between 25 and 49 employees will now have to comply with the same francization rules that apply to companies with 50 or more employees.

These companies will have to register with the Office québécois de la langue française (hereinafter referred to as the “Office”), and will then have to conduct an analysis of their company’s linguistic situation and submit this analysis to the Office within three (3) months of the certification of their registration.

Companies with between 25 and 49 employees have three (3) years to register with the Board. Therefore, they must register by June 1, 2025.

If it is demonstrated that the workplace as a whole uses French on a widespread basis, a francization certificate will be issued to the company and it will have to continue to ensure widespread use of French within its walls.

If not, the Agency will order the company to take the appropriate francization steps, i.e., it will have to develop and follow a francization plan in order to allow widespread use of the French language in its workplace. The Office may also require that a francization committee be set up for companies with between 25 and 49 employees.

Application of the Charter to federally regulated enterprises operating in Quebec

The legislator now provides that no section of the Charter may be interpreted in such a way as to prevent its application to any enterprise or employer operating in Quebec. Although this section does not specify the jurisdiction of the enterprises covered, it is possible to argue that the Charter could apply to employers under federal jurisdiction. This idea would be consistent with what the government announced when the bill was under consideration3.

Types of penalties for violations

Employers who fail to comply with the provisions of the Charter are subject to a variety of sanctions, including civil, administrative and criminal penalties. These sanctions include, but are not limited to

  • the refusal to be awarded a public contract or government grant because of the employer’s non-compliance with the francization process
  • termination or rescission of a contract with a government agency
  • the suspension of the performance of a contract with the public administration when the breach of the Charter results from the performance of that contract
  • suspension or revocation of a license or other authorization of the same nature in the event of repeated breaches
  • a breach of the standards of ethics and discipline or
  • a fine of between $3,000.00 and $30,000.00.

Conclusions

The Royal Assent given to Bill 96 brings about several changes in the Quebec legislative corpus, particularly with respect to the Charter. These changes substantially modify the obligations of employers with respect to language in the workplace and employers are required to comply, for the most part, since June 1, 2022. Although newly introduced, the Act respecting French, the official and common language of Québec, French is already the subject of constitutional challenges and many anticipate that further challenges will follow. It will therefore be interesting to follow the evolution of these legislative changes with respect to future court challenges and, who knows, perhaps some of the amendments will be deemed unconstitutional.

 

1 Charter of the French Language, RLRQ c C-11.
2 Code civil du Québec, RLRQ c CCQ-1991, art 1379.
3 Act respecting French, the official and common language of Québec, LQ 2022, c 14, art. 67.