Tuesday, December 12, 2017

So why are women under-represented in construction?

Last week, CBC ran an article with the interesting headline, “Why has the number of Alberta women in trades stagnatedfor a decade?” This is an important question given the high salaries and extreme gender segregation in these occupations. This dynamic is a factor in Alberta’s large female wage-gap.

Unfortunately, the article doesn't deliver any answers. Instead, we get the usual “more awareness” spiel leavened with a bit of (soft-pedaled) “misogynist workplace culture”. The article then transitions into focusing on programs promoting women in trades. That these programs have made no impact on aggregated female participation rates is totally ignored.

My colleague Jason Foster and I recently published a study looking at the participation of traditionally under-represented groups in Alberta construction occupations from 2003 to 2014. Our interest was piqued by a 2007 joint government-industry strategy to address shortages of workers in Alberta’s construction industry. Two strategies jumped out at us:
  1. Encouraging traditionally under-represented groups (female, immigrant, Indigenous, and young workers) to join the industry, and
  2. Encouraging the federal government to increase employer access to temporary foreign workers (TFWs).

The absence of any meaningful evaluation of this strategy was also notable so we pulled StatCan data on construction occupation and CIC data on TFWs. What we found was:
  • Employment in construction occupations grew by 50% between 2003 and 2014 to 369,000, although there was significant year-to-year variation (the industry is cyclical).
  • Men held 93.6% of jobs in construction occupations on average (this varies +/-1%), mostly by non-immigrant, non-Indigenous men over age 25.
  • The overall share of employment by most traditionally under-represented groups maintained their share of employment during this period (absolute numbers rose). You can see this visually depicted in Figure 2 below.
  • The share of employment of TFWs grew significantly and most TFWs in construction occupations are men.

Figure 2 shows two other notable things. First, immigrants’ share of employment jumped during the boom of 2007 and 2012 while women’s share jumped during the 2007 boom. In both cases, these groups lost ground during the bust. Second, TFWs saw a similar pattern but increases and decreases are delayed.


Figure 3 looks at the experience of women more closely. The thick grey line shows overall year-over-year employment change (which is also basically the male line). The diamond-line shows that women experience more volatility than men: during booms their employment jumps more and, during busts, their employment declines more.


 Figure 5 looks at the experiences of TFWs. We had to re-scale the figures (note the scale on the left side of the figure) because the TFW changes are so extreme that, if we tried to plot women and TFWs on the same figure, the size of the TFW effect makes it hard to appreciate the experience of women.


Basically, employers hired lots of (male) TFWs during the booms. Looking back at Figure 2, note that proportion of TFWs rises over the period the period.

At the risk of over simplifying the conclusions, what this suggests to us is that:
  1. Employers continue to prefer to hire men and hire male TFWs when male Canadians are not available.
  2. The decision by the federal Harper government to relax the rules around TFWs (Jason Kenney was minister responsible) facilitated this employer behaviour.
  3. Had employers not been given access to more male workers by the feds, they might well have hired more traditionally under-represented groups (clearly there were such workers available).

This dynamic is not surprising: employers look to minimize costs. Changing workplace practices and cultures to make those workplaces more attractive to women is expensive. Instead, they naturally took the path of least resistance and hired more men. When the downturn came, the small gains women made were erased.

A knock-on effect is that (male) TFWs have now become a normal part of the construction labour force, taking positions that (absent TFWs) would likely be filled by Canadian women and other traditionally under-represented groups.

Coming back to the 2007 provincial labour force strategy, it mostly failed to attain its objectives. There are more workers from traditionally disadvantaged groups in the construction sector, but their share of employment is stagnant.

This failure likely reflects that goal of increasing participation was undermined by the goal of increasing access to TFWs. Faced with a choice between more male workers and increasing diversity (which increases cost), employers chose the cheapest option.

This, in turn, highlights that expecting employers to diversify their workforces because it is the right thing to do is unrealistic: employers are responsive to the profit imperative. If governments are seeking more equitable employment outcomes, then they will be forced to regulate industry as part of the solution--like they do in Newfoundland. This would be an appropriate task for the Status of Women Ministry which, so far, has advanced few changes that meaningfully impact Alberta women.

So, to answer the question posed by the CBC, women’s employment in construction is stagnant due to gender discrimination by employers, partly enabled by overly permissive federal immigration policy and partly enabled by the absence of provincial employment equity requirements.


-- Bob Barnetson

Friday, December 8, 2017

Labour & Pop Culture: The Clampdown

This week’s installment of Labour & Pop Culture is “The Clampdown” by the Clash. The clampdown refers to the growing calls in the 1970s for governments to oppress groups (e.g., welfare claimants, striking workers and other agitators) that sought to change the social, economic and moral norms of the UK. 

You’ll recall that the 1970s was the beginning of what became the neoliberal retrenchment led, in the UK, by Margaret Thatcher.

There are lots of worker references in the lyrics. Wearing the “blue and brown” refers to the most common uniform colours of workers and the song talks about the tendency of workers to be co-opted by the system.
You grow up and you calm down
You're working for the clampdown
You start wearing the blue and brown
You're working for the clampdown
So you got someone to boss around
It makes you feel big now
You drift until you brutalize
You made your first kill now
The price of this, suggests the song, is that you essentially sacrifice your life to economically and socially benefit others (essentially capitalists).
The voices in your head are calling
Stop wasting your time, there's nothing coming
Only a fool would think someone could save you
The men at the factory are old and cunning
You don't owe nothing, so boy get running
It's the best years of your life they want to steal
At the end of the song, we hear a call for revolution (whether electoral or political is unclear):
In these days of evil presidentes
Working for the clampdown
But lately one or two has fully paid their due
For working for the clampdown
I picked a Springsteen cover because I can’t stand the Clash. You can suffer through a live version by the Clash here if you want.



Hey, hey!
Ooh!
The kingdom is ransacked
the jewels all taken back
and the chopper descends
they're hidden in the back
with a message on a half-baked tape
with the spool going round
saying I'm back here in this place
and I could cry
and there's smoke you could click on

What are we gonna do now?
Taking off his turban, they said, is this man a Jew?
'Cause they're working for the clampdown
They put up a poster saying we earn more than you!
When we're working for the clampdown
We will teach our twisted speech
To the young believers
We will train our blue-eyed men
To be young believers

The judge said five to ten, but I say double that again
I'm not working for the clampdown
No man born with a living soul
Can be working for the clampdown
Kick over the wall 'cause government's to fall
How can you refuse it?
Let fury have the hour, anger can be power
D'you know that you can use it?

The voices in your head are calling
Stop wasting your time, there's nothing coming
Only a fool would think someone could save you
The men at the factory are old and cunning
You don't owe nothing, so boy get running
It's the best years of your life they want to steal

You grow up and you calm down
You're working for the clampdown
You start wearing the blue and brown
You're working for the clampdown
So you got someone to boss around
It makes you feel big now
You drift until you brutalize
You made your first kill now

In these days of evil presidentes
Working for the clampdown
But lately one or two has fully paid their due
For working for the clampdown
Ha! Gitalong! Gitalong!
Working for the clampdown
Ha! Gitalong! Gitalong!
Working for the clampdown

Yeah I'm working hard in Harrisburg
Working hard in Petersburg
Working for the clampdown
Working for the clampdown
Ha! Gitalong! Gitalong
Begging to be melted down
Gitalong, gitalong
(Work)
(Work)
(Work) And I've given away no secrets - ha!
(Work)
(Work)
(More work)
(More work)
(Work)
(Work)
(Work)
(Work)
Who's barmy now?

-- Bob Barnetson

Tuesday, December 5, 2017

Bill 30 and WCB appeals

Continuing with the workers’ compensation changes in Bill 30 (An Act to Protect the Health and Well-being of Working Albertans), today I wanted to examine changes to the structure of the appeal process.

This topic is a long-standing bugbear among WCB claimants who will often note that the process is complex, slow, and seems stacked against them. Many report not bothering to pursue appeals because they view it as a hopeless task. Currently:
  • Workers dissatisfied with decisions about their claims can access two levels of appeals. The Dispute Resolution and Decision Review Body (DRDRB) is an internal review process while the Appeals Commission offers a second, external review of decisions. 
  • Workers can also receive assistance from the Office of the Appeals Advisor, a (notionally) independent service provided to workers by the WCB that focuses on resolving concerns with decisions before they enter the formal appeal process. 
  • Many workers also make complaints about the operation of the system to their MLAs, the provincial ombudsperson, and other government agencies. A recurring (but unverified) stat I’ve heard from constituency office workers is that about one-third of MLA visits are about WCB problems.
The WCB Review Panel found most stakeholders were satisfied with the Appeals Commission’s work. The panel commented:
[M]ost stakeholders conveyed to our Panel that they are largely satisfied with the Appeals Commission and current performance measures seem appropriate. They were considerably less charitable about the DRDRB process. The former is regarded as well-run, independent and impartial. The latter is regarded with suspicion and sometimes outright dismissal as a “waste of time”. (p.120)
About 40% of disputes that reach the Appeal Commission result in a change in the original decision in some way (reversed of varied). This is a pretty high level of error to get through the regular claims management plus the DRDRB appeal processes.

There is also significant attrition of concerns at the DRDRB level (about 75% of DRDRB claims are not appealed further). It is not possible to tell if these have been resolved to the satisfaction of workers or if they just gave up.

Picking up on its theme of the WCB having a culture of denial (of worker claims), the key comment by the Review Panel on the DRDRB’s operation was:
The central analysis right now appears to be, “Was the right decision made in accordance with the rules, based on the facts in this claim?” In a worker-focused system the more appropriate analysis would be, “Are we doing what we can within policy to help this person get the assistance they require in their situation?”

This is an important difference. The former analysis focuses on making sure a decision conforms to a rigid set of rules; if it can’t be shoehorned within the rules then it’s out, and there is no exercise of discretion. The latter analysis focuses on what can be done within the ambit of WCB policy to resolve a person’s concern and get them the help they require. It is all about discretion and nuance and making use of options, while recognizing that a worker’s claim must still fit within the existing statutory framework. 
In keeping with the desired shift to a worker-centered system, the internal review process needs to shift in its cultural approach. This goes for employer account decisions as much as adjudicative claim decisions. (p. 124)
The Review Panel also recommended the establishment of a fair practices office to serve as an ombudsperson for complaints about the operation of the system.

The government seems to have taken these recommendations to heart. Bill 30 established an independent Fair Practices Office to act as an ombudsperson for WCB matters and to provide advice to workers trying to navigate the system. This office will also track trends and perform quality assurance audits.

The Office of the Appeals Advisor will report to the Fair Practices Office to get some additional separation from the WCB. The OAA will also have an expanded mandate to assist small- and medium-sized employers as well as unionized and non-unionized workers.

A Code of Conduct must be established, one function of which will be to outline how WCB staff are expected to act in order to recognize the rights of workers and employers.

Additional changes include:
  • Timeline for reviews and appeals has been extended by a year (to two years) to accommodate the difficult pathway of many workers to an appeal.
  • The role of the WCB at Appeals Commission hearings has been clarified, which should reduce the perception that a worker is facing down both the employer and the WCB during a hearing.
  • The DRDRB and Appeal Commission can order interim relief (i.e., restoration of benefits) while a review or appeal is underway so the worker isn’t being starved while waiting their day in court.
The medical panel process (which is engaged when there is a dispute about a workers’ diagnosis) will also change. Workers will be able to trigger the process if they wish. Medical professionals other than doctors can advise the panel. Workers requiring a medical exam will get to choose the physician they see from a list.

Overall, this is a solid effort to make the WCB appeal system structurally better. A further, non-legislative improvement would be funding worker advocates (e.g., in community groups and worker centres) that already have trusting relationships with workers to help them with their claims. This will remedy the deep (and often well-founded) skepticism of workers to WCB-funded OAA.

-- Bob Barnetson

Monday, December 4, 2017

Bill 30: WCB and Psychological Injuries, Deeming, and RT

Continuing with the workers’ compensation changes in Bill 30 (An Act to Protect the Health and Well-being of Working Albertans), today I wanted to examine the effect on receiving and maintaining compensation. This is a bit of a grab bag so I have broken the post up into sections.

Occupational Diseases
It is often difficult for workers to get occupational diseases accepted by the WCB for compensation. Diseases often have long latency periods, murky causation, and workers sometimes have no idea that they were exposed to a substance that, years later, gives rise to their illness.

For this reason, diseases with clear occupational relationships are sometimes granted presumptive status. Basically, if you have the disease and you worked in the industry (sometimes for a set period of time), your disease is presumed to have arisen from and occurred during work.

Alberta’s list of diseases with presumptive status is determined by cabinet and contained in regulation. This list in regulation has not been meaningfully updated since 1982. Yes, 1982—good job there former Tory cabinet members… . (There have been some changes related to firefighter cancers and PTSD among certain first responders.).

Bill 30 includes a couple of good changes:
  • cabinet has authority to expand the list of first-responder professions for which PTSD is granted presumptive status (this will include correctional officers and dispatchers),
  • a committee will be established to recommend changes around occupational diseases as new evidence emerges, and
  • the Appeals Commission can flag diseases and conditions that may warrant review by this committee.
Overall, these are good changes that will ensure the system stays abreast of changing medical evidence. It is hard to believe that workers have had to wait this long for such a common sense change. The only downside is that the legislation appears to limit presumptive PTSD status to first responders. Other workers (e.g., social workers) will have to still make a claim for PTSD as a psychological injury.

Psychological Injuries
Unfortunately, Bill 30 does not make it easier for workers to receive compensation for psychological injuries sustained at work. At present, workers who wish to file a claim for an injury (such as chronic onset stress) must meet a much higher standard than other kinds of injury (e.g., a laceration). (Note that the test varies by type of psychological injury.)

To have a “regular” injury accepted requires only that an injury arise from and occur during work. This is a low threshold and disputes are assessed using a generous balance-of-probabilities approach. The rules around chronic onset stress claims give you a good idea of how hard psychological injuries are to get accepted (apologies for the length):
Claims for this type of injury are eligible for compensation only when all of the following criteria are met:

· there is a confirmed psychological or psychiatric diagnosis as described in the DSM,

· the work-related events or stressors are the predominant cause of the injury; predominant cause means the prevailing, strongest, chief, or main cause of the chronic onset stress,

· the work-related events are excessive or unusual in comparison to the normal pressures and tensions experienced by the average worker in a similar occupation, and

· there is objective confirmation of the events.

In addition to the duties reasonably expected by the nature of the worker’s occupation, normal pressures and tensions include, for example, interpersonal relations and conflicts, health and safety concerns, union issues, and routine labour relations actions taken by the employer, including workload and deadlines, work evaluation, performance management (discipline), transfers, changes in job duties, lay-offs, demotions, terminations, and reorganizations, to which all workers may be subject from time to time.

Ongoing compensability for chronic onset stress will be accepted when the medical evidence shows that the work or work-related injury is the predominant cause of the current symptoms. (Policy 03-01, Part 2, Application 6, Question 11).
This is basically a "get out of compensation free" card for employers; workers can almost never meet this kind of standard. In its final report, the WCB Review Panel noted about psychological injuries:
[T]he use of special criteria for certain conditions, above and beyond the base “but for” test, effectively creates two classes of injured workers, with one of those classes facing a more uphill battle that the other to access benefits. … Our Panel believes that the WCB should examine its current use of the predominant cause threshold with a view to developing a better way of ensuring that an injury or illness was more likely than not caused by work. (p.84)
This kind of work may well be better left to the WCB to sort out in policy than to address in legislation. Yet, the WCB’s culture of claims denial makes me skeptical that they can be trusted to take such action. This seems like a missed opportunity.

Deeming Wages
Presently, when workers are recovering from an injury and cannot return to their date-of-injury job, they get vocational rehabilitation services. These services vary depending on the worker but the idea is to get workers attached to the labour force and earning some kind of wage to reduce their compensation cost.

Workers who are unable to find a job within a certain time period have their wages “deemed”. Basically the WCB pretends they are earning wages (even if they are unemployed and the job they have been assessed for is not compatible with their job restrictions or doesn’t exist) and claws that amount out of their compensation.

This is deeply unfair (an injured worker recently called it “shitbaggery of the highest order” in a conversation) and is designed to benefit employers by reducing their claims costs, which, in turn, reduces their premiums. (Now you see why I’m skeptical of the WCB’s ability to fairly established criteria around psychological injuries.)

Bill 30 makes it harder for the WCB to deem wages by requiring that “the Board may [deem a worker’s earnings] only after the Board has demonstrated it has made every reasonable effort to support the worker in the worker’s search for suitable employment.” This does not preclude deeming, but it sets some limits around it: “every reasonable effort” is a high bar.

Return to Work Obligation
Bill 30 creates an obligation on employers to re-employ injured workers when they are able to return to their duties. This gives workers greater access to their right to disability accommodation under the Human Rights Act.

At present, workers’ only recourse if their employer sacks them after an injury is a lengthy (~2 years) process with the Human Rights Commission that won’t really provide any remedy. This process profoundly disadvantages injured workers because their injury-related disability disadvantages them in the job market (i.e., they can’t put food on the table because they get no compensation (thanks to deeming) or wages (thanks to the employer’s discrimination)).

If employers illegitimately don’t comply with their RTW obligations (e.g., sacking the worker without reason), the WCB must levy a financial penalty of up to a year’s salary, which can then be turned over to the worker. Employers are also required to continue health benefits for a period of time (which workers may use in addition to their WCB coverage).

This is a significant win for workers, reducing the chance that their employer will simply sack them once they are injured. Together with tighter controls on deeming, this should make things better for injured workers. How well this workers will turn on the degree to which the WCB can change its culture of denial.

-- Bob Barnetson

Friday, December 1, 2017

Bill 30 and WCB benefit changes

Continuing our look at Bill 30 (An Act to Protect the Health and Well-being of Working Albertans), there are a lot of changes to workers’ compensation. Today I wanted to examine some of the changes it makes to financial benefits for claimants.

Presently, workers who are totally disabled (permanently or temporarily) are eligible to receive wage-loss benefits totalling 90% of their net earnings. The definition of earnings includes an insurable earnings cap or $98,700. This means that the WCB will replace $9 of every $10 of lost wages up to $98,700. Any lost wages over $98,700 are not compensated.

Bill 30 retains the 90% wage-loss replacement rate but eliminates the cap. This will be a boon to high-wage earners who have been doubly financially penalized by the cap (getting only 90% of wages and not getting any benefits for income over $98.7k).

It would have been more beneficial for the WCB to provide 100% replacement and keep the cap as this would have better helped lower-wage Albertans (who comprise the majority of injured workers). Helping out the richest injured workers seems like a strange choice for a government that styles itself as socially progressive to make.

Or they could have also done both (100% and no cap) and actually financially compensate all workers for the effect of their injuries… .That said, there were also some adjustments targeting lower-income injured workers.

Workers under 25 who experience a long-term and significant injury (≥50%) can have their income adjusted to the Albertan average. This addresses the situation wherein young workers (who often earn low wages) get stuck with life-time compensation set at absurdly low levels.

Bill 30 also adds a mandatory death benefit of $90.7k in the case of fatalities, levels-out the treatment of widows, and extends benefits to dependent children not living at home to age 25 if enrolled in an educational program. Bill 30 also improves retirement benefits for injured workers, recognizing the effect injury has on their ability to save for retirement.

Perhaps more importantly, the indexing of WCB benefits will track the consumer-price index (CPI). Presently, benefits are indexed at CPI - 0.5%. Under the previous policy, the worse you are injured, the worse the erosion of your benefits is, which is an unconscionable violation of the basic purpose of workers’ compensation. This practice is a legacy of the Tory government and allows benefits to erode over time in terms of purchasing power to the benefit of employers (whose claims costs go down).

Which brings us to an issue angering injured worker advocates: retroactivity.

As far as I can tell, the changes to benefit levels only affect claims that are filed after the changes take effect (between April and September 2018), although the CPI change should affect all claimants going forward.

That is to say, workers whose claims have been adjudicated cannot file for any sort of re-adjudication under the new rules. Are you a 17-year-old who gets permanently and totally injured on McDonald’s wages today? Sorry, you’re stuck with below poverty-line compensation until you die. Did your mom die and now you are 18 and want to go university? Oh well, you’re on your own sister. I appreciate the practical and political difficulty of making changes retro-actively. A saw-off might have been to allow re-adjudication going forward (i.e., allow the new rules to apply to old claims starting on a fixed date).

It may be that the WCB itself will create a process to re-examine old claims, although I think that is a faint hope. I only mention it because the government kicked another item to the WCB to sort out.

Presently, the WCB has been returning surpluses in the accident fund to employers to the tune of hundreds of millions of dollars each year. These surpluses are created (in significant part) by investment earnings from the accident fund, which are greater than the liabilities the fund must meet over the life of the claims the WCB is currently carrying. The Review Panel recommend some ways the surplus might be used to benefit workers and employers:
  • Retained in the fund to further “inflation proof” the Accident Fund and further secure future compensation and benefits for injured workers;
  • Conditional grants to support actions that improve workplace safety;
  • Conditional grants to support research into enhancements of the system;
  • Enhancement of data gathering to support better intelligence on workplace safety and to better inform injury and illness prevention efforts; and
  • Facilitate some stability in employer rates by helping smooth out the step changes that may occur due to our Panel’s other recommendations.
Another option would be to address long-standing disputed claims and apply the benefits improvements set out in Bill 30 to existing claims. Not surprisingly, employers have been seeking continued surplus distributions.

The government essentially followed the last recommendation of the review panel. At least $94 million will be needed annually to offset the cost of additional benefits triggered by Bill 30. But that still leaves $100m (sometimes much more) up for grabs each year.

The government declined to clarify in legislation what should happen to future surpluses.  They have clarified that the purpose of money in the accident fund is intended to create a sustainable and fair system. That said, Bill 30 leaves it up to the WCB to determine how best to proceed.

It may be that the government may have some quiet (or not so quiet) suggestions about how to handle surpluses. Leaving the decision to the WCB insulates the government from any political fall out. It also raises the possibility that historically pro-employer WCB will just keep giving the surpluses to employers.

Overall, these changes to the WCB are a significant win for injured workers. Yet there is a sense of half-measures to some of them. And aggrieved injured workers remain out in the cold.

-- Bob Barnetson

Labour & Pop Culture: Mary Ellen Carter

This week’s installment of Labour & Pop Culture is “Mary Ellen Carter” by Stan Rogers. The song is about a workplace incident (the sinking of a fishing vessel) but, unusually, no one died!

Instead the song, examines what happens afterward. The owners get paid out and the workers get laid off. So they band together and raise the Mary Ellen Carter.

Whether the workers get the ship or get paid out, it unclear. The song is more about facing adversity and persevering than work.

This version is by Rogers’ son, Nathan.



She went down last October in a pouring driving rain.
The skipper, he'd been drinking and the Mate, he felt no pain.
Too close to Three Mile Rock, and she was dealt her mortal blow,
And the Mary Ellen Carter settled low.
There were five of us aboard her when she finally was awash.
We'd worked like hell to save her, all heedless of the cost.
And the groan she gave as she went down, it caused us to proclaim
That the Mary Ellen Carter would rise again.

Well, the owners wrote her off; not a nickel would they spend.
She gave twenty years of service, boys, then met her sorry end.
But insurance paid the loss to them, they let her rest below.
Then they laughed at us and said we had to go.
But we talked of her all winter, some days around the clock,
For she's worth a quarter million, afloat and at the dock.
And with every jar that hit the bar, we swore we would remain
And make the Mary Ellen Carter rise again.

Rise again, rise again, that her name not be lost
To the knowledge of men.
Those who loved her best and were with her till the end
Will make the Mary Ellen Carter rise again.

All spring, now, we've been with her on a barge lent by a friend.
Three dives a day in hard hat suit and twice I've had the bends.
Thank God it's only sixty feet and the currents here are slow
Or I'd never have the strength to go below.
But we've patched her rents, stopped her vents, dogged hatch and
Porthole down.
Put cables to her, 'fore and aft and birded her around.
Tomorrow, noon, we hit the air and then take up the strain.
And watch the Mary Ellen Carter Rise Again.

For we couldn't leave her there, you see, to crumble into scale.
She'd saved our lives so many times, living through the gale
And the laughing, drunken rats who left her to a sorry grave
They won't be laughing in another day. ..
And you, to whom adversity has dealt the final blow
With smiling bastards lying to you everywhere you go
Turn to, and put out all your strength of arm and heart and brain
And like the Mary Ellen Carter, rise again.

Rise again, rise again - though your heart it be broken
And life about to end
No matter what you've lost, be it a home, a love, a friend.
Like the Mary Ellen Carter, rise again

-- Bob Barnetson

Thursday, November 30, 2017

Bill 30 and workplace harassment and violence

Continuing our look at Bill 30 (An Act to Protect the Health and Well-being of Working Albertans), today I wanted to examine new rules about violence and harassment in the workplace.

The new OHS Act created by Bill 30 makes employers responsible for ensuring harassment- and violence-free workplaces:
3(1) Every employer shall ensure, as far as it is reasonably practicable for the employer to do so,

(c) that none of the employer’s workers are subjected to or participate in harassment or violence at the work site,
There are similar obligations for supervisors and a requirement for workers to refrain from causing or participating in this behaviour. Harassment and violence are defined this way
1(q) “harassment” means any single incident or repeated incidents of objectionable or unwelcome conduct, comment, bullying or action by a person that the person knows or ought reasonably to know will or would cause offence or humiliation to a worker, or adversely affects the worker’s health and safety, and includes

(i) conduct, comment, bullying or action because of race, religious beliefs, colour, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status, gender, gender identity, gender expression and sexual orientation, and

(ii) a sexual solicitation or advance,

but excludes any reasonable conduct of an employer or supervisor in respect of the management of workers or a work site;

1(yy) “violence”, whether at a work site or work-related, means the threatened, attempted or actual conduct of a person that causes or is likely to cause physical or psychological injury or harm, and includes domestic or sexual violence;
Requiring employers to prevent harassment and allowing workers to make OHS complaints if employers don’t do so is a significant change. Workplace harassment is endemic, as evident in a recent series of stories about unremediated harassment of City of Edmonton employees. Being able to file an OHS complaint gives workers a much faster remedy for harassment than using internal complaint procedures or (if unionized) filing grievances.

It will be interesting to see how OHS officers handles such complaints and how this requirement interacts with the new language around the right to refuse unsafe work. If my boss is a yeller, for example, (and mine is not!) and if that causes me significant distress, can I refuse to interact with her if her yelling has no meaningful relationship to legitimate management activities? And what if my boss is an ass grabber or a low-level racist? Will we see OHS orders that specify so-and-so is not to grab workers’ asses? Or is precluded from interacting with specific subordinates? 

How will this work in a small workplace where the boss is the owner and the boss is a serial harasser? Will OHS preclude the boss from attending the workplace? Can I refuse unsafe work indefinitely (and continue to get paid) if the boss remains in the workplace? I suspect no one has really thought this through. This is going to be super interesting and will pressure employers to act on misconduct that often just gets a pass these days.

The explicit requirement for employers to protect workers from violence addresses, in part, a 2011 case where a women was murdered by her spouse at work. Despite being aware of the threats against her, her employer took no steps to protect her. The government promised to address this issue in 2015. More recently, there was a disturbing story about assaults on City of Edmonton bus drivers.

An interesting question is how this requirement will interact with the recently legislation designed to protect gas station and convenience store staff (Bill 19). This legislation amended the OHS Code and requires employers to have so-called violence prevention plans in place. Unfortunately, these plans are really robbery prevention plans and will have little effect on violence.

As I have argued elsewhere, what Bill 19 reflects is a saw-off: the government got good press and support from industry around (long-needed) gas-and-dash legislation and, in return, took a pass on violence-prevention requirements (e.g., bullet-proof barriers for clerks) that employers opposed because they are costly.

Fast forward to Bill 30 and employers now have an obligation to take reasonably practicable steps to protect workers from violence. So will the next employer whose convenience store clerk gets killed because there were no barriers be able to rely upon their violence prevention program to evade charges under the OHS Act? Installing a barrier is a reasonable practicable step to prevent such a death even if barriers are not required by the Code. Failing to install one (even if it is not required under the Code, which sets out absolute minimums) seems to violate the Act.

One of the most interesting immediate effects of adding harassment and violence in workplaces is that these behaviours have now been identified as (1) wrongful and (2) threats to workers health. I am already hearing reports of workers reading media reports and reframing their negative workplace experiences as the fault of their employer.

Combined with the recent flurry of harassment allegations against (and consequences for) powerful actors in Hollywood, I wonder if this legislation will contribute to new norms and expectations in Alberta workplaces? The City of Edmonton’s rapid shift from denial to action on harassment being an example of how this could play out.

-- Bob Barnetson