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Dealing with Age Discrimination: Workers’ rights and strategies

Experienced Asian man arranging merger dealA client in his early 60s recently contacted me to ask about his rights as an older job seeker. He had been applying for jobs in retail stores, and when he submitted an in person application to a large sportswear retailer, he was flatly told that he did “not look like their target demographic” – an obvious reference to his age. Looking around the store, he noted that he was older than the other sales staff, but commented to the store manager that since he is a customer and knows the product well, perhaps he could sell to older customers. The manager nodded and took the resume. He never called my client back.

The bottom line is that it is harder for older job seekers to secure employment. A New York Times article from January this year raised this issue, quoting Ofer Sharone, assistant professor at the MIT Sloan School of Management, author of “Flawed System/Flawed Self: Job Searching and Unemployment Experiences” and founder of the non-profit Institute for Career Transitions, saying that “with each decade the length it takes to get re-employed is longer”, suggesting that whereas it may take a younger person 7 months to find a job, job seekers over 55 can take nearly a year to do so.

Your Rights

In Ontario, the Human Rights Code tackles ageism through a specific set of rights and responsibilities for employers, employees and job seekers. Specifically as it related to employment, the “Policy on Discrimination Against Older Persons Because of Age” instructs that:

Job seekers and employees over the age of 18:
– have the right to be offered the same chances in employment as everyone else
– cannot be denied a job, training or a promotion due to their age
– cannot be forced to retire, because of age (In Ontario, mandatory retirement is illegal, with very few specific exceptions).

From their side, employers:
– cannot refuse to hire, train or promote people because of age
– are not allowed to unfairly target older workers, when reducing staff or reorganizing
– must make sure to create a workplace that is inclusive and respectful, and discrimination free.

To make a human rights complaint (called an application), people can contact the Human Rights Tribunal of Ontario (Toll Free) at 1-866-598-0322. For legal advice, applicants can contact the Human Rights Legal Support Centre (Toll Free) at 1-866-625-5179.

Strategies for handling age discrimination

The New York Times article suggested that many of the reasons that employers are reluctant to hire older workers are rooted in mistaken assumptions about them:

1. Employers might assume that older workers are not willing to make a long-term commitment to the job, whereas the evidence points at the opposite, according to Mr Sharone: “The older worker tends to be more loyal and stick around longer than the younger worker. The younger worker is moving around to acquire new skills.”

Strategy: Workers could anticipate this concern and address it in the cover letter and interview, to reassure employers of their intentions.

2. Employers sometimes expect that older workers are less productive and energetic. “Older workers are as productive as any other age group,” Mr. Sharone reported; “The variations are between workers, not age groups.”

Strategy: Workers could make a special effort to demonstrate enthusiasm, energy and vitality in their interactions with the employer

3. Employers worry that older job applicants might expect higher salaries or are overqualified. “Most people are happy and willing to go back to a position they had a few years ago, if it gets them back doing work they’re qualified to do and want to do,” Mr. Sharone said.

Strategy: Older workers can anticipate this concern and be clear about their salary and other expectations; they might even seek work in a new field, where they may have less experience, so this is not a concern.

4. Employers might assume that older workers lack technological skills. Concerns about the ability to master new technologies, and a lack of openness to change might occur in the employers’ mind, as well as a concern about how up-to-date an older candidate’s skills might be.

Strategy: As with all workers, older job seekers should ensure that their technological and software skills are updated and sharp. They should ensure that they have a strong social media presence, especially on LinkedIn. Job seekers can include a public URL link to their LinkedIn profile on their resume, cover letter and email.

Other strategies for minimizing ageism might include:

  • Join job search programs such as those offered at JVS Toronto’s Employment Source Centres – to update your resumes, learn new interview skills, enhance LinkedIn skills and explore the possibility of upgrading skills.
  • Expand your network – the New York Times article quotes Chris Farrell, the author of a book about older workers: “Academic research convincingly shows that more than half of all jobs come through a network. My suspicion is that the percentage is even higher for 60-plus workers. Meet with as many people from your network as possible. Gather their insights and their suggestions,” he suggested; “Always ask them the most critical question: ‘Who else should I talk to?’ ”.
  • Consider looking for work at smaller organizations, where experience and skill are needed and valued more; the article suggests employers such as “non-profits, start-ups, small trade associations and niche educational programs”.
  • Do you have a specialized skill set? Explore the possibility of becoming self-employed — offer your services as a consultant.
  • Seek out Third Quarter, a recruitment site which describes itself as “Canada’s recruiter for people 45 and over” and posts an impressive collection of jobs. Third Quarter also work with CARP to offer a range of workshops and networking opportunities for older workers.

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Ask the Employment Specialist: Looking for work when working on contract

Drawing of a typewriter with the words "Dear Employment Specialist"Dear Joanna,

I’m on a six-month contract working at a local large law firm. My contract is winding down with three months left. Out of fear of being unemployed again once the contract ends, I started applying for jobs in other law firms. As you know, jobs are scarce and the competition is fierce. One employer has invited me to a job interview! Now I feel badly about applying now since I’ve developed a pretty good rapport with everyone at my present company.

If I were to actually be offered another job, do you think it’s okay to leave, say 2 months before the end of the contract?

Signed: Concerned Contractor (CC)

[Read more…]

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Ask the Employment Specialist: Working from Home Wardrobe

Freelance Worker on laptopDear Joanna,

I am a freelance editor who works from home. I typically dart right to the computer in my pyjamas and start my work day. There are pros and cons of working from home. It’s definitely isolating and I miss the informal and fun conversations with co-workers, especially during lunch hour. Sometimes I find it hard to motivate myself to focus on the job at hand.

Do you have any clothing tips for home-based employees?

Signed: Home Alone

Dear Home Alone,

You are not alone at all; Statistics Canada surveys show that over one million Canadians work from home. Home-based businesses are booming in our economy. According to Wendy Helfenbaum of Take Two Productions, how you dress for work can impact on your efficiency and productivity. JVS Employment Counsellors would also tell you that when you are dressed professionally, even if you are at home, you feel professional and in charge. Below are some tips from blog When The Moon Shines for how to maximize your success when working from home.

1. Building your brand.

Being stylish, up-to-date in your wardrobe, caring about your looks and presentation can make a huge difference in your motivation. Your work from home is not a retirement home for all your faded, ill-fitting and ripped clothes. Plus, you always want to be ready for a last-minute meeting. It is part of your branding, marketing and selling of your skills.

2. Like what you wear.

Essential work-at-home clothes can include: a jacket or blazer, dark jeans or dress pants, a nice sweater or causal blouse, for women. For men, a button-down shirt, a good pair of shoes, good hair grooming, ironed clothes and shined shoes, and colours that flatter you and that they like would be good.

3. Avoid work-out clothes.

Your home wardrobe must not be your gym or work-out clothes. You must have enough outfits in your work from home wardrobe to last you a whole work week, because you are not going to do the washing during work hours (more on that in a future post too) and who the hell can be bothered doing it at night. If you work five days a week at home, you need five sets of clothes.

4. Be comfortable.

Build your wardrobe from the skin up. You need comfortable underwear. Buy comfortable pants. Women might consider buying dressy yoga pants. You need an assortment of shirts: short sleeves, three-quarter sleeves, and long sleeves. I advise going for t-shirts with stretch in them because it is much easier to work in fabric that moves with you.

5. Keep it simple.

Everything needs to go with everything, and your wardrobe needs to be arranged for ease of outfit selection. Make it easy to get dressed and you’re more likely to get out of your PJs and put on something fit for public viewing.

6. Always be professional.

To expand on building your brand, the fundamental, underpinning principle of the work from home wardrobe is this: you have got to be able to leave the house in it, even if only to get milk or go to the post office. You don’t want a delivery guy turning up at your door and finding you in your dressing gown at 3 pm. You also need to be able to Skype or turn on your web cam without looking a mess or that you just rolled out of bed.

Joanna

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What to Consider When Using Temporary Employment Agencies

Young girl talking on smartphone and typing on laptopWhen I suggest to job seekers the idea of contacting an agency for temporary work, I often face a wall of anxious questions. Job seekers worry about how such jobs are viewed by employers on resumes, as well as legal concerns about their rights regarding hours, pay, hours, vacation, references and other issues.

Temporary work, while it has its drawbacks, can be effective for many job seekers if it is taken through high quality agencies as part of a clear goal-directed job search strategy.

Job seekers do have some protections under the Ontario Employment Standards Act (ESA). The Ontario Ministry of Labour released an updated guide about the legal rights of temporary “assignment employees” in May 2015. Here are some relevant highlights:

Definitions

  1. The assignment employee is a candidate who has been registered with a temporary agency to receive temporary work assignments; they are, by legal definition, an official employee of the agency, even between assignments, unless they resign or are terminated.
  2. The temporary help agency (“temp agency“) hires employees and assigns them to perform work on a temporary basis for their clients
  3. Agency clients are the employers for whom the temp agency works, with the goal of helping them fill temporary positions in their companies

Legal Rights of Temporary Assignment Employees

1. Information:

Temp agencies must provide the following to their assignment employees (in writing):

  • the legal name of the agency, as well as any operating or business name of the agency (if it is different from the legal name)
  • contact information for the agency, including its address, telephone number and one or more contact names
  • a copy of the information sheet published by the Director of Employment Standards entitled “Your Employment Standards Rights: Temporary Help Agency Assignment Employees”.

When offered work assignments, employees must receive (can be verbal when the work assignment is offered, but must be in writing as soon as possible after):

  • the legal name of the client, as well as any operating or business name of the client (if it is different from the legal name)
  • contact information for the client, including its address, telephone number and one or more contact names
  • the hourly or other wage rate or commission and benefits associated with the assignment
  • the hours of work
  • a general description of the work
  • the estimated term of the assignment (if known when the offer is made)
  • the pay period and pay day

2. Fees:

A temporary help agency cannot charge a fee to an assignment employee (or a prospective employee) for:

  • becoming an employee of the agency
  • the agency assigning or trying to assign the employee to perform temporary work for a client
  • the agency providing the employee with help in preparing resumes or preparing for job interviews

3. Restrictions on Accepting Direct Employment With Agency Clients:

An agency cannot:

  • restrict an assignment employee from accepting direct employment with a client
  • charge a fee to a client of the agency for entering into a direct employment relationship with an agency’s assignment employee, unless the fee is charged during the first six months of the temporary contract with that client
  • stop its client from providing a job reference for an assignment employee

4. Public Holidays:

Temporary help agency assignment employees generally have the same public holiday rights as other employees. (see Public Holidays and the Public Holiday Pay Calculator for more information), other than:

If a public holiday falls on a day when the employee is on an assignment and that day would ordinarily be a working day, the employee is entitled to the day off with public holiday pay, which is all the regular wages earned plus vacation pay payable in the four weeks before the week in which the holiday falls, divided by 20.

The employee may also agree, in writing, to work on the holiday, which will give them the right to:

  • their regular pay for that day and a substitute day off with public holiday pay; OR,
  • get premium pay for every hour worked on the holiday plus public holiday pay.

If the employee is on assignment but the holiday falls on a day that is not ordinarily a working day for the employee, they will generally get a substitute day off with public holiday pay. The employee may also agree (in writing) to public holiday pay only.

When a holiday falls on a day that the employee is not on assignment, they will generally be entitled only to public holiday pay for the holiday.

5. Termination of Employment:

Temporary help agency assignment employees generally have the same rights as other employees to notice of termination. (See “Termination of Employment” for more information), with these exceptions:

During each week of termination notice, assignment employees are entitled to be paid of the wages they are entitled to receive, which cannot be less than:

  • In the case of a termination other than that which results from a lay-off going on longer than a “temporary lay-off”, the total amount of wages earned by the assignment employee in the 12 weeks ending on the employee’s last day of work for a client of the agency, divided by 12

or,

  • In the case of a termination that results from a lay-off going on longer than a “temporary lay-off”, the total amount of wages earned by the assignment employee in the 12 weeks before the deemed termination date, divided by 12.The deemed termination date is the first day of the lay-off.

If an employee is being terminated without working notice, pay in lieu of notice is calculated as the amount of wages earned in the 12 weeks ending on their last day of work for a client of the agency or, in the 12 weeks before the deemed termination date, if the termination is triggered by a lay-off going on longer than a “temporary lay-off”, divided by 12, and multiplied by the number of weeks of notice to which the employee is entitled.

Termination of employment may be triggered by a lay-off that lasts longer than a “temporary lay-off”. An assignment employee is considered to be on a week of layoff if he or she is not assigned by the agency to perform work for a client of the agency during that week, unless, for one or more days, an assignment employee

  • is not able or not available for work
  • refuses an offer by the agency that would not constitute constructive dismissal
  • is subject to a disciplinary suspension
  • is not assigned to perform work for a client of an agency because of a strike or lock-out at the agency

An assignment employee may also have a right to mass notice of termination of eight, 12 or 16 weeks. Assignment employees may have a right to mass notice of termination if 50 or more have their employment terminated by their agency in a single four-week period because their assignments at a single client’s establishment ended.

6. Severance

Temporary assignment employees generally have the same rights as other employees to severance pay. They are entitled to severance pay if their employment is severed, they have been employed for at least five years and certain other conditions are met. (see “Severance Pay” for more information).

However, some severance pay some rules apply only to assignment employees:

  • To calculate the amount of severance pay an assignment employee is entitled to receive:
    • Either, in the case of a severance other than that results from a lay-off going on for 35 weeks or more in a 52-week period, take the total amount of wages earned by the assignment employee for work done for clients of the agency during the 12-week period ending on the last day the employee did work for a client of the agency
    • or, in the case of a severance that results from a lay-off going on for 35 weeks or more in a 52-week period, take the total amount of wages earned by the assignment employee for work done for clients of the agency in the 12 weeks before the first day of the lay-off
  • divide the amount of severance by 12
  • multiply the result in 2 above by the lesser of 26 and the sum of:
    • the number of years of employment the employee has completed; and
    • the number of completed months of employment in the incomplete year, divided by 12.

A severance of employment may be triggered by a lay-off that lasts for 35 weeks or more in a 52-week period. An assignment employee is considered to be on a week of layoff if he or she is not assigned by the agency to perform work for a client of the agency during that week. A week is not counted as a week of layoff (i.e., is an “excluded” week) if, for one or more days, an employee:

  • is not able to work;
  • is not available for work;
  • refuses an offer by the agency that would not constitute constructive dismissal;
  • is subject to a disciplinary suspension; or,
  • is not assigned to perform work for a client of an agency because of a strike or lock-out at the agency.

See when severance occurs for how a lay-off results in the severance of employment.

7. Protections from Reprisals by a Client of an Agency

As the employer of an assignment employee, a temporary help agency is not allowed to penalize an assignment employee for doing things such as asking questions about his or her ESA rights, filing a claim under the ESA or otherwise asserting his or her rights.

In addition, a client of a temporary help agency is not allowed to penalize a temporary help agency assignment employee because, for example, he or she has asked about his or her ESA rights, asserted those rights, or asked the client or the agency to comply with the ESA.

That means a client is not allowed to:

  • intimidate the employee
  • refuse to have the employee perform work or to allow the employee to start an assignment
  • terminate the assignment of the employee
  • otherwise penalize or threaten to penalize the employee

8. Enforcement of Employment Rules:

Employees who believe their agency is not complying with the ESA, or that the agency or a client of the agency has penalized them for, among other things, asking about or for their ESA rights, may file a claim with the Ministry of Labour. (See Filing an Employment Standards Claim for more information.)

If there are violations of some of the rights specific to assignment employees, the Ministry of Labour can take certain actions:

  • If an agency has charged an assignment employee or a prospective assignment employee a prohibited fee, an employment standards officer may issue an order to recover the fees for the employee
  • If an agency has interfered with the assignment employee getting direct employment with a client of the agency or prevented a client from providing a job reference for an assignment employee, and the assignment employee has suffered damages as a result, an officer may order compensation for any loss incurred
  • If a client of the agency has penalized an assignment employee, an officer may issue an order for compensation for any loss incurred and/or reinstatement in the assignment

Supports and Resources for Temporary Agency Workers

Temporary agency workers can, as mentioned, file an Employment Standards Claim with the Ministry of Labour. In addition, workers can turn to community resources that offer legal information and supports:

  • The Workers’ Action Centre describes itself as a “a worker-based organization committed to improving the lives and working conditions of people in low-wage and unstable employment”. Their Workers’ Rights Information Line can be reached at (416) 531-0778
  • The Community Legal Education of Ontario (CLEO) provide excellent, easy to read information sheets on a variety of legal topics, including Employment

Find Temporary Agencies

Online, Employment Agencies can be found using a Google search, or on online listings such as this list of Employment Agencies, or this Recruitment Agencies list, which can be sorted by sector or location. To ensure that you are signing up with quality agencies, look for reviews of agencies on sites such as Yelp and consider checking whether your agency is registered with the local Better Business Bureau (BBB).

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Ask the Employment Specialist: How to handle shocking interview questions

Angry businesswoman arguing with businessman about paperwork faiDear Joanna,

I went for an interview at a large pharmaceutical company for an account manager position. The interview asked me the strangest question: If I was part of a group of 10 who were bound in chains in the middle of the room, how would I answer the phone when it rang at one of the desks far away from the chained group? I was caught off-guard. I responded that I would ask everyone to hop together towards the phone and the closest member would pick up the phone. I didn’t get the job.

Any thoughts on how to prepare and handle these weird questions that seem to have no relevance to the job?

Signed: Stranger than Strange (SS)

Dear SS,

In an article on this topic, Globe & Mail reporter David Kennedy explains that Canadian employers are starting to ask these types of challenging and strange interview questions to test a candidate’s critical thinking and problem-solving skills. Google and other large cutting edge has been doing this for a long time in their interviews.

The article quotes Scott Dobroski, associate director of corporate communications at Glassdoor. “Employers are looking to test a candidate’s critical thinking skills, as well as how they problem-solve on the spot and how they handle an unexpected challenge.” These employers aren’t necessarily looking for a right or wrong answer, adds Dobroski, who clarifies that employers are trying to see is how you can think out loud and come to your best solution on the spot. Dobroski suggests that the best way to answer is to take a minute, breathe, think about how the question and related your response back to the position that you’re interviewing for.

Glass Door presented the top 10 strangest interview questions asked by leading companies:

1. “What would you do if you were the one survivor in a plane crash?” — an Airbnb trust and safety investigator job candidate was asked.

As with all the oddball questions, interviewees should relate their answers back to the workplace, Dobroski noted. In this case, a potential response could include how to ensure the survivor’s safety, as well as checking the rest of the plane to make sure there were no other survivors. Asking about nearby resources, such as radio or cell phone towers, could also help show the interviewer that the applicant can think ahead and plan for emergencies.

2. “What’s your favorite ’90s jam?” — a Squarespace customer care job candidate was asked.

While this might seem goofy, Dobroski notes that this open-ended question is a way for a candidate to show off their positive qualities. “I could answer, ‘All Star’ by Smash Mouth. This reminds me to keep reaching for the stars,'” Dobroski said. “These can be very short responses, as long as you relate it back to the workplace.”

3. “If you woke up and had 2,000 unread emails and could only answer 300 of them, how would you choose which ones to answer?” — Dropbox rotation program job candidate was asked.

This is the type of situation that almost everyone deals with today, but it also allows the candidate to show how he or she would prioritize in a potentially stressful situation, Dobroski noted. Candidates could note that they’d search for names of people and subject line terms that would need attention first, for example.

4. “Who would win in a fight between Spiderman and Batman?” — Stanford University medical simulationist job candidate was asked.

This is a circumstantial type of question where a candidate could ask the interviewer for more information, such as whether the fight is in a cave (giving Batman an edge) or the top of a building (Spiderman). “This shows how you assess an unexpected challenge,” Dobroski noted. Giving a one-word answer such as “Spiderman” isn’t what employers want to hear (no matter how much you love Spidey.)

5. “If you had a machine that produced $100 dollars for life, what would you be willing to pay for it today?” — Aksia research analyst job candidate asked.

Candidates could ask the interviewer for more information, such as whether there is only one of these machines available or if there’s a glut. Asking about whether there is risk involved — such as whether the owner could be targeted by criminals — could also help show analytic skills, Dobroski noted.

6. “What did you have for breakfast?” — Banana Republic sales associate job candidate.

This sounds like small talk, but it allows the interviewer to gauge whether the candidate is an upbeat person and can relate to other people. Sales associates are asked questions all day long by customers, and keeping upbeat energy is important.

7. “Describe the colour yellow to somebody who’s blind.” — Spirit Airlines flight attendant job candidate was asked.

This question tests a candidate’s sensitivity and how they gather information. An applicant could ask whether the person is partially blind and when they became blind, helping to formulate an answer and deal with someone’s disability. “There are times when they have to work with passengers with special needs,” Dobroski noted.

8. “If you were asked to unload a 747 full of jellybeans, what would you do?” — Bose IT support manager job candidate was asked.

Unloading a plane full of jellybeans is no small task, so this allows a candidate to show off their project management skills. An interviewee could ask what the budget is, when the deadline is for unloading the plane, and whether they have machinery or staff to work with. That will help demonstrate the candidate’s ability to think through all the possible dimensions of the challenge.

9. “How many people flew out of Chicago last year?” — Redbox software engineer II job candidate was asked.

This question for an entry-level engineering job is, not surprisingly, geared toward assessing a candidate’s analytic skills. The interviewee could walk through their thinking, such as how many flights go in and out of Chicago each day, how traffic surges at the holidays, and come up with an answer. The interviewer isn’t interested in the correct answer, Dobroski noted. Rather, it’s all about how a candidate handles such problems.

10. “What’s your favourite Disney Princess?” — Cold Stone Creamery crew member job candidate was asked.

This question is all about getting a candidate to show off their personality. Responses should link back to the business, Dobroski noted. “You might say, ‘I like Cinderella. She epitomizes someone who works hard, is well liked and has overcome some challenges. That’s how I approach work,'” he said.

The bottom line about answering difficult unexpected questions is to stay calm and confident, to think through the answer out loud and take a risk trying to figure out the answer. The right answer is a lot less important than the process of answering the question.

Joanna

JVS Toronto

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