On Monday, an article in the Globe and Mail reported that composition of who is in the workplace has taken a symbolic turn.   On the paper’s front page, Demographics Reporter Joe Friesen, writes that “at some point this year, the number of 15-24 year olds will slip below the number of 55-64 year olds for the first time, according to Statscan’s demographic division”. He goes on to say that, “for people on either side of this ratio – those approaching the final phase of their careers and those whose working life is just beginning – the spectre of an aging society raises interesting questions”.

This article prompted me to think about what these “interesting questions” are from an employment law perspective.  Here are a few that immediately came to mind:

• If the workplace is increasingly populated by older employees, are employers prepared and sufficiently open minded to consider new requests for accommodation under the Human Rights Code?  While this question has been actively considered since the abolishment of the age definition in the Code which permitted mandatory retirement, it has additional resonance when the number of older employees outnumber much younger ones.  In addition, as we have seen the outer edges of family status accommodation extend in the last year, we can probably expect the same of accommodation for an older worker.  Working at home, modified work hours, even job sharing may all be up for accommodation grabs.
• Some studies show that while older workers would like to remain active in the workplace, they wish to do so in a manner that is something other than full time employment.  Employers may wish to retain these employees as they are knowledgeable, skilled and have institutional memory.  At the same time, they will need to think creatively on how to fashion new types of jobs such as project based, time based, and the “substitute” employee to replace an employee on an extended leave and so on.  How will this be captured in contracts and in a manner that is consistent with the statutory requirements?   As you review the Employment Standards Act, it is clear that many of the provisions do not anticipate this new model of work, and instead reflect a traditional operation of the workplace.
• If employers wish to have a diverse workplace in terms of age, will they need to engage in special programs to attract younger employees and will hiring be skewed to favour these employees?  How will the Human Rights Code implications of this be managed?   Will younger workers be employed in the traditional sense, or will they be retained as consultants and independent contractors?  If so, what are the human rights implications of a workplace population that is stratified on the basis of age?
• One implication of this demographic snapshot is that if there are more older workers nearing retirement, and fewer younger ones to replace them, employers may find it difficult to hire and then retain new employees.   What kinds of activities, programs and inducements will employers need to offer prospective employees in a tight labour market and what will the contractual arrangements to document these arrangements look like?  For example, will employers need to include provisions in employment contracts that say on the one hand, the new employee will receive a signing bonus of $50,000, but on the other say that if the employee leaves within two years, the signing bonus must be repaid?

Food for thought for employers, employees and employment lawyers alike.

Janice Rubin