This presentation explores the the changing demographic & legal rules surrounding our aging workforce and how employers can adapt and comply with these changes.

1. Managing the Aging
Workforce
By
J. Geoffrey Howard Michael J. Schalke
geoffrey.howard@gowlings.com michael.schalke@gowlings.com
(604) 891 2279 (604) 891 2282

2. 2
Introduction
Why should employers be adapting to the aging
workforce? The demographics are clear:
• The average age of the working age population is
increasing
• Participation rates of older workers have been climbing
steadily
• The average actual retirement age has risen to
approximately 63 today and projected to be 66

3. Introduction
The legal rules have changed dramatically:
• Mandatory retirement is no longer legal
• These amendments ban any kind of discrimination
against older workers
• Human Rights Tribunals apply the ban broadly to:
• partners in professional firms
• contractors
• This ban is subject to narrow exceptions:
• Bona fide occupational requirement
• Part of a bona fide pension or benefit plan
3

4. Introduction
Learning to love the aging workforce: employers
are going to have to:
• Embrace retaining, developing and hiring older
workers; while
• Avoiding the pitfalls of age discrimination
4

5. Navigating the Ban on Age Discrimination
Hiring: it’s easy to fall into “ageist” ways of
describing the ideal candidate
• Steer clear of advertising for “young”, “energetic”
candidates
• Do not ask for candidates’ age and, if volunteered, do
not record
• Do adopt an objective set of “must have” and “nice to
have” criteria
5

6. Navigating the Ban on Age Discrimination
Beware: once a plaintiff shows a “prima facie
case”, the onus shifts to the employer to prove
age was not a factor in the hiring decision
• Employers have to record objective reasons why the
successful candidate was selected
• Job requirements may need to be adjusted
6

7. Navigating the Ban on Age Discrimination
Promotion and Training:
• Economically, it makes much more sense to invest in
training or promoting a 30 year old than a 60 year old
• But the HRC requires employers to ignore this
economic imperative
• As with hiring:
• ensure workers of all ages are aware of the opportunity
and able to apply
• have objective selection criteria and use them
7

8. Navigating the Ban on Age Discrimination
Benefits: For the moment, employers and their
insurers still have considerable scope to
differentiate based on age in benefit and pension
plans.
• Both employer-provided and insured benefits can
discriminate based on age
• Such age limits must be part of a “bona fide” pension
or benefit plan
• Recent cases indicate that pension plans can require
workers to retire
8

9. Navigating the Ban on Age Discrimination
Termination of Employment:
• When selecting employees for termination, age or
proxies cannot be used as criteria
• Employers can still offer retirement incentives for
workers meeting age-based criteria
• Employers need to enhance performance
management of older workers
9

10. Taking a Proactive Strategic Approach to the Aging Workforce
Aging workers can be an advantage:
• They are growing in number and willingness to work
• They often have valuable experience
• Older workers offer advantages which offset some of
their disadvantages
• e.g. BMW
10

11. Taking a Proactive Strategic Approach to the Aging Workforce
When planning for departures be creative.
• Employers are allowed to ask about employees’
retirement intentions
• You can use pension and benefit plans to encourage
older workers to retire
• Remember, surveys show that many older workers
would prefer to work less or more flexibly, e.g.:
• becoming consultants or casual workers who work “as
needed” or part-time only
• converting to part-time or fixed term hire status
11

12. Thank You
Michael Schalke
Tel: (604) 891 2282
Email:
michael.schalke@gowlings.co
m
J. Geoffrey Howard
Tel: (604) 891 2279
Email:
geoffrey.howard@gowlings.com
DM#1285555
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