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Hiring older workers, a legal perspective


Hiring older workers Hiring older workers seems to be part of an employer bandwagon. The shiny, new era of the elimination of mandatory retirement policies in British Columbia is but a few weeks old. That legal change seems to have come at an opportune moment for older workers.

Regular readers of my Legal Ease column will know that, on January 1, 2008 the concept of mandatory retirement in BC became a thing of the past . Our Human Rights Code was amended to extend human rights protections to workers who are 65 years of age or older.

The primary impact of that change was to render unlawful retirement policies triggered solely by the advancing age of employees. Except in very rare circumstances, employers can no longer rely on the simple fact of aging as the basis for imposing retirement.

According to Statistics Canada, that change in the law arrived just in time. Our national producer of statistics estimates the employment participation rate (the proportion of the population over the age of 15 which is actively working) will drop to 58 percent by 2031. As of 2005, the participation rate was 67 percent.

If that figure is accurate, we’re either going to have to produce a whole lot more Canadians in the next 23 years or consumers will have to get accustomed to scarcer products and services. In the meantime, corporate CEOs and business leaders are looking towards older workers as a remedy for the body crunch.

A BDO Dunwoody CEO/Business Leader poll, conducted by COMPAS Inc. just a few weeks ago, indicates business leaders are intrigued by the possibilities presented by older workers. According to BDO’s report, “Keeping Older Workers Essential for Success – Retirement and Retention Strategies That Work”, the majority of business leaders are convinced that keeping older workers in the fold will be the key to business success.

According to the business leaders surveyed, older workers provide knowledge, mentoring and workforce stability. No big revelations there. What is, perhaps, interesting is the way business leaders seem to have adjusted their tune at a moment when labour market forces really compel that very result.

Jaded reactions aside, the COMPAS Inc. poll suggests Canadian businesses are firmly in the corner of the aging workforce. They strongly agree that keeping employees past the traditional age of retirement helps make available workers with knowledge and experience to mentor the young, and that companies that retain older workers will benefit because older workers are more stable and knowledgeable.

Many of the comments offered by business leaders supported the concept that, in the future, business success will depend heavily on the experience, loyalty, and “institutional IQ” offered by older workers.
One respondent to the poll summed it up best, saying “It is rather sad to see major companies screw themselves in their efforts to cut costs, by eliminating knowledgeable and dedicated staff”.

The business leaders polled soundly rejected the concept that companies are harmed by the higher salary and benefit costs associated with older workers. They also dispelled the notion that, when retaining older employees, bringing in “new blood” and new thinking becomes difficult.

One interesting tidbit that emerged from the COMPAS Inc. poll was that business leaders see non-monetary incentives as the key to keeping older workers actively employed. They seem to have a firm belief that tailored work schedules, meaningful work, and respect for employees are the key perquisites for retaining older workers.

It isn’t entirely clear whether employers actually like older workers or if they simply prefer them to their younger counterparts. As one respondent put it, “The younger generation of today is fed unrealistic expectations, but wanders aimlessly around for that unique job, with very high salary expectations, but not the ethic to earn it”.

Regardless of the reasons, business leaders seem to be crowding onto the older workers’ bandwagon. Given the age range of this pool of labour, the band playing on that wagon is probably the Beatles. That’s perhaps fitting now that employers are singing to them, “We love you, yeah, yeah, yeah”.

Robert Smithson is a partner at Pushor Mitchell LLP in Kelowna practicing exclusively in the area of labour and employment law. For more information about his practice, log onto . If you have a labour or employment question for him to answer in a future “Legal Ease”, email him at . This subject matter is provided for general informational purposes only and is not intended to be relied upon as legal advice.

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