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Equity in WFA & SERLO / Équité dans le RE et le SEMPMD

Key Concepts & Legal Basis

This site was cocreated by several interdepartmental employment equity networks. It relies on Public Service Commission Guidance and legal provisions form the foundation of Workforce Adjustment (WFA) and the Selection of Employees for Retention or Lay-Off (SERLO) process. Understanding these principles can help ensure compliance requirements and equity considerations are met.

Workforce Adjustment (WFA)

WFA is the mechanism by which the federal public service manages workforce reductions. When the Deputy Head determines that the services of "some but not all" employees in a specific unit are no longer required, the SERLO Process is initiated. WFA decisions affect employee rights and organizational integrity. Clear rules prevent arbitrary or inequitable decisions.

SERLO (Selection of Employees for Retention or Lay-Off):

SERLO is the competitive administrative process which occurs during a WFA. It requires using a merit-based selection process governed by the Public Service Employment Regulations (PSER). For Employee Networks and equity-seeking groups, the SERLO process is an important area of concern. If merit criteria are defined too loosely, or if asset criteria are implemented without an equity lens, the process can inadvertently perpetuate systemic barriers.

Why Equity Matters in WFA and SERLO:

Employment equity is a legal and ethical requirement in WFA and SERLO processes. Decisions made during workforce adjustment have a decisive impact on careers and psychological safety. Failure to integrate equity leads to systemic discrimination, human rights complaints, grievances, reputational damage, and increased under-representation of designated groups, particularly Indigenous and racialized employees. Equity obligations do not diminish during budget reductions; they become more critical when job security is at stake. WFA and SERLO must be designed and implemented as equity processes, not treated as separate administrative steps.

Regulatory and Legal Framework:

To ensure SERLO processes do not create barriers for systemically marginalized communities, departments must adhere to the following:

  • Public Service Employment Act (PSEA) s. 64: The authority to implement a WFA comes from the PSEA. Section 64 allows Deputy Heads to lay off employees due to lack of work, discontinuation of a function or transfer or work or funds. It confirms that layoffs are a management right, but the selection of individuals must be merit-based.
  • Public Service Employment Regulations (PSER) s. 21: Once a reduction is announced, the PSER dictates how it will occur. Section 21 mandates that the selection of employees for retention be based on merit. It also requires a bias assessment of the selection method before the process begins.
  • Employment Equity Act (EEA) s. 5: Requires the employer to identify and eliminate employment barriers against the four designated groups. This duty persists during downsizing.
  • Canadian Human Rights Act (CHRA) s. 7 & 15: Prohibits adverse effect discrimination (where a neutral rule has a disproportionately negative impact on a protected group). This governs the application of operational requirements like availability or mobility.
  • National Joint Council (NJC) Workforce Adjustment Directive: collective agreement provisions which outlines the roles and responsibilities of the employer and the rights of affected employees.
  • Related statutes and instruments: Privacy Act, Official Languages Act, Public Service Official Languages Appointment Regulations, and the Public Service Official Languages Exclusion Approval Order.

Roles and responsibilities

  • Treasury Board Secretariat (TBS) OCHRO: sets WFA policies/directives; provides guidance and monitoring.
  • Public Service Commission (PSC): SERLO regulatory framework and guidance; official languages exclusion approval order; priority entitlements; oversight and monitoring of SERLO and priority application.
  • Deputy Head and departmental management: HR planning; implement WFA (including SERLO, if required); collaborate with TBS and PSC.

The SERLO Process: Steps, Actions and Equity Considerations:

The SERLO process, as described by PSC, has fourteen steps. The table below outlines each step, the purpose, required actions, references, and equity considerations

Step Purpose Required actions and key requirements References Equity considerations
1. Determine the desired current and future state of the organization Establish the organizational context, programs, services and priorities to inform WFA and possible SERLO. Consult departmental and HR plans. Conduct an environmental scan and workforce analysis, including representation rates of Employment Equity designated groups; identify skills gaps for now and the future. PSC SERLO guide (Step 1). Use workforce data on representation to inform planning and mitigate adverse impacts on designated groups through evidence‑based decisions.
2. Determine the affected part(s) of the organization Identify the organizational parts where WFA will occur and where SERLO may be required. Define the section, division or directorate; geographical area; program or type of work for each affected part. Clear definition of affected parts supports transparent, consistent application across groups and locations. Apply PSEA s. 64 to confirm when lay‑off and selection apply. Ensure the definition of the affected part is based on organizational structure and function, not on incumbents’ characteristics. PSEA 64(1), 64(2); PSC SERLO guide (Step 2). Clear definition of affected parts supports transparent, consistent application across groups and locations.
3. Identify the positions and affected employees Define the scope of employees included in SERLO. Identify positions of the same occupational group and level performing similar duties within the affected part(s). Include substantive incumbents on acting, assignment, secondment or leave. Exclude unique positions, specified‑term employees, those with accepted job offers or confirmed retirements/resignations, executives on special deployments, and temporary resources. PSC SERLO guide (Step 3); Apply inclusion and exclusion criteria consistently to avoid unintended barriers; ensure decisions are based on objective similarity of positions and duties.
4. Notify TBS‑OCHRO, bargaining agents, and employees Ensure early, thorough consultation and formal notification. Notify TBS‑OCHRO in writing and in confidence before announcement, per WFAD. Notify National Heads of the affected bargaining agents in writing and in confidence. Then notify affected employees in writing; clarify roles and responsibilities aligned to HR delegation. Maintain ongoing communication about career transition for executives with TBS‑OCHRO’s Leadership Policies Division. PSC SERLO guide (Step 4). Early consultation with bargaining agents promotes transparency and supports equitable treatment; consistent written notices reduce information barriers.
5. Conduct classification and staffing activities Ensure positions reflect the current/future work; use staffing strategies to minimize affected employees. Update work descriptions and classification. Create new positions if required; abolish vacant positions. Consider staffing new positions first to place affected employees. In appointment processes, organizational needs can include placement of affected employees; request priority clearance per PSEA s. 43 where applicable. PSC SERLO guide (Step 5). Using staffing to reduce the number of affected employees can mitigate disproportionate impacts; ensure fair access by limiting areas of selection appropriately and using organizational need to place affected employees.
6. Establish a voluntary departure program (VDP) Offer voluntary departure where permitted by WFAD/collective agreements to reduce involuntary lay‑offs. Establish and communicate the VDP consistent with applicable directives and appendices; implement before proceeding to SERLO where appropriate. PSC SERLO guide (Step 6). A well‑communicated VDP enhances employee agency and can lessen impacts on equity‑seeking groups when combined with transparent criteria.
7. Determine the qualifications, requirements, and needs Set the most relevant essential and asset qualifications, organizational needs and operational requirements for the work to be performed. Explicitly leveraging Employment Equity as an organizational need allows SERLO to address representation gaps within the bounds of PSER. Use Attainment Rate (AR) and, where appropriate, documented projections to identify equity gaps and avoid reliance on outdated workforce availability data. Scrutinize operational requirements (e.g., 24/7 availability) under the Duty to Accommodate and CHRA; avoid asset criteria that reinforce past systemic barriers (e.g., acting experience). PSER 22(2); Explicitly leveraging Employment Equity as an organizational need allows SERLO to address representation gaps within the bounds of PSER.
8. Determine the assessment methods Choose appropriate assessment methods for the established factors. Managers may use any assessment method they consider appropriate. Second official language proficiency must be assessed using the same methods as for appointments. PSER 22(4), 22(6); Select methods that are valid and fair; avoid tools that introduce unnecessary barriers, and align language assessment to appointment standards to protect official languages rights.
9. Identify biases and barriers Evaluate selected assessment methods and how they will be applied to identify and remove or mitigate biases and barriers. Conduct a mandatory evaluation before applying any assessment method to identify and remove or mitigate biases and barriers that disadvantage equity‑seeking groups; document the evaluation and mitigation in the SERLO file. PSER 22(5); Systematically reviewing assessment methods is a mandatory equity safeguard built into SERLO. Document findings and adjustments.
10. Inform employees Provide written information to each group of employees participating in SERLO. Inform, in writing, the qualifications, requirements and needs; assessment methods; and the ability and process to request accommodation measures. Consider sharing definitions, selection factors, process timing, and available supports to increase transparency. PSER 22(3); Explicit notice about accommodations reduces barriers for persons with disabilities and other equity‑seeking groups; transparency supports fairness.
11. Assessment of employees Assess which employees meet the established qualifications, requirements and needs. Ensure retained employees meet established pass marks or ratings. Assess in the official language chosen by the employee. SLE results are valid indefinitely while the employee remains in their substantive position and the linguistic profile has not been raised above their skill level; re‑test where the most recent SLE does not meet the position’s requirements. If second official language proficiency is assessed, use the same methods as appointments. PSER 22(7); Respect the language of choice for assessment and accommodate as required to support equitable participation; maintain consistency in applying pass marks.
12. Selection of employees Select employees for retention based on established factors; document decisions. Retained employees must meet essential qualifications including official languages; managers may also require asset qualifications, organizational needs and operational requirements. Selections are based only on the factors established for SERLO; keep records of reasons for retention or lay‑off. Decisions can weigh one or multiple elements and may vary across retained positions. PSER 22(8); Using Employment Equity as an organizational need can help address representation gaps within established factors; ensure consistent, documented application to avoid bias.
13. Provide written notice Issue formal notice before any lay‑off and inform retained employees. Before laying off under PSEA 64(2), conduct an adverse impact analysis (e.g., GBA+) to ensure decisions do not disproportionately affect any equity group. Then provide written notice stating lay‑off, reasons, right to complain under PSEA 65(1), end‑date of services, and lay‑off date or that it will be provided when known. Include GRJO or opting status and access to WFAD/WFA options. Notify in writing those not selected for lay‑off that they are to be retained. PSER 21(1), 21(2); Clear, complete notices ensure access to recourse and options for all employees, supporting procedural fairness.
14. Record the reasons for the selection Ensure transparency and accountability. Document reasons for selecting or not selecting each employee for lay‑off; records support discussions with employees and any grievances or complaints to FPSLREB and PSC oversight. PSER 22(10); Robust documentation is an equity safeguard that enables review of decisions, helps detect systemic barriers and supports recourse.

Additional operational guidance

  • SERLO is not an appointment process. Managers may use previous assessment information where appropriate; requests for second language evaluation must align with official languages requirements and appointment standards for second language assessment.
  • Language rights in assessment. When assessing knowledge or use of English, French or both, or a third language, the assessment must be conducted in that language. Employees must be assessed in the official language of their choice when assessing qualifications, requirements and needs.
  • Volunteers. PSER provides for volunteers within SERLO processes. Ensure any use of volunteers is consistent with applicable regulations and directives.

Communications to employees

Provide timely, plain‑language written messages that cover: the established qualifications, requirements and needs; the assessment methods selected; and how to request accommodation measures. Ensure assessments are conducted in the official language chosen by the employee and, where second‑language proficiency is assessed, that the method is the same as for appointments. Include timing and supports available such as Employee Assistance Program and Informal Conflict Management services; and formal notices of retention or lay‑off. Before issuing notices, conduct an adverse impact analysis (e.g., GBA+) to ensure decisions do not disproportionately affect any equity group.

Documentation and records

Maintain complete files that demonstrate compliance with PSER, including: planning artifacts; analyses of biases and barriers; assessment results; selection rationale for each employee; and copies of all notices. In addition, ensure the file contains:

  • the bias/barrier evaluation for each assessment method before use (PSER 22(5));
  • the reasons for selection or non‑selection for each employee (PSER 22(10));
  • copies of lay‑off notices and retention notices (PSER 21(1) and 21(2));
  • evidence of any adverse impact analysis conducted prior to final decisions;
  • evidence of any GBA Plus or adverse impact analysis conducted before final decisions;
  • confirmation that organizational needs (including employment equity) were applied consistently and documented with current workforce availability or attainment rate data.

These records support transparency, grievances, complaints to FPSLREB, and PSC oversight.

Responsibilities after SERLO

  • Priority entitlements: Where a GRJO is provided and an employee becomes surplus, register and manage priority entitlements promptly and document placement actions.
  • Workforce adjustment or career transition activities: Implement GRJO and surplus priority entitlement or, where no GRJO, provide opting options per WFAD or collective agreement appendices; consider alternation where applicable and ensure alternation opportunities are centralized, transparent, and monitored for equity outcomes.
  • Classification activities: Complete updates to positions, abolitions and creations as required.
  • Recourse. Employees may file a complaint regarding lay‑off under PSEA s. 65(1); ensure the SERLO file is complete to support FPSLREB proceedings and PSC oversight.

Defining Merit Criteria:

In a SERLO, merit is defined by the Deputy Head through three components:

  • Essential Qualifications: The baseline skills, knowledge, and abilities required to perform the duties of the remaining positions. These are non-negotiable and must be met by all employees being considered for retention. Example: Required certification, language proficiency, or technical ability directly tied to the job.
  • Asset Qualifications: Additional skills or experience that may benefit the organization now or in the future. Asset criteria should be applied carefully to avoid perpetuating systemic barriers. If the asset requires prior experience in tasks typically linked to promotional opportunities, it may disadvantage equity groups historically excluded from such opportunities. Asset qualifications should emphasize transferable skills rather than experience gained solely through acting or developmental assignments. Example: Ability to lead projects (demonstrated through various contexts, not only acting roles).
  • Organizational Needs: Strategic priorities identified by the organization that can legitimately influence retention decisions. These may include employment equity objectives, official language requirements, or commitments under land claims agreements. Organizational needs must be documented and applied consistently, based on current workforce data and legal obligations, not personal preference. Example: Retaining employees from designated employment equity groups to meet representation goals.

Data Challenges and Success Rates

Workforce Availability Estimates (WAE) are census-based measures of labour market availability for designated groups. Current benchmarks for representation are based on outdated census data from 2016 or 2021. By 2025, these benchmarks underestimate actual labour market availability, particularly for Indigenous and racialized employees, creating a false impression of progress and minimizing real under-representation. The attainment rate (AR) is a preferred metric for equity analysis because it accounts for group size and labour market availability, enabling fair comparisons. Barriers around Work Force Availability have been known for years:

  • TBS Response to the Call to Action: TBS  itself acknowledge issues with its use of WFA data and proposed a additional 5% rate: “TBS is also exploring the use of WFA combined with a Turnover Rate of 5% plus an additional rate of 5% to set meaningful but realistic targets. The additional 5% rate accounts for the time lag in capturing demographic changes (e.g., the growing racialized population in Canada).”
  • Employment Equity in the Public Service of Canada: TBS acknowledged that WFA is not an effective indicator of where organizations are in its Employment Equity Report by stating that “to ensure that we continue to close gaps and sustain progress towards representation, WFA must be regarded as a floor and not a ceiling.”
  • Chapter 2: Data Justice - Canada.ca: A comprehensive review of the WFA was conducted in the recent Employment Equity Act Task Force Review, “Introduced by the federal public service to take into account the specific requirements under the Public Service Employment Act in determining availability, WFA has become a primary example of how a measurement tool can embed the exclusionary practices that employment equity seeks to uproot. “
  • Report 5—Inclusion in the Workplace for Racialized Employees: The issue of barriers arising out of the WFA was observed by the Auditor General in the recent Inclusion in the Workplace for Racialized Employees” audit: “the federal core public administration uses workforce availability data as the benchmark to assess sufficient representation of the 4 designated employment equity groups in its workforce. While this data is based on labour market information obtained through the most recent Statistics Canada Census of Population and Canadian Survey on Disability and is adjusted for factors such as citizenship, location, age, and education, it can lag up to 8 years behind the demographic realities of Canadian society. For a growing racialized population, the risk can be underrepresentation in workforce availability data that in turn leads to understated representation goals.” It also commends Justice for using projections, “The Department of Justice Canada went even further and developed projected representation rates based on existing labour force projections produced by Statistics Canada, Canada’s national statistical agency. These projections were updated to address the lag in the reporting of demographic information. The projections became the new representation benchmarks for the organization in its 2022–25 employment equity plan.” Note that Justice used the Demosim model which was found to not be an effective predictor in the previously mentioned Task Force Report.
  • Transcripts & Minutes - Standing Senate Committee on Human Rights (40th Parliament, 2nd Session) Issues around the WFA were also raised at the Standing Senate Committee on Human Rights in 2009. “Before the 2006 Census, they were using the 2001 Census, which was eight years old. Even eight years later, they were unable to comply with the old requirements. We have proposed to the Privy Council and to the federal departments and agencies a method of forecasting that will save us the pain of waiting for 10 years. As it is, departments do not have to comply because every year we are behind in the calculation of how to meet the WFA targets. If we had a forecasting system, we would know the number for a given future year.”
  • Embracing Change in the Federal Public Service: These barriers were also highlighted in the Embracing Change Report in 2000: “Hence, representation goals must be set higher than the LMA (Labour Market Availability); if not, the government will be faced with an intense game of catch-up by the time the new LMA is calculated. In other words, the LMA measure is a floor on which to build diversity.”

Monitoring and Self-Identification

Monitoring SERLO outcomes by equity group and classification is essential to detect patterns of inequality and intervene before decisions are finalized. Departments should track who is selected, excluded, and retained, and provide clear explanations of how equity and accommodations were considered. Self-identification forms must be modernized to include updated terminology and under-represented subgroups such as Indigenous, Black, racialized, persons with disabilities, and 2SLGBTQI+. Updated forms should be distributed to all SERLO candidates to enable accurate analysis.

Structural Barriers and Flexibility

Neutral rules such as seniority, language profiles, and outdated WAE tables can produce inequitable outcomes if applied without bias checks or updated data. PSER requires managers to identify and remove systemic barriers during SERLO. Rigid application of language requirements disproportionately affects racialized employees who historically had less access to full-time language training. Flexibility exists within current frameworks, including non-imperative bilingual profiles and transitional language pathways. These measures should be used to prevent language from becoming a structural barrier while maintaining compliance with official languages policy.

Recommendations

  • Update WFA Projections: Use formula-based projections when 2021 data is dated.
  • Adopt Bias-Resistant Grids: Record all documentation to enable recourse.
  • Embed EE Needs Explicitly: Where appropriate, EE membership should be a qualification.
  • Use Non-Imperative Staffing: Include strong language training plans and milestones.
  • Enhance Alternation & Departure Transparency: Use centralized platforms and monitor equity outcomes.
  • Institute Regular Reviews: Provide AR/WAE briefings and track plans.
  • Document for Recourse: Keep records of criteria, mitigations, and compliance measures.

Links & Resources

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