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Equity in WFA & SERLO / Équité dans le RE et le SEMPMD (view source)

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The following concepts 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.
 
The following concepts 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.
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'''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.
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==== Workforce Adjustment (WFA) ====
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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.
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'''SERLO (Selection 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.
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==== SERLO (Selection for Retention or Lay-Off): ====
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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.
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'''Regulatory and Legal Framework:''' To ensure SERLO processes do not create barriers for systemically marginalized communities, departments must adhere to the following:
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==== Why Equity Matters in WFA and SERLO: ====
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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.
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==== Regulatory and Legal Framework: ====
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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 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.
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* '''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.  
 
* '''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.
 
* '''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.
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'''Defining Merit Criteria:''' In a SERLO, merit is defined by the Deputy Head through three components:
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==== Defining Merit Criteria: ====
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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.
 
* '''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.
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* '''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.
 
* '''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.
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'''Bias Controls Across the SERLO/WFA Lifecycle:''' Once these principles are understood. it becomes essential to identify how they are applied across the SERLO/WFA lifecycle. The following chart illustrates where bias can enter and what corrective actions are required at each stage.
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==== Bias Controls Across the SERLO/WFA Lifecycle: ====
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Once these principles are understood. it becomes essential to identify how they are applied across the SERLO/WFA lifecycle. The following chart illustrates where bias can enter and what corrective actions are required at each stage.
 
{| class="wikitable"
 
{| class="wikitable"
 
|'''Stage'''
 
|'''Stage'''
−
|'''Official Activity'''  
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|'''Official Activity'''
−
|'''Where Bias Can Enter'''  
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|'''Where Bias Can Enter'''
−
|'''Corrective Actions'''  
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|'''Corrective Actions'''
 
|-
 
|-
−
|'''Planing'''
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|'''Planning'''
 
|Determine the desired current and future state of the organization; determine the affected part(s); identify positions and affected employees; notify OCHRO/TBS, bargaining agents, and employees.
 
|Determine the desired current and future state of the organization; determine the affected part(s); identify positions and affected employees; notify OCHRO/TBS, bargaining agents, and employees.
 
|Defining the affected part(s) at a level that is not functionally justified can isolate specific employees.
 
|Defining the affected part(s) at a level that is not functionally justified can isolate specific employees.
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The 2025 Selection of employees for retention or lay-off: Guide for managers and HR specialists has a dedicated subsection titled: “Organizational need for employment equity, diversity, and inclusion” [[/www.canada.ca/en/public-service-commission/services/public-service-hiring-guides/selection-employees-retention-layoff-guide-managers-hr.html|Canada]]
 
|Document the functional rationale for the affected part(s) and link to business/HR plans; issue required written notifications to OCHRO/TBS, bargaining agents, and employees per SERLO steps.
 
|Document the functional rationale for the affected part(s) and link to business/HR plans; issue required written notifications to OCHRO/TBS, bargaining agents, and employees per SERLO steps.
 
|-
 
|-
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|Use current employment equity workforce availability and representation data to inform organizational needs; ensure compliance with Appointment Policy obligations (employment equity, official languages, duty to accommodate); respect PSC priority entitlements and order of precedence.
 
|Use current employment equity workforce availability and representation data to inform organizational needs; ensure compliance with Appointment Policy obligations (employment equity, official languages, duty to accommodate); respect PSC priority entitlements and order of precedence.
 
|}
 
|}
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==== Data Challenges and Success Rates ====
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Workforce Availability Estimates 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 the preferred metric for equity analysis because it accounts for group size and labour market availability, enabling fair comparisons. Absolute gaps penalize smaller groups and distort priorities. Federal policy and annual employment equity reports emphasize attainment rates as the standard measure of compliance.
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==== Systemic Risks and Discretion ====
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Fettering discretion occurs when decision-makers rigidly apply outdated rules or formulas instead of exercising judgment based on current evidence. In WFA and SERLO, reliance on unadjusted 2016 or 2021 WAE values particularly for Indigenous and racialized groups, despite clear evidence of growth, constitutes fettering and increases legal risk. This practice masks discrimination and undermines compliance. Processes that fail to adjust for demographic changes risk sliding from compliance into systemic discrimination or abuse of authority. Consequences include human rights complaints, abuse-of-authority claims, reputational harm, and financial liability.
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==== Corrective Measures and Projections ====
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Between 2016 and 2021, workforce availability for racialized employees in major federal organizations grew by approximately 24 percent, and this trend is projected to continue through 2026. To reflect this growth, corrective factors should be applied to WAE or attainment rates. If using 2016 data, divide racialized AR values by 1.5 and Indigenous AR values by 1.2. If using 2021 data, divide racialized AR values by 1.25 and Indigenous AR values by 1.10. Two options exist: adjust WAE before calculating AR or correct AR directly. These adjustments ensure decisions align with current demographic realities and legal obligations.
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==== Monitoring and Self-Identification ====
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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.
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==== Structural Barriers and Flexibility ====
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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.
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==== Alternance and Evaluation Practices ====
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Alternance processes must be transparent and accessible to all affected employees, not limited to those with strong informal networks. Departments should define clear criteria for alternance matches, maintain HR oversight, and monitor outcomes by equity group. Evaluation grids must be documented, bias-resistant, and explainable. They should not penalize employees for lack of access to acting roles, stretch assignments, or language training, nor for accommodations or medical leave. Employment equity should be applied as an organizational need and as a legitimate tie-breaker when candidates are relatively equivalent.
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==== Roles, Next Steps, and Key Questions ====
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Employee networks and unions should monitor WFA and SERLO impacts, highlight systemic patterns, and advocate for trauma-informed processes. HR and LR advisors must ensure compliance with legal obligations, assist managers in designing bias-resistant tools, and apply organizational needs based on equity. Senior leaders should oversee SERLO plans and insist on equity safeguards. Immediate steps include reviewing current plans for equity risks, confirming collaboration with equity networks, and clarifying guidance on language pathways and alternance. Key questions for SERLO planning include how projected WAE and attainment rates will be used, how discretion will be preserved, and how systemic barriers will be mitigated.
 
{| class="wikitable"
 
{| class="wikitable"
 
!'''Step'''
 
!'''Step'''
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|“All departments or organizations must participate in the alternation process.” (NJC WFAD, s.6.3.1) [[/www.canada.ca/en/public-service-commission/services/public-service-hiring-guides/workforce-adjustment-federal-employees.html|[canada.ca]]] — “An alternation occurs when an opting employee… exchanges positions with a non‑affected employee… under Part VI.” (NJC WFAD, s.6.3.2) [[/www.canada.ca/en/public-service-commission/services/public-service-hiring-guides/workforce-adjustment-federal-employees.html|[canada.ca]]] — “The opting employee moving into the unaffected position must meet the requirements for appointment… including language requirements.” (NJC WFAD, s.6.3.7) [[/www.canada.ca/en/public-service-commission/services/public-service-hiring-guides/workforce-adjustment-federal-employees.html|[canada.ca]]] — “Alternation should normally occur at the same group and level… or equivalent (max rate of pay no more than 6% higher).” (NJC WFAD, s.6.3.9) [[/www.canada.ca/en/public-service-commission/services/public-service-hiring-guides/workforce-adjustment-federal-employees.html|[canada.ca]]] — “An alternation must occur on a given date… no ‘domino’ or ‘future considerations’.” (NJC WFAD, s.6.3.10) [[/www.canada.ca/en/public-service-commission/services/public-service-hiring-guides/workforce-adjustment-federal-employees.html|[canada.ca]]] — “Employees not in receipt of a GRJO have 120 days to consider the three options.” (NJC WFAD, s.6.1.2) [[/www.canada.ca/en/public-service-commission/services/public-service-hiring-guides/workforce-adjustment-federal-employees.html|[canada.ca]]]
 
|“All departments or organizations must participate in the alternation process.” (NJC WFAD, s.6.3.1) [[/www.canada.ca/en/public-service-commission/services/public-service-hiring-guides/workforce-adjustment-federal-employees.html|[canada.ca]]] — “An alternation occurs when an opting employee… exchanges positions with a non‑affected employee… under Part VI.” (NJC WFAD, s.6.3.2) [[/www.canada.ca/en/public-service-commission/services/public-service-hiring-guides/workforce-adjustment-federal-employees.html|[canada.ca]]] — “The opting employee moving into the unaffected position must meet the requirements for appointment… including language requirements.” (NJC WFAD, s.6.3.7) [[/www.canada.ca/en/public-service-commission/services/public-service-hiring-guides/workforce-adjustment-federal-employees.html|[canada.ca]]] — “Alternation should normally occur at the same group and level… or equivalent (max rate of pay no more than 6% higher).” (NJC WFAD, s.6.3.9) [[/www.canada.ca/en/public-service-commission/services/public-service-hiring-guides/workforce-adjustment-federal-employees.html|[canada.ca]]] — “An alternation must occur on a given date… no ‘domino’ or ‘future considerations’.” (NJC WFAD, s.6.3.10) [[/www.canada.ca/en/public-service-commission/services/public-service-hiring-guides/workforce-adjustment-federal-employees.html|[canada.ca]]] — “Employees not in receipt of a GRJO have 120 days to consider the three options.” (NJC WFAD, s.6.1.2) [[/www.canada.ca/en/public-service-commission/services/public-service-hiring-guides/workforce-adjustment-federal-employees.html|[canada.ca]]]
 
|}
 
|}
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== Additional compliance highlights managers should document ==
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==== Intersectionality and GBA Plus Considerations in SERLO/WFA ====
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* '''Official languages as essential:''' “The essential qualifications… '''including official language proficiency'''.” (PSER, '''s.22(2)''')
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* '''Assessment competence:''' “Ensure that those conducting the assessment '''have the necessary competencies''', including official language(s).” (PSC ''Appointment Policy'') [[/syndicatafpc.ca/node/12432|[syndicatafpc.ca]]]
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* '''Duty to accommodate (disability/family status):''' “Employers… have an obligation to '''adjust rules, policies or practices'''… called the '''duty to accommodate'''.” (CHRC)
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* '''GBA Plus in staffing/assessment:''' SERLO guide embeds '''Step 9: Identification of biases and barriers''', and PSC planning commits to integrating '''GBA Plus''' to mitigate systemic barriers. [[/www.ceiu-seic.ca/alternation faq|[ceiu-seic.ca]]], [[/bunelaw.com/family-status-accommodation-in-ontario-human-rights-law/|[bunelaw.com]]]
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----
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=== Intersectionality and GBA Plus Considerations in SERLO/WFA ===
   
{| class="wikitable"
 
{| class="wikitable"
 
!Designated group / policy lens
 
!Designated group / policy lens
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|}
 
|}
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==== '''Key Questions for Managers''' ====
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'''Systemic Risk: Fettering of Discretion via Outdated Data:''' A critical legal concept in administrative law is "Fettering of Discretion." This occurs when a decision-maker rigidly applies a rule or outdated data source without considering current evidence or judgment.
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The Data Lag (2021 vs. 2025): Using 2016 or 2021 Census data to determine workforce availability (WAE) in 2025 creates a "built-in bias".
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<nowiki>*</nowiki> The Reality: The labour market for Racialized and Indigenous populations has grown significantly since 2021.
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<nowiki>*</nowiki> The Risk: Relying on unadjusted 2021 data understates under-representation. A manager might believe a team is "representative" based on 2021 numbers, while in 2025 terms, a significant gap exists.
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<nowiki>*</nowiki> Legal Implication: Refusing to adjust values despite evidence of growth fetters discretion and undermines compliance with the Employment Equity Act.
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4.2 Correction Factors for 2025
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To avoid discriminatory effects, the following correction factors should be applied to Attainment Rates (AR) or Workforce Availability (WFA) estimates during SERLO planning:
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<nowiki>*</nowiki> Racialized Groups: Divide Attainment Rate by 1.25.
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<nowiki>*</nowiki> Indigenous Groups: Divide Attainment Rate by 1.10.
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5. Data Methodology: Attainment Rates vs. Gaps
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How data is visualized drives decisions. Departments often use raw "representation gaps" (number of people), which distorts the reality for smaller groups.
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The Theatre Analogy
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<nowiki>*</nowiki> Scenario A (Small Group): A theatre has 10 seats. 0 are occupied. The Gap is 10. The Attainment Rate is 0%.
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<nowiki>*</nowiki> Scenario B (Large Group): A theatre has 300 seats. 290 are occupied. The Gap is 10. The Attainment Rate is 97%.
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Impact: Both have a "gap of 10," but Scenario A represents a total exclusion. Using raw gaps hides the severity of under-representation for Indigenous and smaller racialized groups. SERLO decisions must be based on Attainment Rates (how full the theatre is), not gaps.
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'''Public Service Employment Regulations (PSER), Sec. 21'''
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Mandates written notice of lay-off or retention and rights to complaint under the Public Service Employment Act.
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'''Public Service Official Languages Exclusion Approval Order (PSOLEAO)'''
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Enables '''non-imperative bilingual staffing''' with agreement to become bilingual within 2 years.
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'''Employment Equity Act & WAE/Attainment Rates'''
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Employers must compare workforce representation with labour market availability or Work Force AVailability and aim for 100% Attainment Rates; usage of 2021 data is mandatory for compliance.
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==== Why Equity in WFA/SERLO Matters ====
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* Career‑defining and potentially traumatic for affected employees
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* Systemic disparities if racialized or Indigenous employees are disproportionately laid‑off
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* Risk of grievances, complaints, and legal action if equity obligations are ignored
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* Advances representation goals and strengthens psychological safety
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*** e SERLO plans only with equity safeguards; provide oversight throughout.  ----
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==== Equity Safegua ====
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*
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==== Data Challenges & Adjustments ====
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* Departments often rely on '''2021 WAE data''', which under‑represents current labour market; this underestimates under-representation. [canada.ca], [[/www.canada.ca/en/treasury-board-secretariat/services/innovation/human-resources-statistics/diversity-inclusion-statistics/employment-equity-demographic-snapshot-2023-2024.html|[canada.ca]]]
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* Use '''Attainment Rates'''—Representation ÷ WAE × 100—as comparison metrics.
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* Mitigate outdated data by projecting:
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** × 1.25 for racialized groups and × 1.10 for Indigenous groups when only 2021 data is available <br />  '''s''': Approve SERLO plans only with equity safeguards; provide oversight throughout.  ----
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==== Equity Safeguards in SERLO ====
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'''1. Use of WAE & AR Data'''
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Before making any decisions, analyze under-representation by group and classification using projected WAE and AR.
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'''2. Structured Merit Assessment'''
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Implement documented assessment grids aligned with SERLO criteria. Adjust for past barriers—e.g., limited access to acting roles, language training—and ensure accommodations are applied fairly.
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'''3. Organizational Equity Needs'''
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When AR < 100%, explicitly include EE group membership as an '''organizational need''' per PSC SERLO Guide (Step 7). [[/www.canada.ca/en/public-service-commission/services/public-service-hiring-guides/selection-employees-retention-layoff-guide-managers-hr.html|[canada.ca]]]
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'''4. Language Flexibility via PSOLEAO'''
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Where operationally feasible, appoint unilingual employees non-imperatively with a funded, milestone-based language training plan up to 2 years. [[/www.canada.ca/en/public-service-commission/services/public-service-hiring-guides/public-service-official-languages-exclusion-approval-order/new-psoleao-new-psolar-frequently-asked-questions.html|[canada.ca]]], [[/www.canada.ca/en/public-service-commission/services/public-service-hiring-guides/public-service-official-languages-exclusion-approval-order.html|[canada.ca]]]
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'''5. Alternation & Voluntary Departure'''
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Promote alternation transparently and track participation and outcomes by EE group, to avoid informal access inequities. [[/www.njc-cnm.gc.ca/directive/d12/en|[njc-cnm.gc.ca]]], [[/www.canada.ca/en/government/publicservice/workforce/workforce-adjustment.html|[canada.ca]]]
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'''6. Monitoring & Reporting'''
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Track who is screened in/out and retained by group and classification; use TBS Employment Equity dashboards and departmental reports involving representation trends. [[/www.canada.ca/en/treasury-board-secretariat/services/innovation/human-resources-statistics/diversity-inclusion-statistics/employment-equity-demographic-snapshot-2023-2024.html|[canada.ca]]]
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'''7. Bias & Barrier Mitigation'''
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Document every mitigation action per Step 9 in the PSC Guide. Include language in selection criteria descriptions and record justification for equity objectives.
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----
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==== Roles & Responsibilities ====
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* '''Employee Networks & Unions''': Provide lived-experience insight, identify systemic patterns, advise on trauma-informed design.
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* '''HR/LR''': Ensure compliance with PSER, guide managers in structured, equitable processes, document barrier mitigations.
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* '''Executives''': Approve SERLO plans only with equity safeguards; provide oversight throughout.
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----
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==== Key Questions for Managers ====
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# What’s the projected AR/WAE by EE group and classification?
 
# What’s the projected AR/WAE by EE group and classification?
 
# Have we embedded documented EE organizational needs in criteria?
 
# Have we embedded documented EE organizational needs in criteria?
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==== Links & Resources ====
 
==== Links & Resources ====
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* '''PSC''' Selection for Retention or Lay‑Off Guide (2025) [[/www.canada.ca/en/public-service-commission/services/public-service-hiring-guides/selection-employees-retention-layoff-guide-managers-hr.html|[canada.ca]]]
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* [[:en:Equity_in_WFA_&_SERLO_/_Équité_dans_le_RE_et_le_SEMPMD/www.canada.ca/en/public-service-commission/services/public-service-hiring-guides/selection-employees-retention-layoff-guide-managers-hr.html|'''PSC''' Selection for Retention or Lay‑Off Guide (2025)]]
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* '''PSER Section 21''': Notice requirements for lay‑off and retention [[/laws-lois.justice.gc.ca/eng/regulations/SOR-2005-334/section-21.html|[laws-lois....tice.gc.ca]]]
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* [[:en:Equity_in_WFA_&_SERLO_/_Équité_dans_le_RE_et_le_SEMPMD/laws-lois.justice.gc.ca/eng/regulations/SOR-2005-334/section-21.html|'''PSER Section 21''': Notice requirements for lay‑off and retention]]
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* '''NJC Workforce Adjustment Directive''' (Full text & flowchart) [[/www.njc-cnm.gc.ca/directive/d12/en|[njc-cnm.gc.ca]]]
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* '''[[:en:Equity_in_WFA_&_SERLO_/_Équité_dans_le_RE_et_le_SEMPMD/www.njc-cnm.gc.ca/directive/d12/en|NJC Workforce Adjustment Directive]]'''
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* '''TBS Employment Equity Annual Report (2023–24)''' [[/www.canada.ca/en/treasury-board-secretariat/services/innovation/human-resources-statistics/diversity-inclusion-statistics/employment-equity-demographic-snapshot-2023-2024.html|[canada.ca]]]
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* '''TBS WAE & Employment Equity Dashboards''' [canada.ca],
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* '''PSOLEAO FAQ''': Exclusions and bilingual staffing [[/www.canada.ca/en/public-service-commission/services/public-service-hiring-guides/public-service-official-languages-exclusion-approval-order/new-psoleao-new-psolar-frequently-asked-questions.html|[canada.ca]]], [[/www.canada.ca/en/public-service-commission/services/public-service-hiring-guides/public-service-official-languages-exclusion-approval-order.html|[canada.ca]]]
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* '''Directive on Official Languages for People Management''' [tbs-sct.canada.ca]
 
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