By Leanne Standryk and Alexandra Del Vecchio
Hiring the right person means hiring someone who has the necessary qualifications for the job but also someone who demonstrates alignment with your workplace values and objectives culture. Developing an effective recruitment process that is systematic for each candidate is important. Understanding how the law impacts each of the steps will assist you in minimizing the risk of legal liability.
The Job Posting ~ Description
Prepare a posting that reflects your business needs. The posting should be well thought out, thorough and permit flexibility in the assignment of tasks as your business needs evolve. Identify qualifications, licenses or certifications essential and bona fide to the position.
Be mindful of obligations regarding human rights and accessibility. All Employers in Ontario are subject to the Accessibility for Ontarians with Disabilities Act, 2005, S.O. 2005, c. 11 (the “AODA”) as well as the Ontario Human Rights Code, R.S.O. 1990, c. H.19, (the “HRC”). The AODA and the HRC create a continuum of legal obligations throughout the employment relationship starting with the job posting which should include an accessibility statement:
We are an equal opportunity employer. We encourage applications from all qualified individuals and will provide accommodations in line with the AODA and HRC throughout the recruitment and selection process. Should you require accommodation at any stage of the recruitment process please contact [set out company representative]
The HRC prohibits discrimination on the basis of a list of factors which includes race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offenses, marital status, family status or disability. Job requirements must be neutral and non-discriminatory. This said, it is important to note that the legislation also recognizes the concept of “bona fide occupational qualification” or a requirement which may constitute a preference for or against a particular characteristic protected by human rights legislation.
Résumé Evaluation and the Interview Process
Résumé evaluation must be conducted in a neutral and non-discriminatory manner. Be aware of conscious and unconscious biases that may drive your decisions. For example, preferring a candidate from a certain University or College because you perceive that institution as more reputable than others. Avoid gender bias or ageism where candidates identify the year in which they graduated high school.
Once you have selected interview candidates, interviews must be performed in a manner that continues to comply with the requirements of the AODA and the HRC. The AODA requires that employers provide accessible interviews. Consider location, accessibility to those using a mobility device, proper lighting, seating arrangements, timing of the interview and alternatives to face to face interviews such as skype or via telephone. An accommodation request might include a sign language interpreter or other communication aids.
Assess, contrast and compare candidates on merits as against core responsibilities required for the job. Avoid judgements or conclusions based on what a person looks like, assumptions of age, gender, etc.
Remember that the law presumes that all questions asked during the interview process will be used in the hiring decision. The HRC specifically prohibits employers from asking questions in interviews which directly or indirectly classify or indicate qualifications by a prohibited ground of discrimination. How old are you? Do you have children?
Focus on questions such as what motivates the candidate to put forth their greatest effort? How do you work under pressure and manage deadlines…what would your former employer say about your ability to do so? Seek specific examples of how they may perform specific tasks. Test their knowledge on processes, formulae, pros and cons of certain industry tested methods, etc. Offer a scenario-based question: was there a situation where you disagreed with a decision made by your former employer…how did you deal with it? Consider questions that reveal leadership style: What five characteristics best explain an effective leadership style?
Pre-Employment Screening
Once you have determined the most suitable candidate, you are at the stage where you may make a conditional offer subject to satisfactory pre-employment background checks. Common types might include education verification, driving record, accreditation and membership standing, criminal/vulnerable sector check, credit check and professional reference check. Assess the need and limit background checks to necessary information and obtain the applicant’s consent to perform the checks. Remember, the HRC prohibits discrimination on grounds related to a record of offences for which a pardon has been obtained. If the applicant has been convicted and subsequently pardoned, denial of employment would contravene the HRC.
One of the emerging issues with criminal/vulnerable background checks is the delay in obtaining the information requested. Consider a local logistics company who needs a driver. You have made an offer of employment to a driver conditional upon a satisfactory background check. You permit the employee to start working pending results. The criminal background check reveals a conviction which does not impact the employee’s ability to perform their duties. You now wish to fire the employee for just cause. Allowing the employee to work prior to receipt of the reference check contradicts the belief that a clean record is an essential job requirement. Deciding to terminate the employee’s employment based on a criminal conviction after employment has started may, unless you can prove a bona fide occupational requirement, expose you to liability not only for wrongful dismissal but also potential human rights damages under the HRC.
When checking professional references, stay away asking questions that may reveal human rights concerns such as asking for details about the employee’s former attendance/medical leave, etc. Focus on their knowledge of how well the applicant performed their job; interacted with customers/co-workers; details of position/work experience, etc.
The Offer Letter ~ Employment Agreement & Workplace Policies
Ensure that the successful candidate is aware of workplace policies. The employee should receive, acknowledge and agree to your workplace policies prior to their start date and within a reasonable time of the start date receive all required training.
The hiring phase presents the opportunity to define terms of employment and manage legal liability with the execution of a written employment contract (a.k.a. offer letter, employment agreement). We hear all the time “I don’t have an employment contract with…” The fact is that whenever an employee agrees to work for an employer, a contract is established. It may not, however, be in writing.
While there is nothing illegal about a verbal contract, terms are significantly more difficult to prove in the event of a dispute. A carefully drafted contract leaves far less room for disagreement.
We recommend that all employment relationships start with a valid, enforceable written offer/agreement that is tailored to the specific character of employment. Identify key terms such as an employee’s title, rate of pay, duties/responsibilities, line of supervision, full time and attention, conflict of interest, confidentiality and/or non-solicitation provisions, etc. Consider not only minimum standards proscribed by the Employment Standards Act 2000. S.O. 2000 c. 41 (ESA) but pay equity issues in establishing employee compensation.
Consider terms that govern termination by either party, a definition of legal cause and entitlements on termination without cause. While you cannot contract out of the Employment Standards Act 2000, S.O. 2000 c. 41 (ESA) statutory minimum obligations, you can limit implied common law entitlements to reasonable notice or pay in lieu thereof. Doing so requires careful drafting and compliance with statutory obligations to withstand legal scrutiny.
Conclusion
There are several practical elements to conducting a successful recruitment but understanding how the law impacts the process is critical. A successful recruitment is one that is well thought out and conducted in an ethical, professional and legal manner.
Leanne Standryk and Alexandra Del Vecchio are lawyers in Lancaster Brooks & Welch LLP Labour and Employment Department. Please contact them with any questions about labour and employment law at 905-641-1551.
We confirm with you that the content of this article is to provide general information and should not be considered legal advice. Employers are encouraged to contact a member of our labour and employment group with any questions.