Legal Considerations for Hiring

Finding the right candidate for an employment position can be a difficult task for many employers. While some employers have an informal process without any particular plan, doing so can lead to potential liability down the line. This article outlines what employers should consider in their company’s recruitment process. Legal considerations for hiring should not be taken lightly and can pose a serious risk when entering into a new employment relationship.

Inducement

Employers should be careful not to induce an employee from another business, as the employer may be responsible for a longer notice period upon the employee’s dismissal. Inducement involves a prospective employer courting an employee and persuading the employee to leave their secure employment for a better position with job security, only to dismiss that employee within a short period after hiring.

However, employers are able to recruit an employee without liability concerns, and should confirm with a legal professional that they are taking the proper steps to ensure that the employee cannot misconstrue the job opportunity for inducement.

Privacy Concerns

Both employers and employees should understand the laws regarding privacy, especially with regards to handling resumes, references, and other forms of identification. The collection and distribution of a prospective employee’s personal information should be transparent.

Employers must ensure any information collected is in accordance with the Professional Information Protection and Electronic Documents Act (“PIPEDA”).

Within the hiring process, this means that an employer may not collect information in a manner which profiles or categorizes individual in a manner that leads to unfair, unethical, or discriminatory treatment. This also means that an employer may not require social media passwords for the purpose of employee screening.

Human Rights Considerations

The recruitment processes, including job posts, interviews, and selection, must be free from bias and discrimination on the basis of protected grounds under the Ontario Human Rights Code and the Canadian Human Rights Act, for provincially and federally regulated employees respectively.

A candidate may also require accommodation, and both employers and employees should understand their rights and obligations to ensure that they are properly engaging with the accommodation process.

Employers should avoid asking questions about the candidate’s race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

Depending on the nature of the position, the employer may ask specific questions relating to the record of offence, or whether the person has ever been convicted of a federal criminal offense for which a pardon has not been granted.

Job Posts and Assessing Candidates

The assessment of a candidate should always be fair, objective, and honest. Ensuring that job posts, interviews, and selection of candidates are being assessed on their skills, experience, and knowledge, rather than subjective or  or personal qualities of the candidate, helps to avoid claims against the employer down the line.

In an interview, employers who do not assess candidates based on the essential duties and tasks of the position open themselves up to claims of discriminatory decision-making. By not having a clear, well planned interview process, employers may inadvertently ask a question that is considered “out-of-bounds”.

While an employer may hire based on vague notions of “fit” and “confidence”, unless the employer is able to articulate with objective measures the reason the individual is the right candidate, the employer may risk other candidates challenging the decision-making as biased, unfair, and discriminatory.

Contact Us

Whether you are an employer seeking assistance with a recruitment process, or an employee who believes they have been discriminated against, our lawyers here at Achkar Law will be happy to answer any questions you may have about your workplace Contact us at 1-(800)771-7882, or email [email protected]law.com

If you are a small or medium size company looking for full-service support, visit our CLO program page for our strategic solutions.

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Disclaimer: This blog is not intended to serve as, or should be construed as legal advice, and is only to provide general information. It is in no way particular to your case and should not be relied on in any way. No portion or use of this blog will establish a lawyer-client relationship with the author or any related party. Should you require legal advice for your particular situation, fill out the contact form, call 1-(800)771-7882, or email [email protected].