Avoiding hiring pitfalls in Canada

by Kate McNeill
We all know that once you hire an employee, you have certain legal obligations to that employee. But what about before you even hire someone?

In Canada, job applicants are entitled to certain human rights and common law protections that employers must be aware of in their hiring practices. In this Q&A, we provide answers to some of the more commonly asked questions about hiring practices in the Canadian marketplace.

Q. When we are advertising or posting a job, what potential issues do we need to be aware of?

A. Under human rights legislation in Canada, employers must not use statements in a job advertisement that directly or indirectly discriminate against candidates based on certain protected grounds. Some examples of these are race, religion, ethnic origin, age, marital/family status, sex, sexual orientation, and disability, but they differ slightly from province to province.

For example in British Columbia, you can’t refuse to hire someone because of a criminal conviction that is “unrelated to the employment or to the intended employment of that person.” This can lead to complicated judgment calls, and legal advice is often helpful.

Q. What kind of information about a prospective employee can we seek through a job application?

A. As with job advertisements, employers must not ask questions in a job application that seek information, directly or indirectly, about the grounds protected under human rights legislation.

Questions that are permissible include whether the candidate:

• is legally able to work in Canada;
• is over the provincial age of majority and therefore eligible to work;
• would be available for shift work or would be able to relocate/travel for work;
• or,is able to perform the duties of the job.Finally, it’s important to ensure that the questions are tailored to the job in question and that the information sought is reasonably related to the job itself.

Q. Will the use of a third-party headhunter minimize our exposure to liability in the hiring process?

A. No. Third-party recruiters such as headhunters are considered to be agents of the employer, so the employer can be held liable for their actions. As a result, employers should ensure that headhunters:

• comply with human rights legislation;
• have an accurate and complete job description and don’t offer misleading or false information about the job or the company;
• don’t act in a way that would breach an existing employment agreement with a candidate’s current employer; and
• inform the employer immediately if the candidate is being enticed away from other secure employment.

Q. What kinds of questions can we ask during a job interview and what should we avoid?

A. In a job interview, employers should only ask questions needed to make a hiring selection on the basis of merit and must avoid questions that would directly or indirectly solicit information tied to a prohibited ground under human rights legislation.
For example, if a candidate raises a physical disability or religious belief, the employer may justifiably ask how that may be accommodated in the position. However, questions about race, ancestry, sexual orientation, or political belief would generally not be acceptable.

Q. Is it advisable to conduct a background check of a prospective employee?

A. If your business generally obtains background checks or references, then be sure to notify prospective employees of that practice and, where necessary, obtain their informed, written consent. If the background check results in information about a protected ground under human rights legislation, that information can’t be relied on as the basis for a hiring decision.

Q. What, if any, issues should we keep in mind if we decide to extend an offer of employment to a prospective employee?

A. If you require a successful preemployment background check, the offer of employment should be conditional on that background check. Further, offers of employment should be in writing and clearly and accurately tailored to the position being offered. You should review the offer carefully with the candidate and give him or her adequate time to consider the offer to ensure that the candidate understands and agrees to the terms.

Finally, don’t make any over-reaching or unrealistic promises to a candidate that would induce the candidate to accept the position. Such promises can be costly down the road if the prospective employee relies on them to his or her detriment.

What to do when U.S. national security, Canadian employment laws clash

by Rachel Ravary

No one can deny that security concerns have taken on monumental proportions in the post-9/11 era. Buzzwords like national security, homeland security, border security, supply chain security, perimeter security, and security threats have become part of our daily vocabulary. National security is also high on the list of priorities of our respective lawmakers.

In the past several years, the U.S. State Department has become increasingly strict in its enforcement of export and transportation controls, most importantly the International Traffic in Arms Regulations (ITAR).

Unfortunately, these controls are often at odds with Canadian employment laws especially those dealing with privacy and human rights – leaving companies whose business depends in whole or in part on trade in ITAR-controlled materials between a rock and a hard place.
What are the issues? Could you be exposed? What is being done to resolve them? How can you limit your risks in the meantime? Those are some of the questions that this week’s blog will address.

Q. What are the ITAR?

A. The ITAR were adopted under the U.S. Arms Export Control Act, which essentially regulates the export of U.S. defense articles and services. Among other things, the ITAR impose strict licensing requirements before any non-U.S. person or company can come into contact with ITAR-controlled materials.

To be granted a license, the person or company must guarantee that no citizen of any one of the 25 “embargoed countries” will be permitted access to or contact with ITAR-controlled materials. This includes individuals who are Canadian citizens but who hold dual nationality with an embargoed country.

Companies who violate the ITAR by failing to restrict access to unauthorized individuals expose themselves to hefty fines, not to mention contractual liability and the resulting damage to their business.

Q. Who must comply with the ITAR?

A. Don’t be misled by the title – the ITAR have a far wider reach than military arms dealers. By definition, the restrictions apply to any company involved in the export or import of U.S. defense-related articles and services. This obviously includes such things as firearms and military equipment, but it also extends to less likely suspects such as protective personal equipment, training manuals and materials, fire control equipment, radiological devices, air and spacecraft, to name a few.

As well, the regulations cover any components, parts, accessories, and technical data used in those articles and any related services, for example, training, design, assembly, testing, repair, and maintenance. To date, the aerospace, transportation, and telecommunications industries seem most affected.

Q. Why should we be concerned by the ITAR?

A. The ITAR controls clash with Canadian human rights laws, which generally prevent an employer from discriminating against an employee on the basis of nationality or country of origin. As well, compliance with ITAR raises issues of infringement of privacy to the extent that employers will have to ask about their employees’ national origins, whether they still hold citizenship in those countries, etc.

Finally, complying with ITAR could put some employers in direct conflict with their employment equity or affirmative action obligations.

Q. Is it possible to comply with ITAR without violating Canadian employment laws?

A. The ITAR have a lot of Canadian critics, and most of them seem to be saying, “No.” More revealing is the position of Canada’s Department of National Defence (DND), which has clearly said that compliance with ITAR restrictions would be inconsistent with the Canadian Charter of Rights and Freedoms and human rights legislation.

Q. How have the Canadian authorities responded?

A. To date, human rights complaints have been filed in Quebec, Ontario, and Manitoba by employees or former employees who were either fired, reassigned, or denied professional opportunities because of the application of ITAR restrictions. Without exception, the provincial human rights commissions have taken the firm position that the ITAR restrictions are discriminatory and violate human rights laws.

Presumably, fear of the larger implications has led all of these cases to be settled before hearing. As such, we don’t have the benefit of any decision on the merits of the issue – in particular whether the application of the ITAR rules could be viewed as a bona fide occupational requirement.

Q. What is being done to resolve the problem?

A. Talks between the Canadian Minister of Foreign Affairs, DND, and the U.S. State Department began in 2006 and have recently resulted in an agreement to allow DND personnel who are Canadian citizens, including dual nationals, to access ITAR-controlled materials on a need-to-know basis, subject to a minimum secret-level security clearance. Discussions are continuing to try to reach a similar arrangement for private Canadian businesses.

Q. What can you do in the meantime?

A. There are no easy answers to this one. While we wait for a politically negotiated arrangement to address the difficulties raised by the ITAR, the best advice we can offer is:

• Clearly identify the parts of your activities that are subject to the ITAR and the affected employees as narrowly as possible.
• Ensure that your U.S. parent or U.S. business partners are aware of the challenges that the ITAR pose with respect to Canadian employees.
• To the extent possible, offer employees work on projects that are subject to the ITAR on a voluntary basis, specifying that ITAR compliance is a condition of the assignment.
• Specifying ITAR compliance as a job requirement at the recruitment stage may discourage some candidates who don’t meet the requirements from applying. However, because human rights and privacy laws generally prohibit you from asking an applicant about national origin, and discrimination protections typically apply to the hiring stage, this approach has its limits.
• Avoid at all costs firing, demoting, or otherwise compromising the professional advancement of an employee as a result of ITAR constraints.
• If problematic situations arise, deal with them on a case-by-case basis, and attempt to resolve them in a way that is satisfactory to the affected employee.

Compassionate care benefits for Canadian employees

by Donovan Plomp

In Canada, employees are entitled to certain government-provided benefits under the federal Employment Insurance Act, including “compassionate care benefits.”

The introduction of these benefits in January 2004 prompted almost all provinces and territories to introduce job-protected compassionate care leave in their respective minimum employment standards laws.

Employers in Canada must grant this leave in accordance with applicable provincial or federal law. In this Q&A, we provide answers to some of the more commonly asked questions about compassionate care leave and benefits.

Q. What are “compassionate care benefits”?

A. Money paid under the Employment Insurance Act to qualifying employees. Employees may qualify if absent from work to provide care or support to a gravely ill family member who is at risk of dying within 26 weeks. Unemployed persons receiving other employment insurance benefits can also ask for these types of benefits.

Q. When are compassionate care benefits available? (more…)

Must-know facts about employment contracts in Canada

Q. When does an employer have an employment contract with its employees?

A. Every employer in Canada has an employment contract, whether written or unwritten, with each of its nonunion employees. Sometimes, only some of the terms are in writing. When necessary, courts will imply reasonable terms in the absence of any express agreement on the issue. (more…)

Blogs and why you should care

by Rosalie Cress

A “blog,” short for web log, is akin to an online diary or an electronic discussion board that often includes a mix of commentary and opinions from visitors to the website. More and more employers are dealing with employees who may be blogging about their work. Here are some questions you should consider.

Q. Why should I care about blogs?
A. The number of blogs is rapidly increasing. In its April 2007 “State of the Blogosphere” report, Technorati stated that at least 120,000 new blogs are created worldwide each day. And many employers are finding themselves the subject of blogs. (more…)

Party time

Q. When a company holds a social outing for employees and alcohol is served, what are the legal risks? How can potential liability be minimized?

A. Parties and other social events provide employers with an opportunity to reward employees and let them interact with coworkers outside of the office. Unfortunately, they also create some risk because you could be liable for the actions of your employees and guests who, for example, drink too much, harass guests or other employees, and become a danger to themselves and others. What can you do to minimize the risk? Here are some tips: (more…)