Help Wanted: Ensuring legally compliant recruitment, hiring and promotion

In their pursuit of information to find the best person for the job, employers can run afoul of human rights and privacy laws, even with well-meaning questions and tests. In unionized workplaces, provisions in collective agreements may require employers to adhere to additional standards when hiring or filling vacancies. Unions, for their part, are interested in ensuring that the processes for posting and filing positions are fair and not influenced by irrelevant factors or employer favouritism. In this session a panel of experts will offer guidance on ensuring legally compliant recruitment, hiring and promotion processes.

• • Recruitment: Can employers post job advertisements that state qualifications that go beyond the requirements for the immediate job? Why should an employer be cautious about rejecting applicants because they are “overqualified?” What are some examples of seemingly innocuous questions that adjudicators have held to be discriminatory when asked in pre-employment questionnaires or interviews? Must candidates answer discriminatory questions honestly? If a candidate lies in response to a question prohibited by human rights legislation, can he or she later be fired for that lie? At what stage of the recruitment process must employers inform applicants or successful candidates about the availability of accommodations for individuals with disabilities? When a vacancy becomes available in a unionized workplace, how can employers ensure compliance with job posting provisions in collective agreements? Why do some unions want to take a more active role during the interview/assessment stage of job competition process? What collective agreement language has been negotiated in this regard?

• • Background checks: How can prospective employers protect themselves from violating applicants’ privacy rights or human rights when conducting background checks? Must a prospective employer obtain explicit consent to perform a background check on a job applicant? Are employers permitted to run “social checks” on job applicants (e.g. accessing Facebook pages, googling a prospective employee’s name, etc.)? If employers are going to base hiring decisions on background checks, do they have an obligation to make sure the information they have obtained is accurate?

• • References: Must a prospective employer obtain explicit consent from a potential employee before contacting a potential employee’s references? In light of privacy legislation, must a former employer obtain consent from a former employee before giving a reference about that individual? What potential liability does an employer face as a result of providing a reference that an employee claims is defamatory?

• • Testing: What elements have arbitrators identified as valid components of testing procedures? To what extent is the employer entitled to rely on test results in making its decision to hire or promote a candidate? Can potential employers subject candidates for a position to psychological or personality testing? What is the extent of an employer’s duty to accommodate a disabled job applicant in testing? What is the extent of an employer’s duty to accommodate a disabled probationary employee who is being “tried out” in a position?

• • Promotion: What difference does collective agreement language make in the weight to be accorded to promotion criteria (e.g. seniority, skill and ability, service, qualifications, etc.)? Can employers impose an additional probationary period upon employees who are transferred, reassigned or promoted? What role do collective agreements typically assign to unions in the promotion process?

• • Remedies: What remedies do adjudicators award when an employee’s human rights or privacy rights are violated in the hiring or promotion process? What remedies are arbitrators likely to award when hiring or promotion procedures contravene the collective agreement?