Finding the right employees legally

In the battle for talent, an organization’s recruiting strategy can be a key element of its success. However, like in other aspects of employment, the process leading up to the start of the employment relationship has its pitfalls that can lead to legal liability.

One of the first things an employer does in looking to recruit new talent is to create and distribute a job posting. This initial step is also where employers can run into liability risk, according to Roxanne Davis, an employment and human rights lawyer at Carbert Waite in Calgary.

Job postings can be problematic if employers aren’t careful in the language they use in describing the requirements for the position, says Davis.

“Often the choice of the language of the job posting, such as not using gender-neutral terms, setting requirements that aren’t truly connected to the role and might eliminate people with disabilities or discourage them from applying, or wanting Canadian experience that would prevent immigrants who are lawfully able to work in Canada from being considered eligible for the role, for example,” she says. “Just take a look at the draft of the job posting and ensure it uses inclusive language, neutral pronouns, and pare it down to what is truly required for the role – not eliminating any standards and abilities unless they are connected to the position.”

Once the job is posted and the applications start coming in, HR or hiring managers are tasked with selecting candidates and starting the interview process. This stage introduces another set of liability risks of which employers must be aware. Some of the most common mistakes employers make during this process involve inappropriate questions that are discriminatory in nature, says Davis.

“There should be no questions about things that are protected grounds, such as asking about family status or whether [the job candidate] has any children,” she says. “If the concern is whether they will be able to work on-call or shift work, then you should be asking specific questions related to their ability to work flexible hours, not whether they have any kids to pick up from school or things like that.”

Remote, hybrid work expectations

In recent years, with the rise of remote work and many workers now looking for that element in their job searches, flex work and telework have become elements to establish and clarify in the interview process, as this could also be discriminatory to certain people whose circumstance migh rely on remote work.

“Asking about flexibility in terms of working from home or working in the office, that's something that's come up more recently, and that's something that you want to be very precise with during the interviewing process,” says Davis. “If you're not going to allow flexibility to work from home, you need to be able to establish why you won't be able to; otherwise, you could be inadvertently discriminating against various categories or protected grounds under human rights legislation.”

Background checks and criminal record checks can also be tricky, depending on the jurisdiction, adds Davis.

“The broadest legislation would be in BC and Quebec, where you need to be able to establish a connection between whatever the criminal conviction is for and the job function - if you can't establish that connection, you can't discriminate against somebody on the basis of having a conviction,” says Davis.

The same limits apply to checking references – if it’s a question that can’t be asked of a job applicant, then it also can’t be asked of their references, adds Davis.

Consistent, prepared interviewers

Given the liability risks, a well-thought-out and consistent interviewing strategy that’s prepared in advance is essential for an effective and legally safe selection process, according to Davis.

“One of the most important things is that the people doing the interviews should be consistent and, if at all possible, the same team should be conducting all of the interviews,” she says. “Everybody should be working from a consistent set of questions that's been prepared in advance and screened for potential problems – such as questions that would breach human rights or get at protected characteristics that you can't ask about - and are evaluating only the requirements for the job and not anything that is outside those requirements.”

Davis adds that it helps if there is more than one person doing the interview and the interview team has some diversity within itself so there is more perspective on which to draw.

Some employers use third-party recruiters for the initial recruitment and interview stages, but that doesn’t absolve the hiring employer of responsibility, as the recruiters act as agents of the employer.

“The same considerations apply [to third-party recruiters],” says Davis. “You want to make sure that the recruiters have clear instructions and information about what the requirements are for the position and that the interviewing and screening they're doing also complies.”

Pay transparency

A recent trend in Canada is that jurisdictions are starting to require employers to include salary ranges in their initial job postings – BC and Ontario have recently implemented legislation with such requirements and the pressure to do it as will likely increase elsewhere as employers prioritize recruitment of top talent, says Davis.

“I think pay transparency [in job postings] will become of a more standard and universal practice as people interviewing for jobs in certain jurisdictions become accustomed to it and then move within jurisdictions in their search for jobs,” she says. “It becomes something that they're looking for and demanding, and it can impact the level of candidate that you get if other employers are more transparent about their pay.”

In addition, national companies that operate in jurisdictions where the legislation requires pay transparency will likely implement such practices across the board to simplify things, which can impact competitiveness in recruiting, says Davis.

While employers should avoid certain topics to protect themselves from liability, specifically asking about others, such as restrictive covenants, will also help avoid legal trouble.

“Depending on what industry you're in, asking questions about whether the employee is subject to any non-compete or non-solicitation restrictions from a previous employer is a good idea,” says Davis. “You want to make sure that your interviewing process isn't asking questions that would require an individual to disclose confidential information they acquired from previous employment - that's important as part of the interviewing process in certain competitive industries.”

Applicant dishonesty

There are many legal obligations on employers in the recruiting process, but job candidates have an obligation on their part to be honest with their prospective employers. What happens if an employer finds out an applicant lied in their application, after the individual has already been hired? It depends on the circumstances and the seriousness of the dishonesty, according to Davis.

“If the dishonesty is related to a valid requirement for the position and they lied about it - honesty is a fundamental requirement for an employment relationship - and if it is a significant enough lie, and it’s clear enough that it was a lie, then there is no acceptable excuse or explanation for it as being an inadvertent mistake and it can be grounds for dismissal,” she says. “But it should never be automatic, there should always be an exploration into the circumstances and whether it was just an inadvertent mistake.”