Outsourcing recruitment doesn't mean outsourcing liability

To recruit and deploy external hires more quickly, the Canadian Security Intelligence Service (CSIS) is planning to outsource part of its recruitment process. 

The agency plans to make this happen this year to "meet operational needs and emerging demands," and also address current "bottlenecks," according to CBC, which obtained internal documents through an access-to-information request. 

As of this year, hiring ratios show 85 per cent of appointments were from internal hires while 15 per cent were from external hires, the documents show. 

CSIS's hiring process includes several different assessments, from psychological assessments with psychologists to enhanced security clearances and language evaluations, according to the agency's hiring page. CBC reports the process can take between 12 to 18 months and include a deep dive into candidates' personal history, including family and financial background. 

The agency plans to outsource parts of its current process, such as screening, psychological assessments, and targeted screening, the documents show. It also plans to create a team dedicated to external recruitment. 

Liability doesn't leave when the recruiter arrives 

As Canadian employers like CSIS look to third-party agencies to handle recruitment, Ellen Low, an employment lawyer at Low & Co. in Toronto, reminds employers that while they can delegate tasks, they cannot delegate the liability that comes with them. 

"A federal employer is permitted to outsource hiring tasks, but it cannot outsource its legal responsibility for them," she says. "The Canadian Human Rights Act is pretty clear that a federal employer is still going to be legally responsible for what it hires people to do on its behalf." 

When it comes to federally regulated employers such as banks, airlines, and telecommunications companies looking to outsource recruitment, Low says they must make sure that all hiring practices and standards follow federally regulated obligations. 

She points to Section 65 of the Canadian Human Rights Act, under which an employer is treated as responsible for the conduct of its officers, employees and agents — including third-party recruiters — carried out in the course of their work. 

"When thinking about external hiring agencies, those agencies need to be very careful to comply with all the obligations that the employer itself would have to comply with — non-discriminatory hiring in accordance with the Canadian Human Rights Act and ensuring anyone hired is also complying with those federal obligations," Low says. 

Screening and psychological assessments carry added risk 

As an example, she points out that outsourcing recruitment processes such as screening carries risk. Under the Canadian Human Rights Act, any advertising, written or oral, that expressly or indicates a preference based on a prohibited ground can be grounds for discrimination — and if a third-party hiring agency has bias baked into that process, it can be treated as the employer's own screening Low explains. 

There is no legal restriction on what employers can outsource for recruitment, Low says; however, some assessments can carry added risk — such as the psychological assessments CSIS is planning to outsource.  

"Any such assessment must meet the threshold of a bona fide occupational requirement and cannot be used simply because an employer finds it convenient," she adds. 

Provincial employers face an additional layer of obligation 

Junaid Malik, an employment lawyer at Heeney Law in Toronto, says the principle of liability holds the same for provincially regulated employers, except they must also make sure their obligations go beyond the Human Rights Code. 

Malik pointed to recent updates under Ontario's Working for Workers Act as an example of the additional layer of accountability provincially regulated employers must factor in when using outside recruiters. 

"There's a new obligation — if you have 25 employees or more, you disclose the salary range. If it's a publicly posted job ad, you can't say, ‘We want Canadian-only experience,’ things like that," he says. "They're going to want to make sure that the recruiter they're relying on is mindful of these issues.” 

What to do before signing with a vendor 

So, what should employers do before they hire third-party recruiters or outsource recruitment? 

Malik says it starts making sure third-party agencies and recruiters are aligned with legislation, as any breaches also become liability for the employer. 

"Employers should be aware of the representations and warranties that the recruiter's offering them, but still know that their obligations as an employer begin the moment, they retain somebody for an employment role," he says. 

Malik notes that employers should also consider the contractual scope of liability when engaging a third-party recruiter — clarifying what responsibility, if any, the agency will accept. 

"Typically recruiters try to disclaim all sorts of liability. They're just saying, 'Hey, we're going to pull a pool of candidates for you that are going to be viable for this role,'" he says.... the quote starts at "Hey",'" he says.  

Low echoes the importance of due diligence. She recommends employers ask to review and assess the agency's recruitment systems, from looking at application forms to screening questions and assessing whether any questions approach a prohibited ground of inquiry. 

She also recommends employers provide that list themselves rather than leaving it to the agency. 

"If the employer can give the agency a list of substantive questions, that can actually be very helpful in terms of the defence against any kind of allegation with respect to discriminatory hiring, because now you have an objective subset of questions that have been asked of every single candidate," Low says. 

What recruiters have to remember, Malik says, is that a third-party recruitment agency is a tool that can carry risks without proper oversight. 

"It's like a tool like anything else — tools can be very helpful, but you have to know how to use the tool. Just because you've relied on a tool doesn't necessarily mean it's limited your liability," he says