Tips for Hiring a New Employee
When recruiting a new employee, employers must be mindful of the various legal obligations that apply to them, particularly when posting jobs and interviewing potential candidates. In this regard, there are three important pieces of legislation to be mindful of:
(1) Accessibility for Ontarians with Disabilities Act, 2005
The Accessibility for Ontarians with Disabilities Act, 2005 (the “AODA”), is provincial legislation with the purpose of developing, implementing and mandating accessibility standards in order to achieve accessibility for persons with disabilities, with respect to goods, services, facilities, accommodation, employment, buildings, structures and premises. One particular category that the AODA deals with explicitly is the recruitment of new employees. In this regard, there are a few things employers must do:
Notification of Accommodations - Notify its employees and external applicants about the availability of accommodation for applicants with disabilities in its recruitment process. One way of doing so is including a notice in the job posting which indicates that the employer is committed to providing accessible employment practices in compliance with the AODA.
Assessment and Selection Process - Ensure that job applicants are notified when they are individually selected to participate in the assessment or selection process that accommodation for disabilities are made available upon request in relation to the materials or processes to be used. The employer must consult with individuals who request accommodations and will provide for appropriate accommodations.
Notice to Successful Applicants - When presenting offers of employment, the Employer will notify the successful applicant of its policies for accommodating employees with disabilities. This can be incorporated directly into the employment agreement as well.
(2) Ontario Human Rights Code
The Ontario Human Rights Code (the “Code”) mandates that employers not discriminate against prospective employees based on their race, sex, disability, or other Code grounds. While it is difficult to capture all of the nuance that exists across all industries, suffice it to say that the guiding principle in this regard is to ensure that the recruitment process is a fair one that focuses on that candidate’s ability to perform the essential job duties. The Ontario Human Rights Commission encourages the following practices (amongst many) to help ensure compliance with the Code:
Questions should be developed using objective criteria, in advance and each applicant/candidate should be asked the same questions;
Questions should be based on the job’s essential duties and bona fide requirements, not on subjective considerations such as “confidence”;
Do not deviate from the usual hiring process – follow the same process for every candidate and ensure that the only information about qualifications and job requirements is considered when making hiring decisions;
Offer and provide accommodations for the interview, this also helps to ensure that you are compliant with the AODA; and
Once a hiring decision is made, you should be able to document the reasons for hiring or not hiring each candidate.
(3) Pay Transparency Act, 2018
The Pay Transparency Act, 2018 (the “PTA”) has been enacted and was scheduled to come into force on January 1, 2019, but was delayed by the Progressive Conservative government on November 15, 2018. Currently, there is nothing proposed to change the substantive content of the PTA, although it is foreseeable that future legislation will do so. In the event that the PTA does come into force, employers will need to review this legislation prior to posting jobs and interviewing candidates. In its present form, the PTA would require, amongst other things, the following:
Compensation History – No employer will be permitted to request compensation history information about an applicant by “any means”; and
Posting Requirements – Every employer who publicly advertises a job must include in the posting the expected compensation for the position or the range of expected compensation.
These are just some of the issues that prospective employers and employee should consider and be aware of when engaging in the recruitment process. If you require assistance or advice in regards to your hiring process, please contact Kavanaugh, Milloy today.