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Employment Law Back to Basics

Updated: Dec 14, 2023

On October 19, we hosted Jill Wilkie, HR Law expert and Partner at Miller Thomson to provide an essential overview of employment law considerations today. Our working lives, technology, and legislation have changed, so it was a great reminder for plan sponsors.


Hiring Processes & Human Rights

Pre-Employement Inquiries

The Alberta Human Rights Act prohibits employers from discriminating against employees – including prospective employees – based upon certain protected grounds. The following list can differ depending on the province, but for Alberta, the Alberta Human Rights website is a great resource.

  • Race

  • Religious beliefs

  • Mental or physical disability

  • Colour

  • Gender or gender identity

  • Sexual orientation

  • Age

  • Place of origin

  • Ancestry

  • Source of income

  • Marital status or family status

Pre-employment questions should only relate to a prospective employee’s ability to do the job as a bona fide occupational requirement. Generally speaking, do not ask for information that could be intentionally or inadvertently used by an employer to discriminate against certain groups of people.


A bona fide occupational requirement can mean that a limitation on individual rights may be reasonable and justifiable. For example, persons employed as drivers require acceptable vision and an appropriate driver’s license; a liquor store employee must be at least 18 years old.


The onus is on employers to show that it would not be possible to accommodate the employee without undue hardship.


Prospective employees could report an employer to the Alberta Human Rights Committee, and if the complainant is able to show that a standard of employment is discriminatory, the employer must prove that the employment standard was adopted because it was connected to job performance, was adopted in good faith, and is reasonably necessary to accomplish that legitimate purpose.


The test on whether an employment standard is bona fide requires an employer to accommodate or consider the capabilities of different members of society.

The Alberta Human Rights Commission has provided a helpful guide for pre-employment inquiries. For example, instead of asking about gender, gender identity, gender expression, marital or family status, employers should ask about availability for shift work or travel, for example.


Instead of asking for country of origin or citizenship, ask if the applicant is legally permitted to work in Canada.

 

Background Checks and Privacy

Privacy concerns can arise when employers wish to have employees undergo a background check. Employers must strike a balance between protecting the privacy of prospective employees and ensuring that employees are properly screened.


Requirements for proper screening could relate to an employee who is hired to be a CFO, working with children or seniors, or when an employer is vicariously liable to third parties for the acts of their employees. There is also case law that suggests that an employer can be sued directly if they hire unqualified, dishonest, or dangerous employees if this could have been prevented with proper screening.


The same rules apply as pre-qualification questions: only ask for information related to the employee’s ability to do the job. If conducting a background check with a former employer, ask whether the former employee honest and reliable? Would the former employer hire this employee again?


Similarly, if providing a reference, avoid personal comments about the employee such as their health status, went through a messy divorce, etc. Focus comments on job skills and performance. Ensure that the disclosure of job skills is reasonable for the purpose (ie recruitment).


Policies

Policies help employees understand employers’ expectations with respect to standards of behaviour and performance. They can draw boundaries that are consistent with the values of your business. Policies may also provide a set of guidelines for decision making in everyday situations that employees can refer to, helping to weather periods of change.


For employers, policies allow you to treat all employees equally. This ensures uniformity and consistency in operational procedures and decision making. Policies can provide all with a documented method of dealing with complaints and misunderstandings, which could help avoid undue claims of harassment, favoritism, or discrimination. Finally, policies can assist in assessing employee performance and establishing accountability.

In Alberta, two policies are required:


  • Privacy: This includes having a privacy officer who can access requests, is knowledgeable about PIPEDA, and who would be responsible for reporting in the event of a privacy breach.

  • Harassment and Violence Prevention (OH&S): employers need to show that they have provided training annually

These policies should be written in a way that is consistent with your corporate values. That being said, it’s recommended to seek a legal opinion prior to rolling out the policies.


Workplace policies must be communicated effectively to new and existing employees. For example, if you have to terminate an employee due to breach of policy, the termination for cause is unlikely to be upheld if the policy was not communicated properly or applied consistently.


Regularly update and review policies and procedures, and hold regular training sessions with your team as reminders.


Employment Contracts

All employees have employment contracts, even if the contract is verbal.


Oral contracts are not recommended, as they are not enforceable. Written employment contracts, when well drafted and reviewed by a lawyer, can address all issues that need to be addressed upon termination. This certainty can alleviate stress for both the employee and the employer. Key terms that should show up in your employment contracts – regardless of format – should include termination provisions, lay-off, restrictions on termination, waive timeline for resignation, and non-solicitation clause.


Providing new benefits can be a great time to update employment contracts as revisions must be accompanied by some kind of consideration. It could be as simple as a day off or a gift card – or a new group savings plan with employer matching!


Equity, Diversity, and Inclusion

Companies must navigate the rapidly evolving landscape of equity, diversity and inclusion. This goes beyond a commitment to an inclusive workplace free of discrimination. Organizations must pay attention to racial justice, corporate social responsibility, and open dialogue with employees.


  • Equity: This involves creating equal opportunity for all and eliminating barriers like discrimination and bias.

  • Diversity: This means representation from a wide range of perspectives in human society from different races, ancestry, colour, place of origin, creed, sexual orientation, gender identity and expression, age, disability, etc.

  • Inclusion: Means creating an environment where everyone feels welcome and valued. An inclusive environment can only be created once we are more aware of our unconscious biases, and have learned how to manage them. For example, assuming that everyone would want to participate on a company hockey team is not super inclusive.

Equity, Diversity, and Inclusion could be its own topic, but here are some ways to launch your EDI strategy:

  • Establish goals and objectives

  • A demographic census can provide a baseline understanding of the demographic makeup of an organization and helps identify representation gaps. Conducting employee engagement surveys to examine EDI in the workplace from employees’ own experiences should enhance the quantitative, census-based data.

  • Measure progress against those goals and objectives


Expectations placed on employers are constantly evolving to protect both employees and employers. Staying on top of these changes can protect your organization, its reputation, and your team members.


Jill Wilkie, Partner, Miller Thomson

Jill Wilkie is a trusted advisor to employers and specializes in advising on all aspects of labour and employment law. Jill has developed significant expertise in assisting clients in the health, manufacturing, and education industries, as well as in Alberta’s Indigenous communities. Jill’s experience includes advising on the discipline and dismissal process, the defence of wrongful, constructive and unjust dismissal claims, the development of policies, drafting employment contracts, the negotiation and arbitration of labour agreements and disputes, employment standards, human rights and accommodation, privacy law, workplace investigations, workers’ compensation, drug and alcohol testing, and occupational health and safety. Jill presents frequently on topics of interest to employers. Jill is a member of the Canadian Association of Counsel to Employers (CACE) and sits on the Judicial Council for Alberta.

 

 

 

 

 

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