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By Alix Herber and Hadiya Roderique
Across Canada, human rights legislation prohibits employment discrimination on the basis of age. This applies to all aspects of the employment relationship — job advertisements, application forms, job interviews, hiring decisions, denial of promotional opportunities, and termination decisions.
Employers are often tasked with creating systems to reduce employee theft or fraud. Such systems can include many things including credit checks on potential employees. Recently, Mark’s Work Wearhouse in Alberta was stunned to learn that such credit checks weren’t permissible in the circumstances — even when a number of other measures had failed. As such, it agreed to stop conducting prehiring credit checks.
Facts
Faced with in-store theft or fraud, Canadian national retail chain Mark’s Work Wearhouse instituted a series of measures to deter employees. When other measures weren’t successful, it started collecting credit check information on its applicants.
By Gulu Punia
Successful headhunting can add significant value. But employers must be careful that they don’t become the hunted. As with any hunt, there are risks that may not be obvious. In the employment context, a Canadian employer may be on the hook for extended severance or risk an action from the previous employer for inducing a breach of the employment contract. The good news is that reasonable precautions can minimize these risks and result in happy hunting.
Recognition of previous service
One of the biggest risks for Canadian employers comes from an employee who’s recruited from secure employment. Such an employee may claim that previous service must be recognized by the new employer. This is particularly troublesome when the recruit is fired.
By Lyne Duhaime
An IBM employee from Quebec made headlines last month when her disability benefits were cut off by the insurance company after it saw pictures of her on Facebook. Despite being off work for depression, the employee had posted photos of herself on vacation at the beach and at a Chippendale’s show. When IBM’s disability carrier saw the photos on Facebook, it cut off her disability benefits. In its view, the employee no longer appeared to be disabled within the meaning of the insurance contract.
This case raises interesting privacy issues. Are photos posted on a social media website personal information? Are employers, disability carriers, and other organizations prohibited from using such information? If not prohibited, are there limitations? Put simply, are employers (or, in this case, insurers) able to use the Internet to collect information about their current or future employees?
In 1990, a 21-year-old woman was caught shoplifting. She then pleaded guilty to a charge of theft, receiving a conditional discharge. Some five years later, she applied for a position with the Montreal police force. So began a 13-year legal odyssey culminating in a Supreme Court of Canada decision (Montréal (City) v. Quebec (Commission des droits de la personne et des droits de la jeunesse, 2008 SCC 48) released in August of 2008.
As part of the background screening process, the Montreal police force became aware of the past guilty plea. It rejected her application on the basis that the guilty plea showed she did not possess the necessary “good moral character” required of police officers. The “good moral character” test was legitimate – it was a statutory requirement. The police force believed this test supported its rejection of the woman’s application.
By Rachel Ravary and Philippe Lacoursière
McCarthy Tetrault
Earlier this year, we reported on the decision of the Alberta Court of Appeal in Chiasson v. Kellogg Brown & Root (see the January 22, 2008, blog entry titled Ruling helps Alberta employers defend preemployment testing challenges), which upheld an employer’s right to perform mandatory preemployment alcohol and drug screening for safety-sensitive positions.
By Kate McNeill
McCarthy Tetrault
We all know that once you hire an employee, you have certain legal obligations to that employee. But what about before you even hire someone?
In Canada, job applicants are entitled to certain human rights and common law protections that employers must be aware of in their hiring practices. In this Q&A, we provide answers to some of the more commonly asked questions about hiring practices in the Canadian marketplace.
by Michael Ford
McCarthy Tetrault
A long-awaited ruling of the Alberta Court of Appeal clears up some questions related to preemployment drug and alcohol testing related to safety-sensitive positions.
The case – Chiasson v. Kellogg Brown & Root issued December 28, 2007 – involved an admitted casual user of marijuana being terminated from his employment after failing a preemployment drug and alcohol test.
Chiasson was hired by KBR on the condition that he pass a drug and alcohol test. After failing the test, he admitted smoking marijuana five days before he was tested. He was then fired.
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