Update on the Police Record Check Reform Act

Pre-employment police record checks have become common in our information-obsessed society. This is where the employer requires a job candidate to pass a police record check as a condition of being hired. The Police Record Checks Reform Act  (the “Act”) was designed to standardize why and when these record checks can be obtained, as opposed to leaving it up to individual police forces to figure out.

As of November 1, 2018, new requirements regarding pre-employment police record checks are in force.  

Consent

Under the new law, an individual must give written consent at two stages in the record check process:

  1. Consent to the type of check to be conducted
  2. Consent to disclose the results of the check

Candidates need to provide written consent to the type of check the employer requires. Once the check is complete, candidates will be provided with their results and must again provide written consent to have these results shared with the potential employer. Record checks are usually performed by a third party record check provider who liaises between the potential employer, the police service and the candidate.

Types of Record Checks

Under the new law there are three types of record checks:

  1. Criminal record check;
  2. Criminal record and judicial matters check; and
  3. Vulnerable sector check.

The Act includes a helpful table describing the types of checks and what information each check will include, which you can check out here.

In general, the Act tightens up what various checks will disclose. For example, even where a vulnerable sector check is completed, non-conviction information cannot be disclosed unless certain criteria for “exceptional disclosure” are met. These criteria centre around information that may present a risk to vulnerable populations, such as if the individual was charged with a crime where the alleged victim was a child.

There are exceptions to the Act which are detailed at section 2(2) and in the regulations.

Takeaways

This is a complex area of law. If your workplace has routinely required pre-employment checks, you will want to ensure compliance with the Act and make sure that written consent is being obtained. It is also expected that check may not take longer to process. If you have questions about the application of this Act or any other questions about privacy in your workplace get in touch!

Goodbye Personal Emergency Leave

Bill 47, the Ford government’s Making Ontario Open for Business Act has passed. One big change the bill makes is to the much discussed (and much used) Bill 148 amendment regarding Personal Emergency Leave. This amendment will come into force on January 1, 2019.

For historical purposes, you can read all about the Bill 148 version of Personal Emergency Leave on our blog here.

Under the Bill 47 version of the Employment Standards Act, we will soon have Sick Leave, Family Responsibility Leave and Bereavement Leave instead of Personal Emergency Leave.

Sick Leave

Sick Leave will consist of an unpaid leave of three days per year for personal illness, injury or medical emergency. Employers can require that the employee provide “evidence reasonable in the circumstances that the employee is entitled to the leave.”

Family Responsibility Leave

Family Responsibility Leave will consist of an unpaid leave of three days per year because of illness, injury or medical emergency or an urgent matter that concerns:

  • the employee’s spouse
  • parent, step-parent or foster parent of the employee or the employee’s spouse
  • child, step-child or foster child of the employee or the employee’s spouse
  • grandparent, step-grandparent, grandchild or step-grandchild of the employee or of the employee’s spouse
  • the spouse of a child of the employee
  • the employee’s brother or sister
  • a relative of the employee who is dependent on the employee for care or assistance

Again the employer can require evidence reasonable in the circumstances that the employee is entitled to the leave.

Bereavement Leave

This leave is two unpaid days per year in the event of the death of an individual in the bulleted list above. Again the employer can require evidence reasonable in the circumstances that the employee is entitled to the leave.

What’s Different?

Personal Emergency Leave entitled a worker to ten days per year, two of which were paid. The leave covered the same three situations as the three new leaves but the days were not allocated to specific reasons. Under Personal Emergency Leave an employee could have taken the full ten days for a sick child, for example. These three new leaves entitle an employee to a possible total of eight days but only if each reason should arise. None of the days under the new leaves are paid.

Under Personal Emergency Leave, employers were not permitted to require medical notes from employees to substantiate their leave entitlement. This protection has been removed and employers can now require whatever evidence is “reasonable in the circumstances.”

An employee is entitled to the new leaves after two weeks of work. Employees were entitled to Personal Emergency Leave immediately and the two paid days after one week of work.

Reality Check

In reality, just because an employee needs more than three days of sick time (or time to care for a family member) per year does not mean that they are no longer entitled to their job. Employers who terminate ill employees or employees who take time off to care for ill relatives, risk human rights complaints. The Ontario Human Rights Code provides accommodations for employees who are ill or who need time off to care for a sick relative. The employer has a duty to accommodate the employee up to the point of undue hardship. Allowing an employee an extra few sick days will rarely, if ever, amount to undue hardship.

Personal Emergency Leave was well-used and employees will be sorry to see it go. Employers will need to update their policies and ensure that employees are aware of the changes to their statutory leave entitlements.

If you need help understanding the changes to Ontario’s employment landscape brought in by Bill 47 get in touch.

Can an employee take back their intention to retire?

This was the question asked in English v. Manulife Financial Corporation, 2018 ONSC 5135 (English). In this case, English, a 66-year-old employee decided to retired when her employer, Manulife Financial Corporation, announced in 2015 that they would be converting their technology and employees would be required to learn a new system. She made this decision on her own and voluntarily. English presented her resignation letter to her boss on September 22, 2016, which stated that she would retire, effective December 31, 2016.

The Employer’s Response

When presented with her resignation letter, English’s boss asked her if she was sure about resigning. He also told her that if she changed her mind she could take back her resignation. English left the meeting with the impression that she could change her mind about her decision.

On October 11, 2016, Manulife announced that it was suspending the technology conversion. This announcement did change English’s mind about retirement. She verbally told her boss that she wished to rescind her notice of retirement. Her boss said nothing in response.

Meanwhile, Manulife had started to take steps to eliminate English’s position. On November 5, 2016, Manulife confirmed in writing that it accepted English’s notice of retirement. English worked until December 12, 2016, when she was told she no longer needed to come back. English was not provided with any notice pay. She then sued Manulife for wrongful dismissal.

What Makes A Retirement or Resignation Real?

A resignation from one’s job must be clear and unequivocal. It must objectively look like the person intends to resign or has resigned. In this case, the court found that English’s retirement letter did provide a clear and unequivocal intention to resign. The question was, could she take it back? Her boss had said so but the court said no.

Manulife accepted English’s retirement. When English stated that she wished to take back her intention to retire, Manulife did not confirm that it would allow her to do so.  

Using contract law principles, the court found that while English’s offer to retire had been accepted by Manulife, her later offer to rescind her retirement was not. Her offer to retire and its acceptance by Manulife created a binding contract. English could not decide to not hold up her end of the bargain.

Takeaways

Previous decisions have held that an employee can rescind their notice of resignation as long as the employer has not relied upon it to their detriment. This case rejected that approach, instead relying on contract law principles. Once an offer has been accepted, a contract is formed and it is not open to the employee to rescind his or her notice of resignation once it had been accepted.

So employees, when you offer your resignation be sure that you mean it! If your employer accepts it, you won’t be able to take it back!

Employers, if an employee resigns confirm that their resignation is accepted IN WRITING! This will protect you if the employee later decides that they want to take it back. It’s noteworthy that English voluntarily tendered her resignation in this case. Pressuring an older worker into retiring is a violation of the law.

Even Robots are a Little Bit Racist: AI Bias in Recruitment

How would you like to perform only the most high-level and uniquely human elements of your job?  Are your skills really best utilized on data entry, rote memorization and pushing paper? Artificial Intelligence (AI) promises to delegate all the drudgery of your job to machines while freeing you up to mingle with clients on the golf course and answer phone calls from your private yacht in the Adriatic Sea.

It almost sounds too good to be true.  But are machines really up to the task?

One industry that has highly leveraged AI is recruitment.  As we have previously written about here, the task of sifting through hundreds or thousands of resumes is uniquely suited to machines.  An important feature of the application of AI to recruitment is reducing human bias in the selection of candidates.  But as we warned, an AI system is only as good as the data inputted into it – a critical point recently confronted by Amazon.

The Amazon Story

Amazon developed an AI tool to automate recruitment and reduce bias.  While it appears to have been effective at the former, it seriously failed at the latter.  Since the AI was trained to select applicants based on resumes previously submitted over a 10 year period, the algorithm was in effect trained with tainted data.  The sample contained resumes that were disproportionately from male candidates, and as such, the AI began to prefer male candidates.

Thankfully, Amazon was alerted to and rectified the gender bias in its AI, but eventually scrapped the program altogether.  What if the issue was not discovered, or other biases remained? Further, who is responsible when an organization uses an algorithm to select candidates that in effect discriminates against an identifiable group on human rights grounds?  Since an algorithm cannot explain its decision-making process, how can you be sure it is working as intended and not simply perpetuating existing biases?

Controlling Bias and AI

This raises new and challenging issues for employers and HR professionals. The issue of liability could differ depending on whether companies develop their own AI such as Amazon, or where a company utilizes third-party recruitment applications (the more likely scenario).  

Using third-party software that creates biased outcomes could arguably simply be a result of historical biases in a company’s hiring decisions, and have nothing to do with the AI itself.  But do most employers or HR professionals have the capacity to evaluate whether the bias is created by the algorithm or their company data fed to the algorithm (or both)?

AI recruitment vendors can perform adverse impact tests to determine the integrity of the data.  However, this is often one of the last steps and can come after an organization has invested significant time and resources in implementing the technology.  A best practice could be for organizations to negotiate that vendors detect bias at the start of the project or mitigate it in the course of algorithm development.

Still, this doesn’t guarantee that bias will be eliminated entirely or clarify who is ultimately responsible for biased outcomes.  

Takeaways

So should employers and HR professionals hold off on using AI in recruitment? No, technology is nothing to be afraid of.  AI is still an expedient and efficient tool for large-scale recruitment, and organizations with a long history of unbiased decision-making processes will have better results.  If nothing else, it does turn an organization’s attention to the input and underlying data that feeds into the selection process. This is always a good internal conversation to have, whether or not technology is involved.

This is something to keep on eye on as the technology evolves and policy develops to address the above issues

As always, we would be happy to answer any questions you have regarding the use of AI in the selection of candidates for your workplace.   

Remembrance Day and Why We Don’t All Get the Same Days Off

Earlier this year the federal government amended the Holidays Act to include Remembrance Day as a legal holiday. You can read more about this in our past post Remembrance Day Enacted as a Legal Holiday. In Ontario, Remembrance Day has not been added to the Employment Standards Act as a public holiday and consequently, workers governed by provincial legislation do not get the day off.

Why Don’t We All Get the Same Days Off?

The answer to this question goes back to our Constitution and the division of powers. Different spheres are governed by the provinces versus by the federal government. This is why workers in Ontario (or any province) do not all get the same days off. Workers in Ontario (or any province) also do not all have the same employment rights because federal and provincial spheres are governed by different laws.

Federal Holidays

Spheres governed by federal legislation are those that concern “national interest.” This encompasses areas that cross provincial borders like mail, shipping, banking, telecommunications and fisheries. Federal industries are governed by the Canada Labour Code. The Canada Labour Code provides for nine “general holidays”:

  • New Year’s Day
  • Good Friday
  • Victoria Day
  • Canada Day
  • Labour Day
  • Thanksgiving Day
  • Remembrance Day
  • Christmas Day
  • Boxing Day

This is why banks are closed on Remembrance Day!

Provincial Holidays

The majority of workplaces in Ontario are governed by the Employment Standards Act. This rapidly evolving piece of legislation provides for nine public holidays. Instead of Remembrance Day, Ontario workplaces have Family Day.

  • New Year’s Day
  • Family Day
  • Good Friday
  • Victoria Day
  • Canada Day
  • Labour Day
  • Thanksgiving Day
  • Christmas Day
  • Boxing Day

For more information on holidays and holiday pay, check out our past post.

Again?! Bill 47, Making Ontario Open for Business Act

Last week the Ford government tabled Bill 47,  Making Ontario Open for Business Act, 2018. This legislation would repeal many of the amendments made by the Bill 148, Fair Workplaces, Better Jobs Act, 2017, most of which came into force in January 2018 but some of which are slated for January 2019.

Not surprisingly the changes proposed by Bill 47 are employer-friendly, in direct response to the employee-friendly changes brought in by Bill 148. The current versions of the Employment Standards Act, 2000 (“ESA”) is still in force and it is important that employers continue to comply with the Bill 148 version of the ESA until the new revisions are passed.

Here are some highlights of the proposed changes. Check out Bill 47 or the Ontario government’s new release for more details.

Minimum Wage

Under the proposed changes, the minimum wage would remain at $14 per hour until 2020, after which point increases would be tied to inflation. Under the current version of the ESA the minimum wage will increase to $15 per hour on January 1, 2019.

Scheduling

The various scheduling provisions of the ESA, set to come into force on January 1, 2019, would be repealed. These include:

    • The right to request changes to schedule or work location after an employee has been employed for at least three months.
    • Minimum of three hours’ pay for being on-call if the employee is available to work but is not called into work, or works less than three hours.
    • The right to refuse requests or demands to work or to be on-call on a day that an employee is not scheduled to work or to be on-call with less than 96 hours’ notice.
    • Three hours’ pay in the event of cancellation of a scheduled shift or an on-call shift within 48 hours before the shift was to begin.

Personal Emergency Leave

Personal emergency leave, currently consisting of 2 paid days and 8 unpaid days of protected leave annually for each worker, has been a tough pill to swallow for many employers. Bill 47 would replace personal emergency leave with the right to 3 sick days, 2 bereavements days and 3 family responsibility days annually. These days would be all unpaid. The provision prohibiting the employer from requiring a medical note would also be repealed.

Equal Pay for Equal Work

This is another provision that has caused many employers a fair bit of pain. The current version of the ESA requires that employees be paid equally for equal work, regardless of their employment status (part-time, casual, temporary). Bill 47 would repeal this provision and allow different classes of workers to be paid different wages.  

Takeaways

The employment law landscape has been pretty wild for the past year and the introduction of Bill 47 suggests that things will continue to be so. Employers need to keep complying the with Bill 148 version of the law for now and should continue to ensure that policies and contracts are up to date. If you have questions about the impact of these changes on your workplace, get in touch! We will keep you updated as the legal landscape evolves.

Legal Pot! Drug Testing and Off-Duty Substance Use

Pot has now been legal in Canada for one week! Hell has not frozen over, or broken loose, as far as we can tell. Legal marijuana has been reportedly selling out and even illegal dispensaries are apparently having trouble keeping up. This suggests an uptick in cannabis consumption. I guess some people really were deterred by the small matter of recreational consumption being illegal, prior to last Wednesday.

With seemingly more people using recreational cannabis, questions about the impact of cannabis on the workplace, and particularly the employer’s ability to ban employee use off-duty have been flooding our inboxes.

The big question from the employee perspective seems to be: Can my employer ban me from using cannabis off-duty?

And from the employer:  Can I restrict my employees from using cannabis off-duty? And if so, how much?

We have also been getting questions about the legality of drug testing, now that drugs are purportedly being more heavily used.

Cannabis and the Workplace

Employees have never had the right to come to work impaired. This was the case before cannabis was legalized and is still the case. Employers wouldn’t be expected to tolerate an employee coming to work drunk and the same goes for being high. Employees have an obligation to their jobs competently, safely and to be sober on the job.

In cases where medical cannabis is used, accommodations may need to be put in place to allow some cannabis use on the job, but this will be determined on a case by case basis and in collaboration with the employee, their doctors and the employer. Even employees who use medical cannabis should not be impaired at work.

Banning Cannabis Use Off-Duty

Like many things in the law, especially new areas of the law, things are not yet crystal clear. In some contexts, it may be reasonable for employers to ban cannabis use within a certain time period prior to a shift. This is likely only the case if the employee does a job that is highly safety sensitive and there is a good reason for exerting such control. Again, no employee can show up and work their shift impaired. For example, the CBC reports that Air Canada and Westjet have prohibited cannabis consumption on and off-duty for employees in “safety-critical” positions, like pilots and flight attendants. The same article reports that several police forces have banned cannabis consumption within 28 days of working.

In general, employers cannot reach into the personal lives of their employees and require them to do or not do something. Employees with high profile positions and safety-sensitive positions can be an exception.

Drug Testing

For the most part, employers cannot require employees to submit to random drug tests. For more detail on this see our post on this subject. Generally, in order for a test to be legally permissible, the worker in question needs to be in a safety-sensitive position and the employer needs to have a reason to conduct the test. A reason might be evidence that the employee is smoking cannabis on the job or a workplace accident related to impairment.

Testing is tricky with cannabis because a high level of THC in the system does not necessarily indicate impairment. People also process THC at different rates. This means that a police officer might still have TCH in her system, even if it has been 28 days since she used cannabis.

TakeAways  

While employers can make all the policies they want around refraining from cannabis use off-duty etc. etc., there is no doubt that these will be difficult to enforce. Drug testing should be used sparingly and results will be imprecise. This doesn’t mean that employers should not make their expectations clear. A policy and training is a good way to do this. In safety-sensitive jobs, where impairment creates real risks, testing and restrictions are more acceptable.

The Ontario Government and Changes to Bill 148 and Cannabis Law

Legislatively speaking, a lot has happened in the Ontario workplace law space over the past year. The biggest shake-ups being the Bill 148 changes to the Employment Standards Act and today’s legalization of recreational cannabis. The state of workplace law continues to evolve as the Doug Ford government takes steps to undo the Liberal legislation.

Bill 148 on the Chopping Block

You can read all about Bill 148 on our blog here. Bill 148 ushered in lots of changes, probably the most significant being the increase in the Ontario minimum wage from $11.60 to $14.00. The general minimum wage was set to increase again to $15.00 on January 1, 2019, but the Ford government has announced that this increase will be indefinitely postponed and further that the Bill 148 changes will be “scrapped.” No legislation has been tabled to undo Bill 148 just yet, but it is no doubt coming. We will keep you posted.

Changes to Ontario’s Cannabis Laws

The Ontario Cannabis Act seems to be one other piece of Liberal legislation that Doug Ford does not much like. Today the Cannabis Act comes, in its Liberal form, into force. The Ford government’s comments on their plans to change it have created some confusion about what exactly the law is today.

The current law on recreational cannabis is as set out by the Ontario Liberals. It is more restrictive than the changes tabled by the Ford government. Today recreational cannabis can be legally bought ONLY online through the Ontario Cannabis Store and it can only be legally consumed in private residences or the outdoor space of a private residence. The proposed changes to the law would allow private retail sales of cannabis and legal consumption of cannabis basically anywhere you can smoke a cigarette. It is anticipated that these changes will be in place by April 2019.   

Cannabis and the Workplace

Consumption of cannabis in the workplace is not legally permitted and that is not expected to change. While in most cases employers cannot regulate an employee’s off-duty activities, employees do need to be fit to work, in a sober, safe and effective manner.

Employers can restrict or prohibit alcohol and drug use in the workplace through policies. However, under the current law, people are legally allowed to carry up to 30 grams of cannabis on their person. We can anticipate that cannabis will become a fairly normal host gift, like a bottle of wine. Employers who do not want employees bringing cannabis into work (even if they aren’t going to use it there) will need to set this out clearly in a policy and educate employees about expectations and consequences for breaking the policy.

To google or not to google? Candidate background checks

In the information age it’s usually relatively easy to find out all about someone by doing a simple Google search. The burning question of online daters, “do I google my date before the date?” applies equally to employers. Can, and should, an employer background check a candidate? If so when? And how deep can and should they go?

Background checks are common and are becoming more so. Here is a rundown of some best practices.

What is a background check?

Job candidates might wonder what a background check is and why they are being asked to consent to one. A background check might include a closer look at:

  • Education
  • Professional credentials or registrations
  • Employment history and references
  • Driving record
  • Criminal background
  • Social media presence

This can reveal a lot of personal information. In all circumstances, the information required should be rationally connected to the job on offer. For example, your driving record should only be relevant where the job requires you to drive.

Interview the candidate first!

Going to town on Google once you know only what the applicant has revealed in their application can bring up a litany of information, much of which might touch on Human Rights Code (the Code) protected grounds. For example, googling a candidate might give you easy access to information about their age, gender or ethnicity. While some of this information might be apparent when you meet the candidate, all applicants should equally have an opportunity to present themselves and their qualifications. When an employer gathers outside information prior to a candidate being interviewed, the chances that this might not happen increase.  

Better still would be to take the candidate on their word, make them a conditional offer of employment and then conduct a background check. This ensures that the decision about whether or not to hire is not tainted by Code protected grounds. If something turns up in the background check, the offer can be rescinded based on the fact that it was made conditional on passing the background check.

A further way to avoid tainting the interview and decision-making process is to have a person not making the final decision to conduct the online search and/or to outsource to a third party. This helps separate the roles and keeps the recruitment process focused on actual merit and less exposed to inadvertent human rights complaints.

Can and should employers do this?

As noted above, an employer can ask for a background check but the scope of the check should be rationally connected to the job itself. For example, a police vulnerable sector check makes sense if the job requires the candidate to be alone with small children.  It does not make sense if the job is in a cheese factory.

In most cases, a background check should not be done prior to a conditional offer being made. Checks should also only be done with the candidates consent and only to the extent required to ensure that the applicant is qualified to do the job in question.

Takeaways

The message for employers? Restrain yourselves until you’ve made a provisional hiring decision based on the information the candidate has given to you. Take them at their word prior to digging into their background.

The message for candidates? If a potential employer is asking you for information that doesn’t seem relevant to the job, or if they are asking you to consent to a blanket check as part of the application process, they may not be the employer for you.   

Equal Pay for Midwives

The Ontario Human Rights Tribunal (HRTO) released an interim decision on September 24, 2018 in the application of the Association of Ontario Midwives (AOM) and the Ontario Ministry of Health and Long-Term Care (MOH). The AOM brought an application to the HRTO alleging discrimination on the basis of gender in their compensation by the MOH.  

Midwifery became publicly funded and regulated in Ontario in 1994. Almost all midwives in Ontario are women, they provide services to women and their realm is women’s health. The AOM describes these characteristics as a “gender trifecta” that makes the profession vulnerable. Midwives, as a group, are entitled to equal treatment, without discrimination on the basis of gender regarding how they are compensated by the MOH.

Crudely, pay equity is assessed by identifying a comparator group and assessing compensation of one group against that of the comparator. In the case of the Ontario midwives, the comparator has been community health doctors. In 1994, when midwifery became regulated, 75% of these doctors were male, today less than 50% are male. However, doctoring is still seen as a traditionally male sphere and does not bear the “gender trifecta” of midwifery. The pay of community health doctors has gone up by 76% in the past 20 years, as compared to an increase of only 33% for midwives.

The HRTO’s decision last week directs the parties to “reset their relationship” and attempt to negotiate compensation, an amount of damages for violation of the Human Rights Code and a process for compensation negotiation going forward.  

Implications of this Decision

The decision will have big implications for Ontario midwives, who may see their compensation increase by as much as $90,000 annually to bring them in line with community health doctors. The decision also serves as a reminder of the importance and relevance of pay equity in the workplace. We expect that it will have a ripple effect certainly for midwives across the country and possibly beyond.  

Pay equity legislation was passed in Ontario in 1987, over 30 years ago. The midwives example sadly suggests that it is still relevant and still needed. 2018 has also seen equal pay addressed by the Bill 148 changes to the Employment Standards Act, 2000 legislating equal pay for equal work and by Bill 203, currently making its way through the legislative process, which would introduce pay transparency.

If you have concerns about how much you’re getting paid as compared to your peers or about pay gaps in your workforce,reach out, we’d be happy to chat.

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