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 If something turns up in the background check, the offer can be rescinded based on the fact that it was made conditional on passing the background check.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 last week 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 professional 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 bare 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 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.

Salaried workers, overtime and hours of work

In our connected age, work often creeps beyond the set hours of the workday. See my last post about legislating the right to disconnect for more on this. We often get questions from employers and employees about whether salaried workers should be getting paid for these extra hours and what exactly counts as “overtime.” Let’s dive in.   

Maximum Hours of Work

Under the Ontario Employment Standards Act, 2000 (ESA) most employees can legally work a maximum of 8 hours per day and 48 hours per week.  It is possible for an employer to require that the employee work more than this, but in this case an agreement must be made in writing and the employee must be provided with this information sheet about hours of work and overtime pay first. Other jurisdictions have similar rules.

Getting Paid

The fact that an employee is paid a salary does not change that they are entitled to compensation for all the time that they spend working. If the employment agreement specifies a very clear 40-hour work-week, with no wiggle room for the employer to require them to stay late or come in for special events, then the employee could take the position that their salary compensates them for 40 hours only and that they are entitled to be compensated for any time they work beyond those 40 hours.

If on the other hand, the employment agreement builds in flexibility for the employer regarding hours of work, by for example saying something like:

  • “You will work all the hours required to fulfill the demands of your position” OR
  • “Your typical work week will be 40 hours, but operational needs may dictate that you occasionally work more than 40 hours. Subject to statutory requirements, your salary compensates you for all hours worked”

then the employee is likely not entitled to compensation for time worked beyond their regular 40 hours, unless it’s true overtime, which we will discuss next.

Overtime

The ESA dictates that workers (with some exceptions) are entitled to overtime pay for any time worked beyond 44 hours per week. Overtime is paid at 1½ times the regular rate (i.e. “time and a half”) for each hour over and above 44 hours per week. If the employee is salaried, as opposed to hourly, the overtime rate is calculated by dividing their weekly salary by 44 to arrive at their hourly rate of pay.

If the employee has a very clear work week of 40 hours and a contract with no wiggle room for the employer to require more, their hourly rate will be their salary divided by 40. For these employees who may be entitled to compensation for hours beyond those set out in their contract, they would be paid straight pay, based on this hourly rate, for time above their usual work week up to the 44 hour threshold. At the 44 hour threshold the employee would be entitled to be paid at time and a half.

Exceptions

There are many categories of workers who are exempt from overtime and hours of work legislation. These include lawyers, IT professionals, high level managers, many workers in health care etc. The Ministry of Labour has a user friendly tool for determining which employment rules apply to which jobs.

Takeaways

Employers can save themselves a lot of headaches by tackling overtime and hours of work questions head on both in the employment contract and in good policies. Unaddressed employee claims for unpaid hours of work and overtime can be a big liability. If you think your workplace needs a tune up, feel free to reach out.

Employees who regularly find themselves working long after their supposed “end time” may want to look into whether or not they are being taken advantage of. While some workers are exempt, many people work extra time without claiming the extra compensation they may be entitled to.

To learn more check out my past posts about the ins and outs of overtime, rest periods and breaks.

Bill 164: Amendments to the Ontario Human Rights Code

Bill 164, introduced in October 2017, would expand the current prohibited grounds of discrimination under the Ontario Human Rights Code to include social condition, police records, genetic characteristics and immigration status. We are currently waiting on the Bill to pass, or not. It passed second reading and currently sits with the Standing Committee on Regulations and Private Bills. In its current form, the Bill would amend the Code to prohibit discrimination, or differential treatment on the basis of social condition, police records, genetic characteristics and immigration status. Presently, discrimination on these grounds is allowed in Ontario. Let’s take a look at what these proposed new grounds mean

Social condition

“Social Condition” is defined by the Bill as a social or economic disadvantage which arises from the following:

  • Employment status
  • Source/level of income
  • Housing status, including homelessness
  • Level of education
  • Or any other circumstance that is similar to those mentioned above

Inclusion of this ground would provide greater protections to Ontarians who experience poverty. Imagine applying for a job and not having a fixed address to provide the prospective employer. The present state of the law allows an employer to make a judgment based on your lack of address. If the Code is amended to include this ground, employers will presumably not be able to ask for an address, current salary etc. Job history and educational background will still obviously be relevant to the qualifications for many jobs. We will explore further how the addition of this ground would work in the employment context in a future post should the Bill pass.

Police records

Inclusion of police record is a big deal. Currently, the Code prohibits discrimination on the basis of pardoned criminal convictions. This provides quite narrow protection to anyone with any involvement with the criminal justice system. People are often asked to provide police backgrounds checks in the employment context. These records checks will turn up things like non-convictions records, police contacts, as well as criminal convictions and can easily disqualify applicants. This proposed amendment would mean that an employer or prospective employer could no longer discriminate based on convictions, police contact etc.

As with all Code protected grounds, if being free from criminal convictions was a bona fide occupational requirement, then discrimination would be permitted. This change, would not, for example, mean that convicted sex offenders would be free to work with children.

You can read more about the current state of criminal record checks in employment in our past post here.

Genetic characteristics

The inclusion of genetic characteristics as a protected ground would likely have the biggest impact in the insurance sphere. It would provide protections to an individual on the basis that they either 1) refuse to undergo a genetic test, 2) refuse to disclose their results, or 3) refuse to allow disclosure of said results. Genetic characteristics, or refusal to provide genetic characteristics, would not be permissible reasons to deny insurance coverage.

Immigration status

The Code currently provides protection on the basis of citizenship, race and place of origin. The addition of immigration status would practically eliminate an employer’s ability to discriminate on the basis of Canadian work experience or on the basis of how long someone has been in Canada.

You can read more about these change at the Ontario Human Rights Commission website here. We will keep you posted on any developments!

Legislating the Right to Disconnect

The right to disconnect has been in the news lately following the release of the federal government’s report on their year-long consultations about modernizing the federal Canada Labour Code. Have a look at the full report: What We Heard: Modernizing Federal Labour Standards. 93% of respondents stated that employees should have the right to refuse to respond to work-related communication outside of working hours.

The french example

In France, the right to disconnect was enshrined in law in 2017. French workers in companies of more than 50 people have the right to turn off their work devices outside of working hours. The law was passed amidst concerns about unpaid overtime and increased employee burnout. Digital connectivity was slowly eroding leisure time. France is famously protective of leisure time and work there is highly regulated. The French also enjoy a minimum of five weeks of annual vacation and a standard 35-hour work week.  

French companies have also reportedly taken matters into their own hands by creating workplace rules prohibiting or disabling email sent after hours and prohibiting the scheduling of meetings in the late afternoon.

Is this really necessary?

While getting fired for not checking or responding to an email outside of office hours is not something we commonly see, for many employees who want to impress and rise in the corporate ranks, being connected at all hours is an implicit expectation. The concern is that employees are increasingly stressed and not rested when they return to work.   

Claims for unpaid overtime are also a real concern. Compulsively connected employees may be working lots and lots of unauthorized overtime. When work hours are tracked by the employee alone, an employer will have little recourse in defending against an unpaid overtime claim. Employees have the right to be paid for all hours worked. While working unauthorized overtime hours may warrant discipline, it will not exonerate an employer from having to pay that employee.  

There are concerns that legislating the right to disconnect may go too far. Some employees are legitimately required to be on call. Flexible work schedules are also increasing in popularity. These often blur the lines of work hours and prohibiting communication after hours would make little sense in these cases.

The Canada Labour Code

As I mentioned, the report is about modernizing the federal labour law, so the report is unlikely to have a direct impact on most workplaces in Canada. The vast majority of workplaces are governed by provincial employment standards. The Canada Labour Code governs federally regulated workplaces, which include banking, transportation and telecommunications — approximately 6% of the Canadian workforce.

In Ontario, our employment laws were modernized and overhauled by Bill 148. These changes did not address any right to disconnect. Often, however, a federal change ripples through the provinces — as has recently been the case with the new 18-month parental leave – so the issue may not ultimately remain isolated to federally governed workplaces.

We will stay tuned and see what Justin and his pals decide to do.

Secret Recordings in the Workplace

Technology has impacted our privacy in a myriad of ways. One crafty use of technology that we see more and more in workplace disputes, is employee made audio recordings. Employees are turning on their voice memo apps before they go into important meetings and covertly recording their conversations. While undeniably an audio recording is great evidence of what was said, the practice raises concerns and questions.

Is this a crime?

Recording a conversation that you are a part of is not a crime. This is the case even if the other party to the conversation has no idea they are being recorded.

Secretly recording a conversation that you are not a part of is a crime. So bugging the office washroom or the CEO’s office is (obviously) not a good idea.

Is it a violation of workplace policy?

Even if it’s not a crime, recording your employee, employer or a co-worker without their knowledge erodes trust and infringes on their privacy. While employers may not have a specific line in a policy document that says “It is prohibited to secretly record your conversations with others” this doesn’t mean it may not attract discipline and may not breach privacy and confidentiality obligations generally.  

When the recording comes out  

In a litigation situation, such as a lawsuit, grievance arbitration, or a human rights application, each side must exchange any material they have that is relevant. Even if the recording party decides that the recording is not going to help their case, it must be produced. Generally, the recording would have to be produced even if the employee did not plan to use the recording in the litigation.

In the labour relations context, some arbitrators have refused to admit recordings, even where the union wanted to use them because of their damaging effect on the relationship between the union and the employer.

Those in non-unionized workplaces should also be mindful of how the fact of a secret recording will make the recording party look. Even where relations between the parties have already soured, the fact of a secret recording often won’t do much to endear the recording party to the judge. See for example the 2017 case of Hart v. Parrish & Heimbecker, Limited, where the plaintiff’s recordings backfired. The judge found that his conduct in surreptitiously recording meetings between him and his managers violated his confidentiality and privacy obligations. The fact of these recordings strengthened the employer dismissal for cause case.  

What should employers do?

With the ubiquity of smartphones, and the ease with which anyone can make a high quality recording, it’s not a bad idea to have a policy in place that clearly prohibits recording in the workplace without the consent of all involved in the conversation. Similarly, employers should not record conversations with employees without first obtaining employee consent.

If you have questions about technology, privacy or workplace recordings get in touch. We would be happy to chat.

Public Holidays and Retail Business

Summer is almost over. I’m looking forward to kids going back to school and enjoying our last public holiday of the season. On the topic of public holidays; I’ve blogged aboutLabour Day in the past and we have followed along with the various changes (and reversals of those changes) made by Bill 148 to the Ontario Employment Standards Act public holiday pay rules. You can read all about Bill 148 here and about public holiday pay specifically here.

There has also been talk from Ottawa in the past month about plans to introduce a national statutory holiday to mark the legacy of residential schools. The day will be called National Day for Truth and Reconciliation. Negotiations about the date on which the holiday should be held are ongoing. June 21, which is National Indigenous Peoples Day, is reportedly too close to Canada Day and St. Jean Baptiste Day, a public holiday celebrated in Quebec. An alternative would be September 30, Orange Shirt Day.

One thing that a new public holiday can mean is more public holiday pay for employees. There are various employment standards around public holidays, as well as legal issues around what businesses can be open. Here is a quick primer.

The Retail Business Holidays Act

The Ontario Retail Business Holidays Act (the Act) says that a retail business must be closed on the following nine public holidays every year:

  1. New Year’s Day (January 1)
  2. Family Day (the third Monday of February)
  3. Good Friday (the Friday before Easter Sunday – typically in March or April)
  4. Easter Sunday (typically in March or April)
  5. Victoria Day (the last Monday before or on May 24)
  6. Canada Day (July 1 – if July 1 is a Sunday, the mandatory closure moves to the following Monday)
  7. Labour Day (the first Monday in September)
  8. Thanksgiving Day (the second Monday in October)
  9. Christmas Day (December 25)

These means that a good chunk of the retail (and other) workforce gets the day off. However, municipalities can pass their own by-laws to circumvent the Act. The Act also explicitly states that it does not apply to the City of Toronto.

If a municipality does not pass its own by-law with respect to public holiday closures, there are some exceptions contained in the Act for small stores, pharmacies, tourist establishments, art galleries and others. For a complete list see section 3 of the Act.

All this to say, there are a lot of people who will be working on public holidays.

Working on a Public Holiday

In Ontario, if the employer and employee agree in writing, the employee may work on the public holiday at their regular pay rate and take another working day off with public holiday pay or, also only if agreed in writing, the employee may work on the public holiday at a premium rate for each hour worked, plus be paid public holiday pay for the day.

Check out the Ministry of Labour’s public holiday pay calculator to determine how much public holiday pay should be. The premium rate described in this section is 1.5 times the employee’s normal rate of pay.

Check out the Ministry of Labour’s handy guide on public holidays for more information about various options and scenarios. For example, what if the public holiday falls during an employee’s vacation or the employee is working but leaves early on the public holiday?

For help with the complexities of public holidays, or any other employment standards question get in touch!  

After a Key Employee Leaves

Further to our post last week about key employees leaving, employers may wonder about risks to their business and options for recourse if that key employee leaves and sets up a competing shop next door.

There are three main potential risks presented by a departing key employee:

  • Misuse of employer confidential information
  • Setting up a competing business
  • Soliciting former employer customers

These are risks we try to mitigate for at the outset of the employment relationship with good contracts and restrictive covenant agreements. The end of the employment relationship is when the risks become live.  

Misuse of confidential information

Departing employees are prohibited, at common law, from using confidential employer information, such as trade secrets, to compete with the former employer. Most employment contracts will also contain provisions restricting employees from using confidential information or work product for any purpose outside of the company. This restriction is indefinite.

If a former employee has stolen confidential employer information and is using it to the detriment of the employer’s business, the employer will have options to take action.

Competing with the Employer

While a former employee cannot legally use the employer’s confidential information to compete with the former employer, unless they entered into a non-competition agreement they are otherwise free to compete.

As I’ve discussed in the past, non-competition agreements are preemptively unenforceable. Courts see the restriction of competition as a restraint of trade and contrary to public policy. A reasonable non-compete agreement may be enforceable if the employer’s business is particularly vulnerable to competition by the former employee and if the covenant is limited in terms of activities, time and geographic scope. It will not be possible to prevent a former employee from competing indefinitely.

Solicitation of Clients

Even in the absence of a contractual non-solicitation provision, departing key employees may still be prohibited from soliciting the former employer’s clients. This will be the case if they held the position of a fiduciary. If the employee was a fiduciary, they held a responsibility to put the employer’s interests ahead of their own. Where a departing employee has the ability to affect the former employer’s business because of their unique position of trust, they cannot use that position against the former employer.

If the departing employee was not a fiduciary, restrictions can be placed on their ability to solicit the former employer’s client and customers by way of a non-solicitation agreement. This should be done at the outset of the employment relationship. If there is no non-solicitation agreement, the employer will be vulnerable.

Like non-competition agreements, non-solicitation agreements are presumed to be unenforceable and must, therefore, be similarly reasonable. In general, non-solicitation agreements are easier to enforce than non-competition agreements.

What to do

If the former employee is committing one of the above sins and immediate harm is coming to the employer’s business, the employer can go to court seeking an injunction. A successful injunction will require the employee to stop what they are doing immediately while the employer’s lawsuit against the former employee makes its way through the court system. To successfully achieve an injunction an employer must satisfy the following test:

  1. There is a serious issue to be tried
  2. There is a threat of irreparable harm to the former employer if the prohibited activity continues
  3. The balance of convenience favours the employer — which party will suffer the most harm from either the granting or refusing of the injunction

Get Help!

A departing key employee can do serious harm to a business. Concerned employers should get legal advice regarding their options. As the saying goes, the best offence is a good defence. Consult a lawyer at the beginning of the employment relationship to set up enforceable contracts and restrictive covenants and prevent issues down the road.

If you would like help navigating the complexities of key employee relationships get in touch!

Another Cannabis Update

This post is a quick update to our past posts on the legalization of cannabis. You can see everything we have written about the legalization of cannabis and how to prepare your workplace here.

More changes are afoot to Ontario’s planned rollout of recreational cannabis. The Doug Ford government has reversed the previous administration’s plan to sell cannabis through government-owned stores only. The latest is that cannabis will be available for sale through the government owed Ontario Cannabis Store online only on October 17, 2018. It is projected that private retailers will be able to sell recreational cannabis starting April 1, 2019. The private stores will be “tightly regulated.” The Ontario Cannabis Store will be the wholesale supplier to these private stores. Private stores currently selling cannabis are doing so illegally.

Public consumption of cannabis will not be permitted, this includes consumption in the workplace. Employees requiring accommodation for their use of medical cannabis will be subject to different standards.

If you have questions about the impact of the legalization of cannabis on your workplace, get in touch.

When Key Employees Leave

High turnover is a growing issue for companies. As I’ve written in the past, the Millennial generation are quick to jump ship for a better opportunity or when they feel the values of the company no longer match their own. Employers need to prepare themselves for the inevitable departures of key employees.

Considerations When a Key Employee Quits

When a key employee quits, while employers may be upset it’s best to put those emotions on the back burner and have a plan. In some situations, it may be worth it to start out the conversation by asking if there is anything the organization can do to retain the employee. If these efforts fail and the employee is for sure on their way out the following are important considerations.

Notice

Talk to the employee about how much notice is reasonable. If the employee has an employment contract, this may speak to how much notice they must provide upon resignation, if any. If it does not, ask the employee what he or she thinks is reasonable. In the absence of an employment contract term, there is no statutory obligation for employees to provide any notice.

While many employers find soon to be ex-employees a liability in the office, in certain key roles the company may have a hard time running without them. Depending on the employee’s role, they may have a duty to make sure their transition is smooth and that no harm comes to the company from their departure.

Reasonable notice for a departing key employee has been held to mean the amount of time it would take the employer to hire and train a replacement. Check out the Ontario Court of Appeal’s comments in GasTOPS Ltd. v. Forsyth for more on this.

Confidentiality and Restrictive Covenants

The departing key employee may be subject to certain obligations that will continue beyond the end of their employment. These include confidentiality agreements, non-competition and non-solicitation agreements. Likely the employee would have entered into these agreements as a condition of their employment when they joined the company. It is a good practice to review the terms of these agreements and remind the departing employee of their continuing obligations. If there are concerns, for example, the employee is leaving for a job at a competing company or the employee is leaving and taking existing clients or staff with them, consult a lawyer to review your options.

It is also important to ensure that confidential information about the company remains confidential. Most confidentiality agreements will also prohibit the departing employee from using confidential information about the company for any purpose other than their job at the company.

Protect Digital Data

Key employees likely have wide access to critical company data. Employers will want to take steps to protect data and to verify that data has not been stolen prior to the employee giving notice. IT support should be able to provide information about what the employee has been forwarding or downloading, as well as what devices have recently been connected to the employee’s computer.  

Exit Interview

The moment when an employee leaves often presents a great opportunity for the employer to get candid feedback on their experience at the company. This feedback can be valuable in helping the company to fix issues that may not be visible to upper management.

Communication to the Rest of the Office

The departure of a key employee can create uncertainty and destabilize the rest of the office, let alone impact the value of the company if the key employee is particularly high profile. The employer should be mindful of the effect that the departure can have and take steps to ensure consistent, positive messaging and a smooth transition plan.

Think Ahead!

A good set up at the beginning of the employment relationship will go a long way to ensure a smooth ending. Prior to bringing key employees on, or promoting them from inside, employers should prepare employment contracts that address issues such as reasonable notice on resignation, confidentiality, non-solicitation and non-competition.  

LexBlog