Hiring is a key HR function, involving everything from analyzing job requirements, drafting job descriptions and postings, attracting suitable candidates, screening and selecting applicants and then integrating new employees into the organization. As this Forbes article notes, recruitment and hiring is a core and complex function of HR. At each stage of the hiring process there are important legal obligations that employers – and HR professionals – need to be aware of.
1. Job Postings and Advertisements
Hiring starts with a job posting and advertising, and in some cases the completion of an application form. The creation of a job posting and application requires an understanding of organizational requirements and matching skill sets, but it also requires knowledge of your legal obligations. Three types of legislation impact on job postings and applications:
- Human rights legislation
- Pay transparency legislation (in some jurisdictions); and
- Official languages legislation (in Quebec and the federal jurisdiction).
Hiring and Human Rights
Every jurisdiction in Canada has human rights legislation that applies to employers, and that legislation generally prohibits employers from advertising a job or using an application form that expresses a limitation, specification or preference based on a “prohibited ground of discrimination” (see our article “Human Rights – 4 Employer Obligations” for more info). When drafting a job posting or application, you need to ensure that nothing in the posting or application expresses a limitation, specification or preference for a candidate based on a prohibited ground.
The prohibited grounds of discrimination are largely the same in each jurisdiction, but there are some differences. Every jurisdiction includes the following prohibited grounds:
- Nationality or national origin
- Sexual orientation
- Gender identity
- Marital status
- Family status
Some jurisdictions include other prohibited grounds. Depending on the jurisdiction, the following may also be prohibited grounds:
- Criminal or summary conviction (in some jurisdictions that include this, it is only a prohibited ground if it is unrelated to the employment but in others there is no such restriction)
- Political belief, political association or political activity
- Source of income
- Social condition or social disadvantage
- Genetic characteristics (including refusal to undergo a genetic test or to disclose the results of a genetic test)
There may be an exception that allows for discrimination in a job advertisement or application if it is for a bona fide occupational requirement or meets the requirements of a special program. These exceptions are not the same in every jurisdiction though, so if you are creating a job advertisement or application that will be used in multiple jurisdictions, you need to ensure that it complies with the requirements in each jurisdiction.
Hiring and Pay Transparency
Six Canadian jurisdictions currently have pay transparency laws enacted or in the process of being enacted.
Most pay transparency legislation requires employers to include pay information in public job postings. For example, pay transparency legislation in Prince Edward Island requires that employers who publicly advertise a job posting must include information in the posting about the expected pay or the range of expected pay for the position.
The legislation in British Columbia and proposed legislation in Newfoundland and Labrador includes a similar requirement, as does the legislation in Ontario. The provisions dealing with job postings in British Columbia come into effect on November 1, 2023. For BC employers, this means that as of November 1 the salary or wage (or salary or wage range) for a job must be included in any publicly advertised job posting. Our article on pay transparency provides more information on this topic.
Hiring and Official Languages
Quebec and the federal jurisdiction both have official languages legislation. In Quebec, employers that publish a position (as part of recruitment, hiring, transfer or promotion) in a language other than French must publish the position simultaneously in French. The French publication must use the same means of transmission and reach a target audience of proportionally comparable size. For more information on official languages requirements in Quebec, see our article.
When hiring, the law prohibits employers from asking candidates certain questions. There are two main prohibitions:
- You cannot ask questions that express a limitation, specification or preference based on a prohibited ground under human rights legislation; and
- You cannot ask candidates about their wage history.
Hiring and Human Rights
As with a job posting and application, you cannot make written or oral inquiries that express a limitation, specification, or preference based on prohibited grounds under human rights legislation (unless the jurisdiction includes an exception). Here are three key points to keep in mind when interviewing:
- Questions (or discussion) in an interview that are based on a prohibited ground may be interpreted as expressing a limitation, specification or preference. A candidate who is asked about their ancestry or their marital status may assume that the reason you are asking is because a particular answer is preferred.
- Even casual conversation at the beginning or end of an interview can violate this prohibition. It is normal to engage in a bit of small talk at the beginning of an interview, and you may even want to ask some casual/conversational questions to help the candidate relax. Or, you may have developed a friendly rapport with someone during the interview which can naturally lead to a discussion of shared experiences or background. In this context, it can be easy to slip into asking questions about someone’s family or their background (or other prohibited ground). You need to avoid this, which may mean avoiding small talk altogether. Prepare a list of questions that are based on the specific job requirements and stick to the list.
- Many jurisdictions allow you to ask questions based on a prohibited ground if they are for a bona fide occupational requirement. For example, if you are interviewing for a position that will require someone to obtain a certification or license that has a minimum age requirement, it may be permissible to ask them their age. The key is to ensure that you understand the occupational requirements and only ask questions that are relevant to the occupational requirement.
Hiring and Pay Transparency
In every jurisdiction with pay transparency legislation or proposed pay transparency legislation (other than Federal), the legislation prohibits employers from asking about wage history. Most jurisdictions include some exceptions to this, such as if an applicant voluntarily discloses their wage history. When hiring, be sure to understand the prohibition and exceptions in each jurisdiction.
3. Pay Requirements
When hiring, you also need to be aware of pay requirements. These include equal pay requirements and requirements to provide certain pay related information to new hires.
Equal pay requirements exist across Canada. These obligations are found in either human rights legislation or in employment standards legislation. Generally, employers cannot pay one employee less than another on the basis of sex when they perform the same or substantially similar work. In some jurisdictions the equal pay requirement extends to other prohibited grounds as well, such that you cannot pay one employees less than another employee on the basis of any prohibited ground when they perform the same or substantially similar work. When negotiating salary with a new hire, it is important to remember your obligations with respect to equal pay.
Some jurisdictions also require employers to provide new hires with certain pay information. For example, in Prince Edward Island, tips and gratuities can be pooled for the benefit of some or all employees, but employees must be advised of this practice in writing at the time of hiring.
4. Communications to New Hires
On hiring, there are certain communications that must be provided to new employees. For example, in Ontario an employer with 25 or more employees is required to have a disconnecting from work policy and an electronic monitoring policy. These polices must be provided to a new hire within 30 days of them becoming an employee.
And federally regulated employers must provide employees with the following within 30 days of them becoming an employee:
- a copy of government materials setting out employers’ and employees’ rights and obligations under Part III of the Code;
- a written statement containing information relating to their employment.
These are just two examples. Ensure that you have a complete list of communications and information that must be provided to new hires. And remember that these requirements will vary from province to province.
Hiring and Compliance Works
Hiring obligations are spread over a variety of legislation – everything from employment standards, health and safety, human rights, pay transparency and official languages. Knowing where to look to identify all of your obligations is challenging. Compliance Works makes it easy to identify all of your requirements by covering 8 areas of law and pulling together related requirements from Acts and Regulations, providing you with confidence that you have it all covered.