York Small Business Enterprise Centre YSBECRecruiting TalentAugust 23, 2016

Presented byStuart E. Rudner

Social Media in the Hiring Process

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POLL TIME!

Human Rights Code

“Every person … has a right to freedom from harassment in

the workplace by the employer or agent of the employer or by

another employee because of…”

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Human Rights Legislation Applies to every stage of the hiring

process– Posting / Advertising– Applications– Interviews– Decision– Offer

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Protected Grounds of Discrimination

Citizenship Ethnic Origin Record of Offences Disability Family Status Creed/Religion Marital status Gender identity Receipt of public

assistance

Age Ancestry, colour,

race Gender Sexual Orientation

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Bona Fide Occupational Requirement

Bona fide Occupational Requirement (BFOR): a skill / attribute that is essential to a job, without which the job cannot be performed

Must Be:– Connected to purpose of employment– Made in good faith and belief for a specific

purpose/goal– Reasonably needed to achieve that purpose or

goal If rule/requirement is a BFOR, exception to

duty to accommodate

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Protect yourself

You don’t want to know any more than you have to

Be careful about chit chat, innocuous questions– Nationality?– Where are you from?– Do you have kids?

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A speck of discrimination can lead to a human rights

claimPrice v. Top Line Roofing Allegation that complainant was dismissed due to his age. Employer put forward evidence to demonstrate legitimate

performance reasons “Straw that broke the camel’s back” was when employee

took unauthorized day off to observe a religious holiday and was promptly fired.

Since that was clearly a part of the reason for the dismissal, the employer was found to be in breach of the human rights legislation

Social Media in The Hiring Process

Dealing with publicly available information online

Courts recognizing Facebook and similar postings not necessarily “private”

Don’t demand access or password

Caution Risk of inaccurate information Take everything with a grain of salt Risk of stumbling

on inappropriate information– Race– Age– Disability

Best Practices: Mitigating Risks

Have consistent protocol for every applicant

Have non-decision maker filter out inappropriate info

Log reasons for hiring and not hiring

Aggressive Recruiting - Inducement &

Misrepresentation– Another area of liability for employers Where employee is enticed to leave one

position and come to another Or is misled Need to be cautious Duty of good faith Leading current case: Antunes v. Limen

Structures Extra damages against employer who falsely

made company out to be more profitable than it was

Contracts

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Why Use Contracts? Increase rights & flexibility Control costs Increase Certainty - Reduce Need for

Lawyers (especially at termination) Customize to your needs Protect corporate interests Restrict post-employment conduct

Employment Agreements

Use them! Do it properly

– Before there’s already an agreement

– With consideration– Explained and understood– Independent legal advice– Conditional

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Consideration Trusty Francis v CIBC –

consideration is critical Before there’s already an

agreement– offer of employment is consideration

If it’s too (offer already made, worker already hired or already working):– Need fresh consideration

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The Need for Consideration Quid pro quo Something of value NO offers / agreements before formal

offer is presented Contracts for existing employees

– Consideration– notice

Employment Agreements Basic Checklist:

– Duties (maintain flexibility)– Remuneration and benefits (maintain

flexibility)– Restrictive Covenants– Vacation– Termination– Probation– No conflicting obligations

Employment Agreements Basic Checklist (cont’d):

– Hours of work– Vacation / holidays– Acceptance of

policies– Conflict of interest– Expenses– Social Media

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Termination Clauses Enforceable if done properly Avoid uncertainty of “reasonable

notice” & reduce dismissal costs Use clear language Don’t go below employment

standards

Termination Clause: A Very Grey Area

Case law is unpredictable Upheld even though harsh, struck down even

with reference to ESA Key: Clarity and ESA Compliance Stevens v. Sifton Properties: breaching

ESA Fixed term employees can be subject to

termination clause, barring which damages for full term if terminated early Howard v. Benson 2016 ONCA

Policies to Protect the Employer

Implementing PoliciesA. Have a policyB. Use clear and unambiguous languageC. Keep the policy up to dateD. Publicize the policyE. Make employees aware of concernsF. Ensure supervisors and managers are

aware of the policy and how to monitorG. Monitor behaviourH. Discipline violators

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Policies - Best Practices Avoid zero tolerance Avoid condonation Teach / train / remind

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Stuart E. Rudnersrudner@rudnermacdonald.com

York Region: 905-530-2484Toronto: 416-640-6402

www.rudnermacdonald.com

@CanadianHRLawConnect with me, join the

Canadian HR Law Group and visit the Rudner MacDonald Pagewww.rudnermacdonald.com/blog

www.hrreporter.com/blog/canadian-hr-law Rudner MacDonald Page

: Canadian HR Law, Rudner MacDonald PageRudner MacDonald channel