Allen Craig, Gowling Lafleur Henderson LLP www.gowlings.com
In-house counsel will inevitably be called upon to advise on issues dealing with an organization's recruitment process. In attending to such inquiries, counsel must appreciate certain differences between Canadian and United States laws, in particular. Below are ten tips for dealing with the challenges of responding to recruitment inquiries.
1. Ascertain whether your business undertaking is regulated pursuant to federal or provincial employment laws.
The laws addressing the recruitment process and, as such, discriminatory hiring practices, will be governed by either (i) federal human rights and privacy legislation, for those companies federally regulated, or (ii) provincial human rights legislation (and where applicable, privacy legislation) for provincially regulated companies. It is further critical to appreciate that the headings of discrimination from one jurisdiction to another will vary. Accordingly, in-house counsel will be required to ensure that they are familiar with the applicable human rights and privacy legislation in each of the respective jurisdictions within which business operations are conducted.
2. Appreciate the distinction between Canadian and US jurisprudence and arbitral decisions as pertaining to drug and alcohol testing.
Legislation as well as judicial and arbitral pronouncements treat the subject of drug testing from both a pre- and post-hiring perspective in a manner significantly distinct from the way in which such testing is addressed in the United States. It is critical that in-house counsel be cognisant of the manner in which the courts, arbitrators and human rights tribunals, in the jurisdictions within which they operate address these sensitive matters. Human rights legislation and jurisprudence in the Canadian jurisdictions define substance abuse and substance dependence as disabilities. Most workplace alcohol and drug testing will be prima facie discriminatory and the employer will have to attempt to justify it as a bona fide occupational requirement ("BFOR"). In unionized workplaces, arbitrators apply both human rights law and a "balancing of interests" test. As a result, arbitral awards may prohibit types of testing such as random alcohol testing that might have been justifiable as a BFOR in a non-union workplace.
3. Be aware of the human rights requirements for "accommodation" with regard to recruitment and offers of employment.
Canadian law clearly establishes an onus upon employers to provide return-to-work accommodations where employees are injured in the course of their employment and/or experience or are subject to a "handicap" or "disability" as defined by applicable human rights legislation. In certain instances, inquiries as to the necessity for an accommodation of a prospective employee may not be addressed until a formal offer of employment has been made to the candidate.
4. Be mindful of immigration rules and regulations with respect to cross border hires and transfers.
There are number of preliminary requirements that must be attended to in order to secure a timely and successful placement or transfer of an individual from another country into Canada. While the North American Free Trade Agreement is the primary means of entering into Canada for business purposes for citizens of the United States and Mexico, do not assume that each and every entry of an individual into Canada will not require preliminary consideration and, in most instances, supporting paperwork to confirm the legitimacy of the individual's visit or stay in Canada.
5. Ensure minimum standards of employment law compliance in drafting employment offers.
An employer's failure to ensure that minimum employment standards are protected as within an employment offer will, in many instances, lead to the entire contract being deemed null and void or, at a minimum, being deemed to be void with respect to certain key areas if such areas were not properly drafted in accordance with applicable legislation. You should pay particular attention to termination of employment clauses addressing advance notice or pay in lieu of notice.
6. Appreciate the sensitivity within Canadian employment judicial awards with respect to non-competition provisions.
Canadian courts are extremely reluctant to uphold non-competition clauses wherein an individual is prevented from earning a living even for a limited period of time. In order for such clauses to be upheld, strict enforceability tests are considered and will be closely scrutinized if relied upon.
7. Understand the realty of the existence of employment contracts and the absence of "employment at will".
For the most part, employment contracts will be considered valid absent their terms and conditions having been committed to writing. As such, even a simply verbal offer of employment will form a contract as between the employee and employer at Canadian law. Unlike the United States, Canada does not have at-will employment, and terminations will either be addressed by way of employment contract or, as is more common, for cause or without cause. Absent cause for the termination of an individual's employment, employers will be expected to provide pay and benefit continuation in lieu of what would be considered to be reasonable notice of the termination, should such considerations not have been addressed in an employment contract. In certain instances, these awards have, indeed, exceeded 24 months.
8. Be conscious of inappropriate recruiting inquiries that may be considered unfair labour practices.
Applicable labour relations legislation as within each of Canada's respective jurisdictions severely prohibit an employer from inquiring as to an individual's preference or support for unionization. Indeed, such inquiries may form the basis for an unfair labour practice charge by a candidate whose application for employment has been rejected on the basis that his or her views on unionization differ from those of the company.
9. Appreciate whether employment equity legislation or federal contractor requirements apply to the organization.
Employment equity legislation exists within certain, but not all, jurisdictions. In-house counsel should be keenly aware of what requirements an organization may have to comply with in this regard. Similarly, federal contractor program requirements may be applicable, predicated upon the dollar value of a contract with the federal government as well as the number of employees within the organization itself.
10. Understand the distinctiveness of Québec.
While many of the above-referenced cautions are applicable in all jurisdictions within Canada, it is imperative that in-house counsel appreciate that laws as pertaining to recruitment and, for that matter, employment and labour relations issues, are governed by specific provisions of the Civil Code of Québec. As common law principles generally followed in most other jurisdictions with respect to employment laws do not necessarily apply in Québec, it is strongly recommended that experienced local employment counsel be retained.