THE HIRING PROCESS – DO’S AND DON’TS
BEFORE THE INTERVIEW:
Create a uniform hiring process for all applicants:
Draft interview questions in advance based on the essential duties and requirements of the position. Develop the “answers” and assess applicants based on these objective criteria. Ask all applicants the same questions. These measures guard against informal, subjective assessments entering human-resource decision-making.
Use an application form to screen applicants:
Application forms are simple tools to supplement an application with relevant information. These forms should include a basic job description and a Statement of Qualification for the applicant to affirm their qualifications for that job; this will assist in screening applicants who overstate their qualifications.
Prepare a panel of interviewers, if possible, to assess applicants according to the hiring process:
A panel assessing an applicant’s answers allows for a more diverse and objective perspective. A panel will also provide multiple witnesses to the interview, one of whom should record thorough notes.
Offer to accommodate an applicant, if he or she requires accommodation, before the interview:
Applicants are generally responsible to inform potential employers of their needs and to provide adequate detail for the employer to respond accordingly. Once aware of the need to accommodate, employers should co-operate with the applicant in creating an interview or hiring mechanism that addresses the duty to accommodate arising under both human rights legislation and Ontario’s Accessibility for Ontarians with Disability Act, 2005, S.O. 2005, c. 11, as amended.
Exercise caution when actively recruiting an applicant from a long-term employment position:
Employers should be cautious when engaging in active recruitment of applicants who are employed in a stable, long-term position. Applicants who are induced to terminate their stable, long-term employment for a new opportunity may have a lengthened term of service with their new employer.
Make hiring decisions using informal, ad hoc. processes or decision-making:
While an informal conversation with an applicant may be appealing, an uncontrolled, subjective process can lead to subconscious bias and, in some cases, discrimination allegations. Having a plan and a written procedure before an interview will give structure and objectivity to the interview process.
An interviewer who is unprepared for an interviewee will tend to focus on a person’s superficial characteristics rather than the interviewee’s merit.
Use social media screening without the consent of the applicant and without considering whether you need such personal information:
An employer must obtain an applicant’s consent to collect their personal information. Personal information on social media is no different. An employer should not attempt to skirt privacy rules by using their personal account to screen an applicant or rely on a third party to conduct the screening.
Rely on the information on social media to the exclusion of traditional sources of personal information:
In general, employers should be wary that the information obtained on social media may be unreliable or inaccurate, and is usually unnecessary.
Ask for reference contacts without intention to contact them:
Asking for references is an indication that those references will be contacted. An employer who makes a hiring decision without making use of information that would have been available through a reference check may become open to legal liability for information they ought to have known.
DURING THE INTERVIEW:
Ask an applicant about his or her qualifications, relevant experience, training and previous positions:
Human rights and privacy laws do not limit the right of employers to obtain legitimate information about the people they may hire. All interview questions and topics must be designed to elicit job-related information concerning the applicant’s relevant knowledge, skills and ability to perform the key duties of the position.
Describe the job requirements, such as overtime, weekend work or travel:
Framing questions in terms of job requirements is an effective way of removing discriminatory elements in questions.
Ask the applicant to affirm their qualifications:
An applicant should be asked to review the Statement of Qualification included in the application form and to sign that statement if they have not done so already.
Take notes, take notes, take notes:
Taking and retaining notes and other written records of the interview will provide contemporaneous evidence in any potential discrimination claim before a human rights tribunal or the Courts. While taking notes cannot immunize employers to claims, once started, such evidence can be a powerful tool to defend against a claim
Ask questions that provide information regarding a prohibited ground of discrimination:
The following is a non-exhaustive list of general topics to avoid in an interview:
- Race, colour, ancestry or place of origin:
If you need information about an applicant’s immigration status, simply ask whether the applicant is legally entitled to work in Canada. Avoid asking other questions related to a person’s educational institution, last name or any clubs or affiliations that are designed to indicate their race, ancestry or place of origin.
Employers may not ask about a person’s citizenship unless Canadian citizenship or permanent residency is a legitimate job requirement. In all other cases, employers should restrict their inquiry to whether the applicant is legally entitled to work in Canada.
- Religious beliefs or customs:
Employers may not ask about a person’s religious beliefs or customs. If you need information about when an applicant can work, ask whether he or she can work overtime or weekends if that is a legitimate job requirement.
- Gender identity and sexual orientation:
There is rarely (if ever) a reason you need to know an applicant’s sexual orientation. Questions about a person’s personal relationships should be completely avoided in almost all cases. Gender identity-related questions should never be asked.
- Marital or family status:
Instead of asking about a person’s family or marital status, simply ask if the applicant can work the hours required of the position or if they are able to travel or relocate.
- Physical or mental disability:
Avoid asking about an applicant’s general state of physical or mental health or any history of sick leaves, absences and workers’ compensation claims. Employers may, however, ask the applicant whether they are able to perform the essential duties of the position and describe the physical and mental requirements of the position.
Avoid questions about gender, including questions about pregnancy, breastfeeding, childcare arrangements and plans to have children.
While employers may ask an applicant for their birthdate upon hiring, the age of the applicant is rarely relevant unless there is a question as to whether the applicant has reached the legal working age, which varies from province to province.
- Criminal or summary convictions:
In general, employers may ask the applicant about their criminal record where there is a legitimate reason to know, such as when the job involves a position of trust or working with vulnerable persons. If this is need-to-know information, require a police and judicial matters check as a condition to hiring the interviewee.
- Former names:
Avoid asking a person about their former names unless needed to verify previous employment and education records. Avoid asking about names to determine someone’s origin, maiden name or whether the person is related to another person.
What languages an applicant speaks may cross the line if they are really disguising questions about race, place of origin or ancestry. The exception is, obviously, where the ability to communicate in certain languages is specifically required for the position.
- Source of income:
It is recommended that employers avoid asking about an applicant’s source of income, as this is irrelevant, and some sources have a social stigma attached to them, such as social assistance, disability pension and child maintenance.
- Genetic characteristics:
Employers should avoid asking an applicant about the results of a genetic test (23andme, Ancestry, etc.) and should avoid making decisions based on that applicant’s genetic traits, including traits that may cause or increase the risk to develop a disorder or disease.
Ask questions designed to elicit irrelevant information or information unrelated to the legitimate job requirements:
Privacy laws require that employers only collect personal information that a reasonable person would consider appropriate in the circumstances. Again, the employer must only do so with the consent of the applicant. The best practice is to only collect information that is reasonably necessary to make a hiring decision.
AFTER THE INTERVIEW:
Keep the interview notes and documentation for as long as possible:
Employers should keep all materials from the hiring process for as long as necessary to comply with applicable legislation and protect themselves from any possible litigation. At a minimum, it should be two years from the date of the initial interview.
Ask the selected individual(s) for further information:
Once hired, it is permissible to ask a person for further documentation necessary to maintain and establish the employment relationship if there is a legitimate need for that information. When an offer of employment is accepted (or conditional on certain checks being completed with the consent of the individual), it will generally be necessary to collect an employee’s birth date, social insurance number, personal contact information and all other personal information needed to establish the relationship, including information needed to enroll the employee in benefits plans and payroll.
This is a summary only, intended to be for your general information only. We recommend that you contact us, or other qualified employment law counsel, for specific advice that may apply to, or be helpful for, any specific interview you conduct, or employment offer you may wish to make, in future, including with respect to your hiring and recruiting practices generally.
© WARDS LAWYERSPC