January 31, 2020
by Anthony Panacci, J.D.
The benefits of good oral hygiene are undeniable. Nonetheless, patients often forego a proper hygiene routine only to end up under the spotlight for a painful root canal. In much the same way, employers often overlook proactive hiring practices only to find themselves in a precarious position when faced with a lawsuit by a disgruntled employee or job applicant.
This article provides dental practices with 5 proactive tips to reduce some of the legal risks that arise when hiring employees.
1. Understand and comply with the Human Rights Code
During the hiring process, an employer is prohibited from discriminating against a candidate based on certain characteristics such as the candidate’s age, citizenship, religious beliefs (which might prevent an employee from working on religious holidays), or disability (which might require the employer to provide accommodation). Employers are also prohibited from asking certain questions during interviews, regardless of whether those questions will influence the hiring decision.
For example, an employer could violate the Human Rights Code by:
• stating in a job posting that only female applicants will be considered for a receptionist vacancy;
• attempting to establish rapport during an interview by asking candidates about their cultural heritage or their family status; and
• requiring a candidate to prove that he or she is a permanent resident of Canada or that he or she is permanently eligible to work in Canada.
2. Understand and comply with the Accessibility for Ontarians with Disabilities Act, 2005
In Ontario, employers must notify candidates about the availability of accommodation. Specifically:
• an employer must notify its employees and the public about the availability of disability-related accommodation in the recruitment process;
• when selecting job applicants to participate in an assessment or selection process, an employer must notify the applicants that accommodations are available upon request in relation to the materials or processes to be used; and
• when extending an offer of employment to the successful candidate, an employer must notify the candidate about its policies for accommodating employees with disabilities.
3. Use structured interviews and a multi-person panel
Before interviewing candidates, an employer should develop a list of questions accompanied by a marking scheme with the desired answers. The questions and answers should be targeted to the job’s essential duties. Each candidate should be asked all of the questions on the list, as this will establish an objective basis to compare and contrast each of the candidates. In addition, the interviews should be conducted by a multi-person panel that reflects the diversity of the workplace.
This approach will reduce the risk of violating human rights legislation as well as the risk of making subjective decisions based on potentially discriminatory considerations. The approach also creates a paper trail that an employer can use to defend itself in a legal proceeding.
4. Conduct background and reference checks appropriately and with caution
Candidates are typically on their best behaviour during the hiring process, and they rarely divulge information that portrays them in a poor light. Reference and background checks are useful tools to capture a more complete and accurate “picture”. But employers should conduct background checks with caution due to the potential for unintended consequences and legal liability.
With that in mind, employers should proceed with a particular background check only after ensuring that the potential benefits outweigh the potential consequences. For example, the potential benefits of a social media check rarely outweigh the potential consequences – social media checks typically reveal a wealth of irrelevant and unwanted information that can tarnish the decision making process and expose an employer to liability.
Before proceeding with a background check, an employer should: (1) notify the candidate of the specific reference and background checks that will be conducted; and (2) obtain the candidate’s consent before conducting the checks.
In addition, the checks should be conducted after the candidate has been presented with a written offer of employment that is conditional on satisfactory background and reference checks.
5. Present the successful candidate a conditional offer of employment in writing
A written employment contract is one of the most effective tools an employer has at its disposal. A written contract allows an employer and an employee to understand each other’s expectations. More importantly, a written contract can significantly limit an employer’s legal exposure and potential liability.
For example, a written contract can limit an employee’s entitlements at the time of termination. Without a carefully drafted contractual termination clause, employees will generally be entitled to common law reasonable notice, even during their first three months of employment. In most cases common law notice is significantly greater than the minimum notice and severance entitlements established by employment standards legislation. To illustrate this point, in some cases long-service employees have been found by courts to be entitled to more than 24 months’ notice of termination – an outcome that could have been avoided with a well-drafted employment contract.
Given that employment contracts will be enforced only if a number of requirements are satisfied, we recommend that employers seek legal advice before initiating the recruitment process.
Implementing these five hygienic hiring practices at the outset will limit an employer’s exposure to liability, and can save the time, expense, and headache of a protracted legal proceeding down the line.
About the Author
Anthony Panacci, J.D. is a lawyer with Filion Wakely Thorup Angeletti LLP, one of Canada’s leading management-side labour and employment law firms. Anthony provides advice to both unionized and non-unionized organizations on all aspects of the employment relationship. This includes helping employers with hiring, terminations, health and safety matters, and employment policies. You may contact him by phone at 416.408.5568; by email at firstname.lastname@example.org.; or in person at 333 Bay Street, Suite 2500, Box 44, Toronto, Ontario, M5H 2R2.
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