Stuart's presentation at the York Small Business Enterprise Centre on social media in the hiring process.

1. York Small Business Enterprise Centre YSBEC
Recruiting Talent
August 23, 2016
Presented by
Stuart E. Rudner
Social Media in the Hiring
Process

2. POLL TIME!
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3. 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…”

4. Human Rights Legislation
 Applies to every stage of the hiring
process
– Posting / Advertising
– Applications
– Interviews
– Decision
– Offer
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5. 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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6. 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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7. 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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8. A speck of discrimination can
lead to a human rights claim
Price 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
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9. 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

10. Caution
 Risk of inaccurate information
 Take everything with a grain of salt
 Risk of stumbling
on inappropriate information
– Race
– Age
– Disability

11. 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

12. 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

13. Contracts

14. 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
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15. Employment
Agreements
 Use them!
 Do it properly
– Before there’s already an agreement
– With consideration
– Explained and understood
– Independent legal advice
– Conditional

16. 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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17. The Need for Consideration
 Quid pro quo
 Something of value
 NO offers / agreements before formal
offer is presented
 Contracts for existing employees
– Consideration
– notice
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18. Employment Agreements
 Basic Checklist:
– Duties (maintain flexibility)
– Remuneration and benefits (maintain
flexibility)
– Restrictive Covenants
– Vacation
– Termination
– Probation
– No conflicting obligations

19. Employment Agreements
 Basic Checklist (cont’d):
– Hours of work
– Vacation / holidays
– Acceptance of policies
– Conflict of interest
– Expenses
– Social Media

20. Termination Clauses
 Enforceable if done properly
 Avoid uncertainty of “reasonable
notice” & reduce dismissal costs
 Use clear language
 Don’t go below employment
standards
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21. 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

22. Policies to Protect the
Employer

23. Implementing Policies
A. Have a policy
B. Use clear and unambiguous language
C. Keep the policy up to date
D. Publicize the policy
E. Make employees aware of concerns
F. Ensure supervisors and managers are aware
of the policy and how to monitor
G. Monitor behaviour
H. Discipline violators

24. Policies - Best Practices
 Avoid zero tolerance
 Avoid condonation
 Teach / train / remind
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Stuart E. Rudner
srudner@rudnermacdonald.com
York Region: 905-530-2484
Toronto: 416-640-6402
www.rudnermacdonald.com
@CanadianHRLaw
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