Do it with attitude

By Jamie Campbell
Illustration: Mike Constable

When interviewing potential employees, having the right attitude is as important as knowing the rules

Hiring the right person is better than having to fire the wrong hire. Focusing on the front end makes sense, because going into the process with the right attitude is the best legal protection an employer can get. As with other areas of law, there is some comfort in following the right process, which should not be confused with going through the motions. If the process is framed by a basic understanding of human rights law and a respect for privacy considerations, and implemented in an honest attempt to reach a fair decision, an employer should be on safe ground.

Human rights obligations can be like quicksand: the more you struggle against them the more difficult they can become. Accepting the principles underlying those obligations makes for a process less likely to go wrong.

Applicants must be respected and considered on their individual merits, not on preconceived group characteristics, and measured against the requirements of the job, not arbitrarily set qualifications. Knowing and accepting that is an important step toward creating a hiring process that gets good results and that can withstand legal challenges. The right attitude is as important as knowing the rules.

Do you really need to hire someone?
There is no rule that requires you to replace an employee who has left. In such an event, an assessment may be a prudent move. The cost of downsizing to reflect new technologies or business situations can make it worthwhile too. Maybe a full-time position can be replaced with a part-time or casual position. Can a contractor perform the work? Make that assessment before taking on the obligations that come with the decision to hire.

Bear in mind, however, that calling a person a contractor does not make him or her a contractor if indeed he or she is being treated like an employee. Similarly, calling an employee a term employee doesn’t make him or her one. If an employee is hired on a series of term contracts his or her employment will, under most labour standards legislation, be deemed to be permanent.

First, decide if you need a new employee, then consider the terms. Make sure you are not having another form of employment relationship imposed by operation of law.

What do you want done?
Before looking for someone, define the tasks you want done. By doing this, you legitimately establish the qualifications a successful applicant must have. The qualifications must relate directly to the job. Test the qualifications by asking whether these are indeed requirements of the job or simply things that you would like to have. Both can be included, but they should be distinguished.

Establishing the job and the qualifications protects you against any claim that you have arbitrarily changed the description to discriminate against a particular candidate or class of candidates. It also protects you against the temptation to change the job description to fit an applicant who appears to be the perfect fit. It is also now easier to apply the principles on which your process should be based.

What do you need in a job application?
Driven by federal privacy legislation and growing public concern about privacy issues, employers can no longer act as information magpies and can collect only the information needed to make a hiring decision. The information should be kept only as long as needed. In some cases, information is not an asset but a liability.

Regardless of whether the federal privacy legislation or provincial privacy laws apply in your workplace, follow basic privacy principles and develop a culture of privacy. Get only the information you need. Keep it as long as you need, making sure the information is accurate.

Review application forms and question why the information is required. An employer should be able to justify each piece of information requested. Do you need this information to make the decision about hiring? For example, you don’t need a social insurance number or family information to decide whom to hire. You will need it once someone is hired in order to comply with statutory requirements and to administer benefit plans. 

How informal can an interview be?
Everyone knows you can’t ask questions that discriminate. There is no reason to get around those prohibitions. A person’s marital status is not an employer’s business at this stage. Whether he or she plans to have children also isn’t relevant. Unstructured conversational interviews can cause unforeseen problems. For example, a question such as “I can’t place your accent, where are you from?” is fine in an informal conversation, but in an interview it may taint the process and potentially lead to legal difficulties. Unstructured interviews can also result in hidden discrimination by which fit is assessed based on a discussion about things that may have nothing to do with the job. Check if your questions are intended to elicit information about whether the person can do the job. A more structured interview process protects an employer against lapsing into unintentionally discriminatory areas of inquiry.

Can you call references?
Calling an applicant’s current employer without his or her consent presents problems. Some employers insist on a written release authorizing all references to speak about more than name, rank and serial number. However, only information relevant to the job as described should be sought.

Criminal and credit checks
Credit checks also require an applicant’s consent. Is the person’s credit record relevant to the job? Can the issue be resolved by asking if the person can be bonded? Is that a requirement of the job? Criminal record checks can only be done with consent. Some provinces have protections against discrimination based on criminal records.

Tests
Medical tests should be requested only if they are relevant to the job and only after a conditional offer of employment has been made. Assess if information obtained through such a test is a requirement of the job. Aptitude-type tests should be carefully assessed to determine if they provide information related to the job and if they could have a discriminatory effect.

Applicants with disabilities
Individuals should be assessed on abilities. The human rights duty to accommodate individuals with disabilities applies to job applicants. In the case of a disabled applicant, the employer has the obligation to consider if accommodations can be made for the person to do the job.

Hiring
Employment contracts need not be complicated. A letter confirming the terms of employment, acknowledged by the employee, is enough. It may be prudent to consider a probationary period. That allows an employer to terminate the employee without having to establish cause or provide notice or pay in lieu of notice. The contract allows the parties to establish the terms upon which the relationship can be terminated.

When agreeing on notice periods, it may be tempting to keep the notice periods as short as possible. But a contract that provides a senior employee less notice than that to which he or she would be entitled under common law is at risk of being held to be unenforceable. Contracts that properly reflect the employee’s rights but provide for a level of certainty that the common laws lack are a much better choice.

What about applicants who lie?
Potential employees have no obligation to disclose negative information to prospective employers; but obviously, misleading an employer about a significant fact on your résumé can justify termination. That can be through a direct falsehood or a true but misleading statement. For example, claiming to have been a managing director for North America suggests a significant level of responsibility. By failing to say only three people reported to that position, the applicant is misleading the employer. Applicants have an obligation to report changed circumstances that make a representation false. For example, if a person has a qualification at the time of the interview but loses it, he or she must disclose that information. Employees in positions owing a fiduciary responsibility also have significant obligations and this extends to applicants for those positions. Those applicants are required to disclose anything they reasonably should have known would influence the employer’s decision. Positions having a fiduciary duty are usually those with professional responsibilities or at senior levels of management.

Back to principles
Compliance with the legal requirements regarding hiring can be a very daunting task. It can be overwhelming if you are looking for ways to get around the basic principles. At each stage ask if you are acting to further the process of fairly assessing individuals based on a real description of the job or to get around that process because you have the answer before the process has been completed. Ask why you need particular information. An acceptance of the principles is a much more valuable tool than a checklist.