In this case, a 64-year old occasional teacher had interviewed for several permanent contract positions with a school board. She was selected for a short list from a special list of occasional teachers compiled by the school board. Typically, the principal had the discretion to choose which candidate from the short list would be hired.

In every case, she was not hired; younger, less experienced teachers got the jobs instead.

At the Ontario Human Rights Tribunal, she argued that that the average age of teachers hired for permanent contract teaching positions was 31 years; thus, there was a bias toward hiring younger teachers. She argued that age was a factor in each of the five decisions not to hire her for permanent teaching positions. Simply put, she was a victim of age discrimination in employment.

Moreover, she claimed that in one case, a less experienced teacher who had to be restrained from assaulting a student got a job over her. Furthermore, at that school, the principal gave her a less than flattering reference letter.

The tribunal carefully examined each of the jobs for which the teacher applied. After hearing the evidence of those involved, things became much clearer; this teacher was no victim of age discrimination.

For instance, the tribunal heard testimony from the principal of the school where the teacher accused her co-worker of getting a job even though he assaulted a student, and the principal gave an unfounded negative reference that prevented her from getting another job. In truth, the co-worker had not been guilty of assault; rather, he knocked over a chair in frustration and swore at a student (and was disciplined).

Furthermore, the reference letter that the principal wrote was negative because the principal believed that the teacher had a teacher-centered style, was disorganized, did not engage with staff or students outside of the classroom, was not passionate about teaching and conducted boring classes. Essentially, based on his own observations and unsolicited comments by students, he genuinely believed that the teacher was mediocre. The principal was able to provide reasons for each of these beliefs.

The evidence showed that, in each case, there were clear reasons for not hiring the teacher for a permanent position.

Another principal felt that the teacher gave an average interview, did not have a dynamic presence, spoke in monotone and did not express excitement for the position. There was just nothing outstanding in the interview that suggested she was a strong candidate. What’s more, the reference letter mentioned above raised concerns and was unimpressive; two further references were vague but somewhat more positive.

On the other hand, the successful candidate had a better interview by far, and had “outstanding” references. In fact, one reference called the successful candidate, “the best teacher I have ever had,” and said if it were possible, he would have hired her.

It was the teacher’s teaching abilities, and not age, that were preventing her from securing a permanent position with the school board.

The tribunal was completely satisfied with the school board’s explanations and witness testimony. The tribunal also noted that it was relevant that the teachers on the list were not able to apply for permanent contract teaching positions, but were selected. The fact that the teacher was selected for interviews meant that the principals knew her age but still selected her. It was after the interview performance that the teacher was not hired. The teacher in this case was not disadvantaged by this process because of her age.

Consequently, the teacher’s claim was dismissed.

Thus, it is important to remember that if there are valid and justifiable reasons for not hiring someone that are tied to the job requirements, and this can be explained coherently (with evidence), it is not likely that the employer will be on the hook for discrimination.

Christina Catenacci
First Reference Human Resources and Compliance Editor

© 2012 First Reference Inc. All Rights Reserved. | Permalink | Make a comment |

How does an organization identify the best person for the job when filling a position? Companies generally follow a defined process for recruiting, hiring and promoting. They have a job description and certain criterion they are looking for. Whatever the process may be, it needs to be robust and legally defensible. The best method for achieving this is to use a formal assessment centre (AC). An assessment centre is “a process employing multiple techniques and multiple assessors to produce judgments regarding the extent to which a candidate displays selected competencies” (International Congress on Assessment Centre Methods).

Why should organizations use an assessment centre when hiring? The greatest advantages include:

• Fairness
• Legal defensibility
• Objectivity
• Ability to predict success in a particular role

There are a few disadvantages to using AC, time and cost being the two greatest. However, the time and cost of implementing an AC process is a small price to pay in return for minimizing legal liability and maximizing workforce competence. Having an effective hiring process can reduce turnaround and improve productivity.

The concept of assessment centres has been in existence for a long time and the first generally accepted industrial application was by AT&T in the 1950s. Since then industrial and organizational psychologists have put a great deal of time and effort into refining and advancing the AC processes.

If an employee fails to achieve the roles or tasks required of them, causes an incident (internal or external) or damages productivity, workplace morale or reputation, questions will be asked about how this individual was selected and hired. When this occurs, it is critical to be able to reach into the locked cabinet and bring out the selection file which demonstrates that a formal and well-researched process was used to hire said personnel.

In order to define a selection process as assessment centre it should meet the following criteria:

• The behaviours (dimensions) required for the job were identified using a formal job analysis
• More than one assessment technique has been used, including a simulation exercise (i.e., an exercise which is similar to a situation that may occur on the job)
• All assessment techniques are designed to provide information on the dimensions previously identified in the job analysis
• More than one trained assessor is used per candidate
• Assessors are trained to classify behavioural observations into meaningful and relevant categories (dimensions, competencies, KSAOs)
• All assessment tools adhere to a common set of standards, meaning each candidate is judged using the same criteria
• All dimensions are assessed at least twice, ideally using different techniques
• A systematic method of recording behavioural observations is used
• The data from all trained assessors and from all assessment techniques is pooled to create a final assessment

A panel interview can be part of an assessment centre, but on its’ own it is not. Similarly, creating “word pictures” of behaviours to be assessed by an individual manager does meet the formal definition of an assessment centre.

Organizations looking at recruiting, restructuring or promoting should protect themselves by using the formal AC process.

John Proctor
Integrated Human Risk Solutions

© 2011 First Reference Inc. All Rights Reserved. | Permalink | Make a comment |

Generally speaking, to meet their obligations under the law, employers will have to develop an organizational accessible employment policy statement. Employers will also be required to develop, adopt, document and maintain policies that support the implementation of the commitments in the policy statement.

Specifically, organizations with employees (not volunteers or other non-paid individuals) will have to comply starting January 1, 2012, by providing their employees with disabilities with emergency response information that is tailored to the employee’s needs, if the disability requires it.

Requirements that affect the following areas will be phased in between 2012 and 2017 as follows:

• The Government of Ontario and the Legislative Assembly, January 1, 2013
• Large designated public sector organizations, January 1, 2014
• Small designated public sector organizations, January 1, 2015
• Large organizations (50 or more employees), January 1, 2016
• Small organizations (at least one but fewer than 50 employees), January 1, 2017

Recruitment

Employers must:

• Notify their employees and the public about the availability of accommodation for applicants with disabilities in its recruitment processes
• Notify job applicants, when they are individually selected to participate in an assessment or selection process, that accommodations are available upon request in relation to the materials or processes to be used
• If an applicant requests an accommodation, consult with the applicant and provide or arrange for the provision of a suitable accommodation in a manner that takes into account the applicant’s accessibility needs due to disability
• When making an offer of employment, notify the successful applicant of their policies for accommodating employees with disabilities

During employment

Employers must:

• As soon as practicable after they begin employment, inform their employees of their policies used to support their employees with disabilities, including, but not limited to, policies on the provision of job accommodations that take into account an employee’s accessibility needs due to disability
• Update their employees whenever there is a change to existing policies on the provision of job accommodations that take into account an employee’s accessibility needs due to disability
• Where an employee with a disability so requests it, consult with the employee to provide or arrange for accessible formats and communication supports for information that is needed in order to perform the employee’s job, and information that is generally available to employees in the workplace
• Provide workplace emergency response information to the person designated to provide assistance to employees (if the employees require assistance and if the employees consent)
• Review the individualized workplace emergency response information when an employee moves to a different location in the organization, when reviewing an employee’s overall accommodation needs or plans, and whenever employers review their general emergency response policies
• Make individual accommodation plans that, if requested, include any information regarding accessible formats and communications supports available; include individualized workplace emergency response information; and identify any other accommodation that is to be provided
• Prepare and have in place a written process for the development of documented individual accommodation plans for employees with disabilities (unless the employer is a small organization)

This written process includes:

• The manner in which an employee requesting accommodation can participate in the development of the individual accommodation plan
• The means by which the employee is assessed on an individual basis
• The manner in which the employer can request an evaluation by an outside medical or other expert, at the employer’s expense, to assist the employer in determining if accommodation can be achieved and, if so, how accommodation can be achieved
• The manner in which the employee can request the participation of a representative from their bargaining agent, where the employee is represented by a bargaining agent, or other representative from the workplace, where the employee is not represented by a bargaining agent, in the development of the accommodation plan
• The steps taken to protect the privacy of the employee’s personal information
• The frequency with which the individual accommodation plan will be reviewed and updated and the manner in which it will be done
• If an individual accommodation plan is denied, the manner in which the reasons for the denial will be provided to the employee
• The means of providing the individual accommodation plan in a format that takes into account the employee’s accessibility needs due to disability

Return to work

(This requirement does not replace or override any other return-to-work process created by or under any other statute.)

Employers (other than employers of a small organization) must do the following:

• Develop and have in place a return-to-work process for employees who have been absent from work due to a disability and require disability-related accommodations in order to return to work
• Ensure the return-to-work process outlines the steps the employer will take to facilitate the return to work of employees who were absent because their disability required it, and uses documented individual accommodation plans as part of the process
• Document the return-to-work process, and use documented individual accommodation plans

Performance management

“Performance management” means activities related to assessing and improving employee performance, productivity and effectiveness, with the goal of facilitating employee success.

Employers that use performance management must take into account the accessibility needs of employees with disabilities, as well as individual accommodation plans.

Career development and advancement

“Career development and advancement” includes providing additional responsibilities within an employee’s current position and the movement of an employee from one job to another in an organization that may be higher in pay, provide greater responsibility or be at a higher level in the organization or any combination of them and, for both additional responsibilities and employee movement, is usually based on merit or seniority, or a combination of them.

Employers that provide career development and advancement to their employees must take into account the accessibility needs of their employees with disabilities as well as any individual accommodation plans.

Redeployment

“Redeployment” means the reassignment of employees to other departments or jobs within the organization as an alternative to layoff, when a particular job or department has been eliminated by the organization.

Employers that use redeployment must take into account the accessibility needs of their employees with disabilities, as well as individual accommodation plans.

What do you think?

Do you believe that these requirements will be too onerous for employers? Do you think that most employers do these things already? Are the requirements really a step in the right direction?

Christina Catenacci
First Reference Human Resources and Compliance Editor

© 2011 First Reference Inc. All Rights Reserved. | Permalink | 4 comments |

The old-fashioned practice of an applicant sending a résumé and waiting to be called for an interview while the employer sorts through several similar-looking résumés could be replaced with the process of applicants answering posted questions on the company website with video answers; is this a good thing?

Well, there seem to be a lot of advantages: the process could help screen out the candidates who are not as serious about the position, as there is some work involved, like preparing a draft answer and going through the trouble of recording the answers and posting them.

Also, potential employers could learn a bit about candidates who are out-of-province before deciding if they want to pay to fly them to the company headquarters for a formal interview. This can also expand the pool of applicants as they are more easily accessible.

Further, potential employers can learn things about the applicants that cannot be conveyed in an old-school résumé. For instance, instead of reading “bilingual”, the employer could view an applicant’s video answer in the second language to show that the applicant truly is bilingual (or at least, learn the extent to which the person can actually speak the required languages).

Along the same lines, potential employers may be able to do away with the résumé that says one thing, and the interview that demonstrates something completely different. Many job applicants are tempted to bend the truth by embellishing or omitting information on their résumés. It may not be so easy to do this when recording a personal answer and crafting a video response for the potential employer.

Moreover, the applicant’s presentation, conversational style and personality can actually help a potential employer decide if the person would be a good fit in the company. This way, time can be saved because a job applicant may look good on paper, but just may not be “the one” for a particular workplace.

What’s more, the hiring staff at the office can browse the video answers, and sort them into a particular order at their own convenience.

It seems like a really good idea. But what are the cons?

I imagine it could be overwhelming and time consuming for a job applicant to answer a series of questions and feel comfortable recording and uploading them to a website every time the person applies for a job. Also, there could be privacy concerns: how secure are the video answers? Can competitors hack into them and sabotage them? Can wrongdoers take the information and use it against the applicant? Since it is not common yet, applicants may prefer to apply elsewhere.

Also, it is possible that job applicants could raise issues of discrimination. Some video applicants may feel that the potential employer did not want to interview the job applicant in person because of racial discrimination. Alternatively, an applicant may assume ageism was at play; once the employer saw that the applicant was older, the application did not go forward. Although a résumé can hide these features, a video response cannot do so. This concern may be so significant that employers choose to avoid litigation by doing away with the idea of video responses.

Notwithstanding this point, if an employer is going to discriminate against a job applicant, the employer will find a way to do it, likely at the stage of the formal interview or even beforehand when reading the name or job experience on a résumé.

The potential employer can address this issue by ensuring that each candidate gets the exact same questions and the exact same amount of time to answer them (maximum recording time).

Though video responses may never replace the formal interview, they may become the first stage of the process to create a short list for in-person interviews. It could become the new pre-interview.

How about Skype? A first interview using this software could take place between a potential employer and an applicant once the short list is created through video applications, and could decide whether the applicant should come to the company headquarters for the final formal interview in person.

What do you think? Has your company ever used video answers as a way to screen out applicants for a job? Has your company ever conducted a first full interview on a format such as Skype?

Christina Catenacci
First Reference Human Resources and Compliance Editor

© 2010 First Reference Inc. All Rights Reserved. | Permalink | 2 comments |

The proposed law aims to address privacy concerns about certain online services, such as social networks and Google Street View. Apparently, there has been public outrage in Germany over corporations checking on private employee emails and filming sales clerks during coffee breaks.

At this point, the regulations have not yet been passed, and some are finding it difficult to imagine them being in force. It would also be challenging to prove a violation and enforce the law to win damages.

For instance, employers would still be able to conduct Internet searches on a job applicant, and could view business-related posts on websites such as LinkedIn, but could not go into Facebook and become a “friend” of the applicant, learning even more private details about the person.

The proposed law would also prohibit video surveillance in private areas such as washrooms, under threat of a 300,000 Euro fine. On the other hand, this type of surveillance would still be allowed in public areas.

Some view the proposed bill as a healthy balance between employee rights to privacy and employer rights to know valuable information about employees.

What do you think?

Do you think this type of law could ever be passed in Canada?

Christina Catenacci
First Reference Human Resources and Compliance Editor

© 2010 First Reference Inc. All Rights Reserved. | Permalink | Make a comment |

Image taken from: http://www.theglobeandmail.com

I recently read an article I found quite interesting: as the competition for jobs increases during these tough economic times, many job applicants are tempted to bend the truth by embellishing or omitting information on their résumés.

It happens even more than I imagined. Apparently, recruitment firms and pre-screening companies estimate that one in three résumés raises a red flag (due to false statements, exaggerated claims or important omissions), and it has only become worse since the economy weakened in 2008.

This scenario leads to applicants getting hired and being unable to perform their jobs because they are not truly qualified for the job in the first place. What’s worse, the company could be harmed as a result of the employee’s actions during his or her time with the company.

The only way to deal with this problem is to select the proper applicant from the outset: it is critical to thoroughly check out applicants prior to hiring. The main areas that are vulnerable to “white lies” are:

• Education
• Experience
• Responsibilities
• Work dates
• Salaries

In terms of education, it is common for job applicants to be a course or two shy of a degree yet list the degree as completed to avoid having to explain the situation. Also, extra courses and professional affiliations may be inaccurate. Some might even list a fake university.

Concerning experience and responsibilities, some applicants exaggerate what they did at their last job. For instance, they might stretch the truth about how many employees they managed, or claim to have been a full manager when they were only an assistant manager.

Work dates are important to examine, as many applicants leave out portions of their work experience because they don’t know how to explain a termination, resignation or unsuccessful job search. Further, some may leave out the early portion of their careers because they don’t want to show their age.

Lastly, it is important to get an accurate idea of the applicant’s previous salary, as some may inflate the numbers so they can get a higher one from their next employer.

If we accept that at least 30 percent of résumés contain some type of inaccuracy, it is important to conduct a diligent search of the job applicant. Try the following strategies:

• Make sure that the interview process involves rigorous questioning to verify information on the résumé.
• Pay attention to the applicant’s body language. If it is negative, defensive or evasive, determine why.
• Don’t be afraid to use technology to check on a job applicant; for example, the Internet, including social networking and social media sites. However, be careful how you use the information you collected.
• Look for gaps in the applicant’s résumé. Explore whether there have been problems with past jobs or during the time between jobs.
• Check references and credentials to ensure that the résumé is truthful. Don’t be afraid to hire a fact-checker if you lack the time to do so.

Remember, once you identify a “white lie”, give the job applicant a chance to provide a more honest account of the situation before hastily rejecting him or her.

Christina Catenacci
First Reference Human Resources and Compliance Editor

© 2010 First Reference Inc. All Rights Reserved. | Permalink | Make a comment |

Image taken from: http://www.worldofworklawblog.com

Upon first thought, employers may not be sure what to do when a prospective employer calls asking for a reference on a former employee.

Is it safe to provide a reference when a prospective employer is conducting a background check on your former employee?

Is it worth providing a negative reference given the privacy, defamation or discrimination issues that could arise? What if the former employer provides a “false positive” reference, and the prospective employer hires the person and later feels that it was harmed by the former employer’s failure to provide a truthful reference? Is it dangerous to not be completely truthful about a former violent or drug-addicted employee? Is it unfair to provide neutral information when a high-performing former employee might deserve a glowing reference?

With all these questions, it’s easy to see why employers might hesitate to provide a complete performance-based reference for a former employee, and may instead stick to providing neutral references discussing the former employee’s name, positions held and dates of employment.

Similarly, it’s not difficult to see why prospective employers might wonder about what to ask and what not to ask a former employer about a job candidate during a background check, and the issues that could arise from asking for certain kinds of information about the person.

I recently read a case where a prospective employee interviewed with an employer, and was offered a job conditional on his providing adequate references. The employer called the candidate’s former employer for a reference check and learned that the prospective employee had failed some drug tests and was terminated for this reason. Shortly thereafter, the employer called the candidate back to rescind the job offer because of the failed drug tests.

The prospective employee brought an application to the Privacy Commissioner of Canada, arguing that he expected his former employer to provide information about his employment history and performance during the background check, but not the information about the drug tests. He felt that his former employer should not have provided this information since he had not signed any form that specifically authorized such a disclosure.

In this case, the Privacy Commissioner decided that the former employer could provide the information about the drug tests, and the prospective employer could receive this information, since the information was directly related to the candidate’s work history. Also, it was likely that the candidate had provided express consent to the prospective employer by signing an authorization form that allowed it to investigate his “employment and other related matters as may be necessary in arriving at a final decision” with respect to hiring him. The same authorization released previous employers from all liability in responding to inquiries and releasing information in connection with his application. Unfortunately, since the candidate was not hired, both employers discarded the forms.

The commissioner found neither employer liable in this case, but they took a chance by not keeping anything in writing.

Employers who are interested in providing performance-based references during a background check are recommended to:

• Provide information that is strictly job-related and based on reasonable evidence that is accurate and verifiable
• Respond only to the questions asked, and do not add extraneous information about the person
• Make sure that your answers relate directly to the former employee’s work history and performance (if drug test results or violent behaviour make up part of the individual’s work history and performance, the Privacy Commissioner has found that a former employer can reasonably disclose the information if asked about history and performance)
• Make sure to get a signed statement from departing employees that releases the employer from any liability for responding truthfully to questions asked during the course of giving references; explain that without the signed release, the company will provide neutral references only
• Ensure there is a particular person at the company who provides the references, who is trained and understands the importance of carefully handling reference inquiries
• Provide reference information only to prospective employers after verifying their identities, receiving their request in writing, and receiving the prospective employee’s consent to make the inquiry

On the same note, employers who are interested in requesting performance-based references during a background check are recommended to obtain a candidate’s express consent to ask his or her former employers about the applicant’s previous employment history and performance (put it right on the application form and keep copies of it), and to provide this consent to the former employer if requested.

I’m wondering: does your company have a neutral employment reference background check policy, providing only name, position held and dates of employment of former employees? Have you refused to provide a reference? Does your company use releases for parting employees limiting liability for future references provided?

Christina Catenacci
First Reference Human Resources and Compliance Assistant Editor

© 2010 First Reference Inc. All Rights Reserved. | Permalink | Make a comment |

Image taken from: http://longevity.stanford.edu

The impact of the aging workforce is being felt globally in the economy and is directly affecting businesses. Unprecedented issues have arisen, such as labour shortages, greater health care needs for the elderly, and decreased private and public investments with fewer people contributing as the baby boom generation retires. In addition, the issues of older workers and eldercare have come to the forefront as demographic trends continue to show declining fertility rates and a steady increase in life expectancy. Statistics and analysis on the aging workforce can be found on the
Service Canada website.

Moreover, the impact on the workforce is greater than expected. Employers as well as employees have several HR challenges to deal with, including: early retirement, working beyond age 65 for various reasons, age discrimination, labour and skills shortages, cross-training (knowledge retention/transfer), health and safety, health care costs. And older worker may feel an increased need for work-life balance measures. Several of these issues also have legal implications, and that is what we will explore in this series.

Let’s start with a brief discussion on age discrimination.

Human Rights legislation across Canada covers discrimination based on age. The law forbids age discrimination in employment with very few exceptions, one of which is the bona fide occupational requirement. In the law, age is generally defined as being 18 years or older (19 years or older in some jurisdictions). This means that employers cannot treat employees differently without justification because of their age. In general, age discrimination in the workplace occurs when an employment decision is made on the basis of an employee’s or applicant’s age. Most of these decisions are made in the context of the employer’s recruiting and hiring, performance management, disciplinary and termination practices.

It is important to remember that the concept of who is an “older” person is relative. As indicated in several human rights commission guidelines: discrimination on the basis of age can be experienced by persons beginning as early as 40 to 45, particularly in employment. The term “older” is not meant to denote “old age” or to stigmatize persons in any way. Rather it is simply used as a relative concept meaning older than those who are less likely to face the particular types of discrimination being discussed.

The gist of it all is that age should not be used to deny hiring, training or promotion opportunities, to dismiss, or to force employees to retire because they’ve reached a certain age, unless there is a justifiable (bona fide) reason under the circumstances.

Human rights legislation recognizes that there may be legitimate reasons for employment discrimination on prohibited grounds such as age. The legislation allows an employer to justify a standard, factor, requirement or rule that has an adverse effect because of age by showing that it is a bona fide requirement. The legislation also allows direct discrimination in employment for reasons of age if the age of the applicant is a bona fide requirement because of the nature of the employment.

So what does this mean practically for employers?

To illustrate, during the economic downturn, many companies (of varying sizes) downsized/restructured and had to terminate a number of employees. With the best of intentions, many of our subscribers wondered if they could consider senior employees or employees 65 or over to dismiss or temporarily lay off. If you follow the rules of the law, the logical answer would be no. Why? Because you would be exposing your organization to possible discrimination claims as a result of the selection process.

In these situations, the older workers were inadvertently becoming a logical target for downsizing because of the higher salaries normally earned by workers who have been employed for longer period of time, and who might be above the age of 40. Given that the rationale behind downsizing is to lower payroll costs, an employer must exercise careful and considered judgment in selecting employees for termination, where the majority of higher-paid employees are over the age of 40.

It is crucial for employers to understand that any dismissal decision they make based wholly or partly on an employee’s age could be considered a violation of human rights law and would be scrutinized (unless there is an existing bona fide justification or requirement). In addition, if comments about age, or age discriminatory actions, were part of the reason for downsizing, it could constitute a valid basis for an age discrimination claim.

Under the circumstances, the employee would only need to prove that age was a determining factor in the employer’s decision to terminate. To defend such a claim, the employer would have to show that it made the decision based on reasonable factors other than the age of the employee, or that there existed a known bona fide justification or requirement.

Doorey’s Workplace Law Blog provides an interesting review of lessons learned in age discrimination suits. He relates a recent UK case where a British employment law tribunal ruled that the Canadian Imperial Bank of Commerce dismissed a 42-year-old executive in its London office in order to replace him with a “younger” and less-experienced (read: “cheaper”) employee.

Damages in this case will be determined at a later date, but CIBC faces a potentially large payout for breaching UK age discrimination laws.

When downsizing, have you discussed the employee’s age as a factor of selection? And, if yes, how did you decide this was not the route to take?

Next topic to be discussed in this aging workforce series will be mandatory retirement and related issues.

Yosie Saint-Cyr
First Reference Human Resources and Compliance Managing Editor

© 2010 First Reference Inc. All Rights Reserved. | Permalink | Make a comment |