Starting off the employment relationship on the right foot, with all parties knowing their obligations, is the foundation for a long and successful relationship. We recommend employers take the following steps to limit liability and clearly communicate obligations to employees.

Ensure your interview process complies with human rights legislation and the Accessibility for Ontarians with Disabilities Act (“AODA”)

Interview and hiring processes engage Ontario’s Human Rights Code (“Code”). Accordingly, it is crucial that you ensure these processes comply with the Code. Best practices include:

1. Offer and provide accommodation for the interview: Employers must accommodate applicants’ needs related to Code grounds for any part of the interview or hiring process to the point of undue hardship;
2. Ensure your interview questions comply with the Code: If inappropriate questions connected with Code protected grounds are asked, it could be inferred that the hiring decision will be premised on those questions. For example, if you ask many questions about an applicant’s family, and they mention they have onerous family obligations, they may conclude their family situation influenced your decision if they are not hired and make a claim against you;
3. Discrimination in the hiring process: Ensure you are assessing applicants on their merits, and do not make hiring decisions based on discriminatory reasoning, such as: (1) rejecting an applicant because they do not fit with the company image. This could be perceived as discrimination based on race, (2) refusing to hire someone because they are “overqualified.” This could be perceived as discrimination based on age, and (3) eliminating an applicant due to a gap in their resume. This could be viewed as discrimination on the basis of disability if the applicant were out of workforce due to medical reasons.

In summary, your hiring process should focus on transparency and evaluating applicants based on their credentials.

AODA Compliance

Further, you should ensure your hiring process is accessible to comply with the AODA. Employers can include the following in an accessible hiring process:

1. Accessible Job Postings: Ensure that your website complies with WCAG 2.0 web accessibility standards for layout and content;
2. Notice of Accommodation and Contact Information: Ensure your job posting states your business welcomes applications from people with disabilities and explain who the candidate should contact for accommodations; and
3. Accessible interviews: Be prepared to offer the following accommodations, if requested:

• An American Sign Language (ASL) interpreter;
• An interview scheduled at a time the candidate is most focused; and
• A location accessible for someone using a mobility device.

Vaccination as a condition of employment

Many employers are now inundated by wrongful dismissal claims from employees who were terminated due to non-compliance with mandatory COVID-19 vaccination policies.

Moving forward, employers can mitigate this risk by making vaccination a condition of employment in the offer letter. Essentially, potential candidates must be vaccinated against COVID-19 as a condition of the offer of employment, absent any medical or religious grounds protected by the Code.

You should have written employment agreements

While there is no requirement to have an employment contract in writing, employers should use written employment agreements because:

1. Enforceable termination provisions permit an employer to limit an employee’s entitlements on termination to the minimum required by the Employment Standards Act, 2000(“ESA”). Absent an enforceable termination provision, your employees are entitled to common law reasonable notice, which is often significantly more (up to 4 times more) than the ESA minimum entitlements;
2. Temporary layoff provisions permit an employer to place an employee on an unpaid temporary layoff. Absent a temporary layoff provision, employers are vulnerable to constructive dismissal claims; and
3. Employers can limit other entitlements upon termination, such as entitlement to bonuses over the common law reasonable notice period.

There are many other benefits to using written employment contracts, such as clearly setting out hours of work and vacation days.

Consider having new employees sign a confidentiality agreement

A confidentiality agreement or confidentiality provisions in an employment agreement that apply during and after an employee’s employment are an important tool to protect confidential information. For example, confidentiality provisions prohibiting the use of confidential client lists by former employees help to protect legitimate business interests and lawfully curtail competition.

In addition, absent a confidentiality agreement or confidentiality provisions in an employment agreement, employees have a common law duty of good faith and fidelity to their employer. This includes a confidentiality obligation not to use any confidential information they learned during the course of employment.