Module 3 - Foundation of Recruitment and Selection II - Legal Issues PDF

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Foundation of Recruitment and Selection II: Legal Issues. Canada has an ethically workforce that continues to diversify in terms of race, gender, sexual identification, and disabilities. HR professionals must be aware of all legislation, including labour codes and employment legislation as they apply in unionized, non-unionized, public sector, and private sector organizations. The employment related laws play a crucial part in recruitment and selection practices. Canadian laws required that hiring practices are discriminatory. However, these laws are frequently amended, meaning that HR practitioners must be currently with legal changes to maintain compliance. The Canadian workplace has always been ethnically heterogeneous and it's becoming increasingly diverse. Given that recruitment and selection are crucially important, HR activities for achieving diversity, human rights and employment equity are here to stay. The impact of these laws and policies mandate recruitment and selection practices that do not discriminate based on specific characteristics. There are four primary laws that impact HR practitioners in Canada: 1. 2. 3. 4.

Constitutional Law Human Rights Legislation Employment Equity Legislation and Employment Equity Polices. Labour Laws, Employment Standards and Related Legislation.

Two key employment law category that HR practitioners must be familiarized with before and during recruitment are Human Rights (all acts prohibit employers to from discriminating against individuals based on prohibit grounds with includes race or color, religion or creed, age, sex, sexual orientation, gender identity and expression, marital status and physical handicap, mental handicap or disability) and Employment Equity (require HR policies to eliminate barriers that prevent designated minority groups from being hired.). We want to ensure that HR Professionals can educate managers regarding the legal requirements of recruitment and selection systems.

A Basic Background in Legal Requirements for Nondiscriminatory Recruitment and Selection: The key legislations and legal requirements that affect recruitment and selection practitioners in Canada. Constitutional Law: It's the supreme law of Canada, it affects all parts of the employment practices in all the Canadian society. Consists of a series of laws and acts. All laws in Canada that comes into force in a dispute between a private person and a branch of government (whether legislative, executive, or administrative) falls under de Constitution. A section that is often cited in employment law is section 15 of the Canadian Charter of Rights and Freedoms, which lats out the principle of equality rights:

"15. (1) Every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without any discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (2) Subsection (1) does not preclude any law, program or activity that has as it object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability." Human Rights Legislation: It prohibits discrimination in both employment and the provision of goods and services. It's generally establishes human rights commissions or tribunal deal with complaints, including those involving employment discrimination. Each province and territory have established a human rights act or code that prohibits discrimination in employment and in the provision of good and services. The federal or provincial/territorial acts apply to the organizations that fall under their jurisdictions (normally it means that organizations are governed by the laws of the political division in which they are chartered or incorporated). The Canadian Human Rights act applies to federal government departments, Crown corporation and agencies, and business under federal jurisdiction, including banks, airlines, railways, the CBC and other broadcasters, and the Canada Post. "8. It is a discriminatory practice, directly or indirectly, (a) to refuse to employ or continue to employ an individual, or (b) in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination." "Prohibited grounds of discrimination" are: o Race o National or ethnic origin o Colour o Religion o Age o Sex (including pregnancy and childbirth) o Marital status o Family status o Mental or physical disability (including previous or present drug or alcohol dependence) o Pardoned conviction; and o Sexual orientation. They can vary somewhat along provinces. Human rights legislation in all provinces is enforced through human rights commissions or tribunals that have the legislative power to undertake actions that might be necessary to eliminate discrimination.

The Canadian Human Rights Act empowers the Canadian Human Rights Commission (CHRC) to investigate complaints, develop and deliver public information programs, undertake sponsor research programs, liaise with other human rights commissions, and review federal legislation for conformity with the Canadian Human Rights Act. Employment Equity Legislation and Employment Equity Polices: Are administrative mechanisms set in many Canadian organizations in response to federal employment equity legislation initiatives. It has a major impact on employment systems, including recruitment and selection. They intent to promote the entry and detention of people from designated groups (women, visible minorities, Aboriginal, and people with disability.). It requires that all federally regulated organization employers with 100 or more employees to set up an operate employment equity program. For non-federally organizations with 100 or more employees doing more than $1 million of business with federal government to commit itself to employment equity. It involves any human resource activities introduced into an organization to ensure equality for all employees in all aspects of employment, including recruiting, hiring, compensation, and training. The intent of the Employment Equity is to address past systemic discrimination in employment system that had disadvantaged members of the designated groups. "(a) identifying and eliminating employment practices that acts as barrier to the employment of persons in designated groups; and (b) instituting positive policies and practices and making reasonable accommodation to increase representation from designated groups among various positions in the organization to reflect the designated group's' representation in either the work force or in those segments of the work force (identified by qualification, eligibility or geography) from which the employer reasonably expects to hire or promote employees." The employment equity programs often require an employer to undertake an extensive examination of the organization's recruitment and selection system. 

Developing and creating an employment equity plan: o Obtain support of a senior manager for the EE effort. o Conduct a survey to determine the present representation of designated groups In the organization's internal work force o Set future representation targets for designated groups based on availability of qualified workers in the labour market. o Remove systemic employment barriers to increase representation for designated groups in the internal work force o Monitor the changing composition of the internal work force over time o Manage necessary changes to the EE intervention to bring designated group representation up to future targets.

Labour Laws, Employment Standards and Related Legislations:

Federal and provincial labour laws estipulate the rights of employees to organize trade unions and to bargain collective agreements with employers. Provincial labour relations act and the Canada Labour Code establish labour relations boards to oversee union certifications and handle complaints about unfair labour practices. It grants certain employment rights to both employers and employees, but also impose a big range of employment responsibilities and obligations. It regulates the collection, use and disclosure of personal information by employers and some of the legislation can have a direct impact in recruitment and selection practices, including background checks in applicants. It regulates minimum age of employment, standard hours of work, minimum wages, statutory holidays, vacations, work leaves, sexual harassment and termination of employment. HR Professionals must understand the origins, purpose, and stakeholders of each of the fundamental legal requirements if they are to manager recruitment and selection activities in compliance with the law. Benefits of implementing Employment Equity in the Workplace: o o o o o o

A work force representative of Canadian culture and diversity An increase of global competitiveness and productivity High employee morale and decrease of absenteeism Amicable relationship with customers and clients Enhanced corporate reputation Increase profitability and a better bottom line.

Improving Workplace Communication on Diversity o o o o o o o o

Voluntary self-identification surveys that help to identify the diversity present in the workplace Focus group and committees devoted to employment equity and responsible for conducting workshops, presentations, and sessions with employees Dialogue with managers concerning their positions on employment equity Internal and external newsletters and magazines with sections and/or articles on employment equity Internal bulletin boards where job openings and recently employment equity news are posted Company internal websites including information about employment equity Internal employment equity memos and pamphlets; and Exit interviews.

"Best Practices" Derived by Human Resources and Skills Development Canada (HRSDC) for Employer Reports o o

Maintain "open-door" policy that encourages and fosters a positive environment for employer and employees. Advertise employment opportunities in specific national or regional publications design towards members of a designated group

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Celebrate specific cultural holidays such as Aboriginal Day. Employer allowed flexible holiday policies so that employees could celebrate their own special days. Accommodated employees who need special help, especially those with disabilities, to ease their integration into the workforce and make them comfortable in their work environment. Report the achievements of barrier-free workplaces through accommodation of employees. As work-places become more complex, accommodative solutions become increasingly individualized. Employers recognized that successful accommodations involve positive encouragement from senior managers and the development of supportive workplace cultures. Some practices that employers used to meet the needs of employees included private workspaces, visual and hearing aids, job coaches, and diversity training provided to managers and staff.

Privacy Legislation: There are privacy legislations established that applies under governments' jurisdiction The Canadian Privacy Act controls the collection, use and disclosure of personal information with respect to enterprises that fall under federal jurisdiction. The Personal Information Protection and Eletronic Documents Act (PIPEDA) sets the ground rules on how to collect, use and disclosure personal information in the course of commercial activities across Canada, and also protects the personal information of all employees of the federal government or federally regulated organizations. PIPEDA does not apply to organizations that are not engaged in commercial transactions, nor organizations that operate wholly within a province or territory that has its own legislation. All provinces and territories have privacy legislation, in case of provinces that have not similar legislations to PIPEDA, it still applied. The privacy legislation that applies in any business depends on the jurisdiction in which it falls. Although is important in all aspects of employee relations, is most at issue during background checks, references check, credentials, criminal records, medical records or credit history. The relevant privacy legislation will specify how the information may be collected, the nature of the information that may be collected and how it may be used. Regarding to computer and internet rules, HR should deconvolve clear and less ambiguous and polices. These polices should address the right or the lack of privacy to use the organization technology for personal business, and the expectation of privacy that should be associated with the use of them.

Key Legal Concepts in Recruitment and Selection Legal Terms: o

Discrimination:

In employment refers to any refusal to employ or continue to employ any person, based of that individual's membership in a protected group.

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Direct Discrimination:

It occurs when an employer adopts a practice or rule that discriminates on a prohibited ground. If direct discrimination occurs, then the burden is in the employer to show why the rule is valid in application to all the members of the affected group. I.E. If an employer hiring for a steelwork specify that no women will be hired, then the employer should prove that no women could perform the job successfully. If even one woman. o

Indirect Discrimination or Adverse Effect Discrimination:

When an employer in good faith, adopts a policy or practice for economic or business reasons, but when is applied to all employees it has an unintended negative impact on members of a protected group. In selection, it often involves a test or a practice. o

Protected Groups:

Those who have attributes that are defined as "Prohibited grounds" for discrimination under the human rights. o

Designed Groups:

The EE defines them as women, visible minority, aboriginal, and person with disability. o

Adverse Impact:

Occurs when the selection rate for a protected group is lower than for the relevant comparison of the group. It's based on statistical evidences showing that proportionally fewer of the protected group are selected using selection device (such as an employment test or interview) or that fewer members of a protected group pass through the selection system taken as a whole. o

Bona Fide Occupational Requirement (BFOR) or; Bona Fide Occupational Qualifications (BFOC):

Are the requirements that a person must possess to perform the essential components of a job in a safe, efficient, and reliable manner. In the grounds that the practice may be perceived as discriminatory, the employer must show that the practice or policy was adopted in honest and good faith belief that it was reasonable necessary to ensure the efficient and economical performance of the job without endangering employees or the general public. o

Accommodation:

The duty of an employer to put in place modifications to discriminatory employment practices or procedures to meet the needs of a member of a protected group being affected by the employment practice or procedure. There are some factors that might make the employer under a greater or lesser burden (financial cost for the accommodation, disruption of an existing collective agreement, impact of lower morale on others employees, flexibility of work force and facilities, the size of the employers operation; and the magnitude of risk for workers and the general public when safety is compromised.). Accommodating Physical and Mental Disability – individualized, rather than standardized testing, must be used to accommodate individuals with physical and mental disability.

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Sufficient Risk:

As part of the Bona Fide, an employer may argue that an occupational requirement that discriminates against a protect group is reasonably necessary to ensure that the work will be done successfully and not posing harm or danger to employees or the public. The criteria is that the risk must be well above a minimal or nominal risk. o

Undue Hardship:

The limit which employer or service providers are not expected to accommodate a member of a protected group. Usually occurs when an employer cannot bear the cost of the accommodation. As part of the recruitment and selection, no statement may be made in advertising a job that would prohibit or restrict members of a protected group from seeking that job. During the selection process, applications forms, and interviews are potential sources of direct discrimination. As a protection manner, some guidelines were created. They provide practical and detailed advice on how to avoid direct discrimination in common selection situations. o

Reasonable Alternative:

The employer must show that no reasonable or practical substitute exists for the discriminatory practice.

Some Practical Guidelines in Nondiscriminatory Recruitment and Selection. The guidelines point to the right direction and help to identify typical problem areas in recruitment and selection. Recruitment is a complex HR activity, and this can make it difficult to develop nondiscriminatory recruitment practices for protected group members or designated group members. The practices that must be consider are measured by the success or failure of two main points:  

The effectiveness or ineffectiveness of the organization to contacting and communicating with target group members. The positive or negative perceptions that target group members hold about the organization. (that perception is from in two ways). o At the time the organization make their first contact through its outreach recruiting o Through knowledge gained about the organization and its practices via third parties.

Practices for Nondiscriminatory Recruiting. 

Effective Practices: o In employment offices, post in an easy, complete, objective, and specific information on all available jobs. o Advertise job openings in media that are read, viewed, or listened to by protected groups o Train employment clerical staff and recruitment offices in outreach recruitment.

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Use opportunities to visually present protected groups members in positive employment roles Establish network with community groups from which protected groups members are drawn. Set an advertise objectively determined selection criteria for the job. Base selection criteria on Bona Fide occupational requirements.

Ineffective Practices: o Permit receptionists and recruiters in employment offices to "pre-screen" applicants based on informal criteria. o Rely on word-of-mouth advertisement. o Post job advertisement only in-house o Rely only in seniority when promoting employees without regard for meeting the qualifications needed for the position. o Allow each recruiter to use and communicate with a particular criterion for selecting among job applicants o Categorize and screen job applicants based on stereotype assumptions about protected group membership.

Practices that Promote Positive Recruiting Process: o o o o o o

Include in the job advertising role models from protected group as well as equal opportunity statements. Implement management practices and policies that recognize and deal with special challenges or difficulties faced by protected groups. Communicate and demonstrate the commitment of senior management to outreach recruiting Actively challenge negative myths and stereotypes about protected group. Bring organizational policies and procedures into line with human rights and employment equity legislation. Reward supervisors and managers through the pay and promotion system for success in advancing human rights and employment equity goals.

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