Our Employment and Immigration teams have teamed up to provide you a point-in-time primer on the fundamentals of recruiting and hiring employees in non-unionized sectors.

With ambitious immigration targets set by the Government of Canada, namely the desire to bring in over 500,000 Temporary Foreign Workers (“TFWs”) and their families per year for the next three years, the layoffs happing across the technology industry in the U.S. giving opportunities to Canadian companies to capture highly skilled talent, and the annual influx of new graduates joining the workforce, now is the perfect time for employers to get up to date with recent developments in immigration and employment law.

In this rapidly changing landscape, here are some key recruitment and hiring considerations employers should keep in mind, involving discrimination, immigration rules, the consequences of making misrepresentations, and what type of employment agreement is right for the role.

Discrimination & Hiring

Ontario’s anti-discrimination legislation doesn’t just apply in the context of how employers treat their workers, but also in the context of advertising job postings, interviewing and hiring.

Under Ontario’s Human Rights Code (the “Code”), and other similar legislation across Canada, employers cannot discriminate with respect to employment on the basis of any protected ground including race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability (known as “prohibited grounds”).

Discrimination can occur explicitly, or discrimination can be deemed to have occurred where the employer has established a requirement, qualification or factor that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground. Employers can rebut a claim of discrimination if they can establish an exception under the Code, or a reasonable and bona fide occupational requirement.

First, exceptions under the Code relate to special circumstances where an organization may be eligible to hire persons based on specific prohibited grounds, as long as the requirement is reasonable and bona fide based on the nature of the job. For example, a social service organization assisting the deaf and hard of hearing may be allowed to specifically seek and hire workers who are deaf or hard of hearing.

Second, a reasonable and bona fide requirement may also allow employers to exclude applicants who cannot meet that requirement if the applicant cannot be accommodated up to the point of undue hardship. Undue hardship can only be established in reference to the cost, outside sources of funding, if any, and health and safety requirements, if any. For example, a small employer may not be able to afford to renovate an establishment to make it wheelchair accessible, and thereby be unable to hire applicants who require wheelchair access.

Job postings

Employers should ensure that job postings are based on valid requirements and avoid reference to prohibited grounds of discrimination, except where those grounds are bona fide requirements. In some cases, even where the job postings do not mention any prohibited grounds under the Code, the posting may still be considered discriminatory where they prevent or discourage people identified with a protected ground from applying for a job.

Best practice is to use neutral, non-discriminatory language (e.g. sales clerk instead of salesman), and assess and then clearly state the essential duties of the job. Employers may also want to consider offering accommodations in the posting itself to encourage diverse applicants to apply.

Employers should be particularly vigilant in maintaining neutrality in the context of job postings under the Temporary Foreign Worker Program (“TFWP”), where they are required to include the title, job duties, language of work, wages, benefits, location of work, and skills requirements amongst other required information. That said, it is not discriminatory for employers to include the requirement that a candidate must be lawfully eligible to work in Canada in a job posting.

Interviewing and hiring

Similar concerns arise during interviewing and hiring. It is best practice to apply a uniform, consistent, and objective decision making process when recruiting and hiring. Except as discussed above, employers must not base hiring decisions on prohibited grounds of discrimination. Even where there was no intention to discriminate, discrimination can be inferred from the conduct of the employer.

Employers should therefore ensure they do not ask inappropriate questions or make inappropriate comments relating to prohibited grounds, as such questions or comments may be used as evidence that discriminatory factors were considered in the hiring process. As best practice, employers should instead focus on questions that get information about the applicant’s qualifications or ability to perform job requirements. Employers are also permitted to ask if an employee is authorized to work in Canada, and make an offer conditional upon the provision of proof of lawful work authorization.

Employers should create and retain written records of the job postings, interviews, hiring process, and maintain such records for applicants who were rejected as well as those who were hired. Such records should be kept for a reasonable time to rebut any potential claims of discrimination that may arise. When a temporary foreign worker is involved, documentation must be maintained for six (6) years following the date the foreign worker is hired.

Accommodation

Employers should also be aware of their duty to accommodate applicants’ needs related to prohibited grounds for any part of the interview or hiring process, unless it would provide undue hardship on the employer. Although applicants are responsible for advising of any need for accommodation, the duty to accommodate also requires employers to be alert to potential accommodation needs without being advised in some cases. For example, if an employee requests an alternate time to interview due to caregiving responsibilities, this should alert an employer to a potential accommodation need under “family status”. Employers should also consider specifying in the job posting that accommodations are available upon request.

Immigration Rules & Considerations

Almost all foreign nationals, i.e., those who are not Canadian Citizens or Permanent Residents, require authorization to work in Canada. There are certain classes of foreign nationals that do not require explicit work authorization to work in Canada such as foreign diplomats and their families, military personnel, performing artists, news reports, media crews, and others. Other exceptions may apply to international students, depending on the circumstances.

Explicit work authorization can take the form of two types of work permits: closed, employer-specific, work permits and open, unrestricted, work permits. From a hiring perspective, employers need to ensure that a permit is either open, or if the permit is closed that it names the employer, as otherwise the employee is not authorized to work for that employer. Employers who want to seek authorization for a prospective employee, can apply under either the TFWP or the International Mobility Program, with differing requirements.

Employers should carefully review all documents presented as evidence of work authorization, since it is the employer’s responsibility to ensure that the TFW they employ has the appropriate authorization. To ensure that employers are lawfully employing TFWs, the employer may be subject to governmental agency inspections, either as a result of known past non-compliance, random selection, and/or when there is a reason to suspect an infringement.

If an inspection is initiated, the employer will be contacted to provide proof of compliance with the relevant program’s conditions. If the employer is found to be non-compliant, they may be subject to administrative monetary penalties or periods of ineligibility (bans) from hiring any TFWs. An inspection may be initiated from the first day of employment for which a work permit is issued up to a maximum of 6 years thereafter.

The Consequences of Misrepresentations

Employers and applicants are required to act honestly and refrain from making any representations that are inaccurate, untrue, or misleading. Misrepresentations may either be intentional (fraudulent) or by accident (negligent). If an employer hires a worker, or a worker accepts employment, on the basis of a misrepresentation, the employment may be terminated by the wronged party, who may also be able to seek damages against the misrepresenting party.

Employers should therefore be careful to provide an honest account of the nature and expectations of a job position, and engage truthfully with the applicants. Employees should conversely ensure they provide accurate information in their applications.

An employer is required to conduct their due diligence to verify that an employee is authorized to work in Canada. Employers should be aware of the common ways employees misrepresent their immigration status, namely failing to inform an employer of a negative decision on a pending work or study permit application. Employers should ensure they have policies and structures in place to document their best efforts to stay apprised of a TFWs work authorization.

Employment Contracts and Types of Workers

At the onset, employers may want to assess the scope of work and decide what type of agreement is right for the role. Depending on how a worker is characterized, this may have a drastic effect on the potential consequences for the employer.

The following are the general categories of workers:

• Employees: Employees are entitled to a number of minimum rights under the Employment Standards Act, 2000 (Ontario) (the “ESA”), such as vacation, sick days, overtime, and termination pay. The default is that employment is for an indefinite term, meaning the employment relationship does not cease unless the employee is dismissed or resigns, and where the employee is dismissed, the employer is generally liable to provide notice or pay in lieu of notice.
• Fixed-Term Employees: Employees under enforceable fixed-term contracts are generally not entitled to notice or pay in lieu of notice upon the expiry of their agreement, since they effectively have working notice from the onset of their employment. You can read more about fixed-term employees from our recent blog post on the subject. 
• Independent Contractors: Independent Contractors are considered in business for themselves, and are therefore not considered employees or entitled to any benefits under the ESA.
• Dependent Contractors: Where a contractor is “dependent” on the employer (e.g. they solely work for one employer), courts may find the worker is owed reasonable notice upon termination, in spite of not being an employee under the ESA.

Employers must take care to ensure they are properly classifying the worker, because courts will scrutinize the worker-employer relationship to determine whether the contractor or fixed-term employee is in fact more akin to an indefinite employee. Employers who misclassify such workers may find themselves liable for unpaid ESA benefits, penalties, and in some cases extensive pay in lieu of notice on termination.

The Immigration and Refugee Protection Regulations mandates that employers provide TFWs with an employment agreement setting out the terms of employment – namely salary, vacation, benefits - and job duties prior to the submission of a work permit application.

We’re Here to Help

If you have any questions about these topics, please do not hesitate to contact any member of the Labour & Employment or Immigration groups at McCarthy Tétrault.