Employment Lawyer Archives

Illegal Interview Questions: What They Are And What To Do About Them

June 17, 2019/in Employment Lawyer /by Kathy Chittley-Young

Are you married? How old are you? How’s your health? Have you ever been arrested? What country are you from? Do you like to drink?

These are probably not questions you want to be asked by someone you barely know, let alone by someone determining your future employment. These prying inquiries may be a faux-pas in polite conversation but they are an absolute no-go in the context of a job interview.

Illegal Interview Questions

Sometimes, versions of these questions may come up casually and innocently in the context of a job interview as employers want to make sure that you will also be a good fit for the company. However, Canadian human rights law prohibits interviewers to ask questions concerning:

Country/place of origin and citizenship status
Religion, faith or creed
Age
Gender or sexual orientation
Race or ethnicity
Family structure, children or marital status
Mental or physical health and disability
Appearance, height and weight
Pardoned offences

With very limited exceptions, it is forbidden to ask questions about any of these topics at any point in the hiring process. Questions should only seek information relevant to the candidate’s ability to perform the job for which they are applying.

How To Deal With Illegal Questions During An Interview

In interviews, passing references to some of these topics may come up – “sorry to delay, my kid is sick and was on the phone, you got kids?”

It is also regrettably possible that an interviewer may make glaringly inappropriate inquiries – “We’re looking for someone committed, do you plan on having children in the future?”

It is up to you to decide in that moment how you want to deal with the situation. Depending on the circumstances, you might not want to stop the interview in its tracks and instead decide to deflect or even directly answer the question. Some options when confronted with this situation are:

“My [family status/country of origin etc.] does not affect my ability to perform this job.”
“I’d prefer not to answer this question unless there is a particular reason why it is relevant.”
“Can you please explain to me how this is applicable to my performance of the job?”

The trouble with certain inappropriate questions is that, even if they were asked in passing and without mal-intent, they leave open the question of what role your answers to them played in the hiring process.

Kartuzova v HMA Pharmacy Ltd.

According to the Ontario Human Rights Tribunal (OHRT), simply asking improper questions is enough to prove discrimination. Such was the case with Kartuzova v HMA Pharmacy Ltd. In this case, Kartuzova applied for a position as a pharmacy technician and was denied the job after an interview ended suddenly following questions about her family and marital status, financial situation, and how she came to Canada. Kartuzova said she had felt obligated to answer these questions and that the tone of what had otherwise been a very positive interview changed abruptly following her answers. The OHRT ruled that the questions Kartuzova had been asked were in violation of the Human Rights Code and ordered the pharmacy to pay her $4,000 for loss of dignity and $496.13 for lost wages.

Employment Law Experts

If you have been asked inappropriate or discriminatory questions during an interview that you felt affected your employment offer, KCY at LAW can help you to register a claim with the OHRT to seek compensation for your lost opportunity. Call us at (905) 639-0999 or reach us online to book your consultation.

What is Whistleblowing? Guide To Whistleblowing in Canada

June 3, 2019/in Employment Lawyer /by Kathy Chittley-Young

Whistleblowing is when an employee reveals corporate wrongdoing to law enforcement.

Whistleblowing was defined in 1972 by Ralph Nader as “an act of a man or a woman who, believing in the public interest overrides the interest of the organization he serves, publicly blows the whistle if the organization is involved in corrupt, illegal, fraudulent or harmful activity.”

What Legal Protections Can Whistleblowers in Canada Expect?

While there are increasing incentives from governments and regulators for whistleblowers to go public about corporate misconduct, protections for whistleblowers are still very limited. Few Canadian laws pertain directly to whistleblowing and therefore whistleblowers are mostly unprotected by statute.

There is, however, a patchwork of protection provisions for whistleblowers under the Canadian Criminal Code, Public Servants Disclosure Protection Act (PSDPA), the Public Service of Ontario Act, 2006 as well as the Securities Act.

Section 425.1 of the Criminal Code, for example, states that employers may not threaten or take disciplinary action against, demote or terminate an employee in order to deter him or her from reporting information regarding an offence he or she believes has or is being committed by his or her employer to the relevant law enforcement authorities.

In short, an employer cannot threaten an employee with negative repercussions to deter them from contacting law enforcement with information about their employer’s offence. Punishment for employers who make such threats or reprisals can include up to five years imprisonment and/or fines.

Whistleblowing in the Federal Public Sector

Employees in the federal public sector are protected by the PSDPA. This act demands that employers establish a code of conduct with civil protections for whistleblowers. Ontario’s Public Service of Ontario Act, 2006 has similar protections to the federal PSDPA.

Additionally, Ontario’s Securities Act established a new whistleblower program in July of 2016. This consisted of amendments to the Securities Act that give extra protection to individuals who report a potential violation of Ontario securities law.

It is important to note, however, that you are only covered by these protections if you bring your information forward to a law-enforcement body. You are not protected if you leak your information to the media.

Employees Have a Duty of Fidelity

As an employee, you have a legal duty of confidentiality and fidelity to your employer. If you become aware that a superior in your company has committed a serious misdeed, this must usually be reported first to the employer, not the police or a regulatory body. After you have reported the misconduct to the appropriate internal body, your employer doesn’t have to disclose to you what they do with this information. This means that you may never know the results of their inquiry into the reported transgression.

You’re Not A Whistleblower If…

Lastly, not every misstep or misdeed warrants whistleblowing. You are not a whistle-blower if the issue you are reporting:

pertains to personal or personnel issues (i.e. workplace bullying and harassment);
is regarding a dispute between the you and the organization (i.e. a dispute regarding vacation time); or
involves simple mismanagement (i.e. poor supervision) as opposed to gross mismanagement that poses a risk to the organization or public.

The above issues can usually be addressed internally through Human Resources.

Legal Experts in Canadian Whistleblowing

If you are concerned with the legal implications of corporate or managerial misconduct at your workplace, be sure to speak with an experienced employment lawyer. KCY at LAW can help.

Call us at 905-639-0999 or click here to book your consultation.

Temporary Layoffs – Guide For Employers & Employees

May 20, 2019/in Employment Lawyer /by Kathy Chittley-Young

You were laid off? Oh no! That’s awful. I’m so sorry. You know what, they never appreciated you the way you deserve. What a lousy bunch of – temporarily? Ohhhh. Huh. So, you’re not fired? Ok. Refresh my memory on this whole temporary layoff thing!

What Is A Temporary Layoff?

Chances are, you’ve heard of temporary layoffs. Maybe you’ve wondered if this could happen to you and, if it did, what exactly that would mean.

A temporary layoff is the cutting back or complete cessation of an employee’s employment with the understanding that they will be called back to their full-time position within a specified period of time. A temporarily laid off individual is still considered an employee, even if they are not working. This can mean that they are not working at all, or even simply earning less than half of their regular wages.

Temporary Layoffs – A Solution for Hard Times

A temporary layoff is a way mitigate economic hardship for both employer and employees. Temporary layoffs are often brought on by things like economic downturn, shortages of work and seasonal employment.

Temporary layoffs are most common in union environments where collective bargaining agreements determine the parameters of a layoff such as which employees are the first to return to work.

A temporary layoff allows employers to avoid severance or termination costs as long as the employee is recalled to work within 13 weeks of the layoff’s commencement. Though it would certainly be appreciated by their employees, employers have no obligation to provide notice of a layoff. Additionally, employers are not required to give termination notice until the last day of the layoff should it become clear that the layoff will have to become permanent.

Contractual Agreements and Temporary Layoffs

The parameters of temporary layoffs are set out in the Employment Standards Act (ESA). However, the ESA doesn’t give employers the right to enact them. The right to temporarily layoff an employee must be contractually stated, either in the employment contract or the collective bargaining agreement.

If an employee is temporarily laid off without a provision for this in their contract, the layoff would be considered a constructive dismissal and the employee would be entitled to seek damages for wrongful dismissal.

Wrongful dismissal charges may be avoided if the laid off employee is immediately recalled to their former position. Furthermore, some courts have found that employees who refuse to return to their position after a non-contractual layoff will be found to have failed in their duty to mitigate their damages.

If the power to perform temporary layoffs was not in written agreement at the time of hire and an employer wishes to pursue this option, they should approach their employee with a written proposal for a temporary layoff. It is possible that the employee will choose this over termination, especially since employees can usually collect Employment Insurance benefits during a layoff.

How Long Can Temporary Layoffs Last?

A temporary layoff can last up to 13 weeks in a consecutive 20-week period. However, if a layoff exceeds this 13-week period it will become a termination at which point the employee will be entitled to termination pay in lieu of notice with the first day of the layoff becoming the date of termination.

However, the ESA provides that a temporary layoff may be extended to as long as 35 weeks if:

The employee continues to receive substantial payments from the employer,
the employer continues to make payments for the benefit of the employee under a legitimate retirement or pension plan or a legitimate group or employee insurance plan,
the employee receives supplementary unemployment benefits,
the employee is employed elsewhere during the lay-off and would be entitled to receive supplementary unemployment benefits if that were not so,
the employer recalls the employee within the time approved by the Director, or
in the case of an employee who is not represented by a trade union, the employer recalls the employee within the time set out in an agreement between the employer and the employee; or

If an employee quits before a layoff is over they are not owed severance or termination packages but may still be entitled to accrued benefits such as vacation pay.

Temporary Layoff Legal Experts

Employers should always seek legal counsel before temporarily laying off an employee. To speak with an experienced employment lawyer about temporary layoffs or any other employment law matter, call KCY at LAW at (905) 639-0999 or contact us online here.