Job Postings, Interviews and Employment Offers – Basic Legal Overview

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This lecture explains most common legal issues with job postings, interview, and employment offers. Once an employee or a potential employee understands this basic framework, they can better protect their rights without compromising the chances of finding a job.

This lecture is taught by Amer Mushtaq, LL.B., M. Engineering , B.Sc. (Hons.), who is the Principal and Founder of Formative LLP.   Through his YouTube channel, YouCounsel, Amer shares practical advice from his years of legal experience to help anyone access justice and achieve their goals.  Subscribe today to learn more.


Show Notes:


Lecture Slides:

Machine Transcription:

Welcome everyone this is Amer Mushtaq from You Counsel.

Today we’ll talk about the process of going through job postings, attending job interviews and then receiving employment offers.  The idea is that you understand some of the basic legal concepts to help you understand the process, understand your rights and then appropriately deal with circumstances as they may arise.  We start always with our Disclaimer that this course is not legal advice.  If you have any specific questions you must contact a lawyer or a paralegal.

First thing you want to keep in mind is that whatever employment you obtain in Ontario or elsewhere, in Canada, there is a certain legislative framework that surrounds that employment relationship.  What I want you to remember is there are five basic legislation that, will impact or relate to your employment relationship, at one time or another.  These legislation are (1) The Canadian Human Rights Act.  This is a Federal Act for employees or for employers who are federally incorporated.  If you work for a federal employer, then the Canadian Human Rights Act will apply to your circumstances.  (2)  If you are an Ontario employee then the Ontario Human Rights Code will apply.  If you are an employee elsewhere in another province or territory then the human rights legislation for that province or territory will apply. (3) If you are a non-unionized employee in Ontario then the Employment Standards Act is another legislation that contains a number of rights that you’re entitled to and those are specified in Employment Standards Act.  4. Canada Labor Code is again federal legislation for employees who are employed with a federally regulated company and finally 5. The Labor Relations Act is for Ontario employees who are unionized.

In addition to the legislative framework you must understand the policy framework.  Legislation comes on top and then, there are specific policies that may apply in your specific employment circumstances. (a) If you are a unionized employee, then unionized employees have collective agreements.  These are contracts between the union and the employer which have very detailed clauses about what an employee can do, what are the hours, how do they get benefits, how do they get to scheduling—all those kind of things are specified in collective agreements.  That applies to unionized employees only.  If you are a unionized employee, then you must go through your collective agreement and understand it.  If you are not a unionized employee, then it’s not relevant to you. (b) The second important policy that you want to look at is the employers’ workplace policies.  When you sign up or you join a company, you’re often given an employee handbook, a workplace policies are given a website that contains all those policies and it’s a good idea always, always to review all those policies in detail because those policies govern your conduct, your rights, your obligations in relation to your employer.  You must understand those. I think also if you are with that employer for a while, let’s say for a few years, it’s always a good idea to review those policies from time to time to see if there are any changes and keep those policies in mind because these policies are always very important. (c) The third policy framework is industry specific practices.  What I mean by that is, if there are no direct workplace policies that the employer may use to deal with an issue, then, there may be certain industry practices that they need to follow.  An example could be, for instance, if you’re in automotive sales.  In automotive sales if there is a process of how the regions are specified or how the commissions are paid and at what time and how are the invoices done and what not, there may be some well-known industry practices that many companies follow.  So absent any employer workplace policies, then you can rely on industry specific practices.  Then, if there is a dispute, you can bring this to a judge and the judge will take industry practices into consideration.  A legislative framework is more important than the policy framework that you must keep in mind.

Let’s jump to the job postings.  Job postings are usually pretty straightforward to use.  You see them in Workopolis, Indeed and in the newspapers.  They specify what is it that an employer is looking for in a candidate in terms of experience, in terms of qualification and what not.  But there are few things that you must keep in mind when you’re reviewing job postings.  A job posting must not be discriminatory—in the sense that they should allow everybody/everyone regardless of their gender, race, ethnicity or origin—as long as the person is qualified and is allowed legally to work, it should provide equal opportunity for whoever is applying.  You will notice from many job postings that job postings say “so and so employer is an equal opportunity employer”.  They’re taking it a step further to ensure that you understand that the posting is for everyone to apply and there is no preference over one person or another on the basis of the Human Rights Code.  The preference could be based obviously upon the qualifications but not based upon factors that are discriminatory.  Non-discriminatory criteria is, often, laid out.  If it’s not, it’s implicit and if you notice anything in a job posting that states otherwise, then that’s a cause of concern.  In some circumstances there may be discriminatory criteria that is actually allowed in law.  An example could be if there is a disability clinic that provides services to people who are disabled.  If they decide to hire specifically people with disabilities, then, that may be a situation where discriminatory criteria may be permitted.  But generally speaking the criteria for job postings must be nondiscriminatory.

Pay equity is another issue which is quite significant and is still not resolved in Canada and in a lot of other countries. Pay equity is something to keep in mind.  There’s a legislation called Pay Equity Act.   But that is very specific to, I believe, federal or provincial employers.  I believe only federal.  What you must understand is that it doesn’t apply to private employers.  So you want to understand what is the concept of pay equity? Is it is obvious in the job postings that they are treating everyone equally regardless of their gender with respect to remuneration? Or are there different criteria for that?  These are some of the things to look at in the job postings—obviously in addition to whether you are a correct fit for the criteria of qualifications and expertise that is being sought. 

Let’s say you apply for the job position, you get an interview and now you are attending the interview. There are obviously questions that employers will ask that will confirm your qualifications and your experience.  They will review your resume, will talk about your past experiences, but at times the employer may ask inappropriate questions—or questions that are discriminatory.  Questions, that relate to issues that are prohibited under the Human Rights Code.  The employer is trying to get a sense of that primarily for its’ own benefit.  I can give you an example and that may explain it better.  A lot of young women have these issues and we get these complaints all the time and we file human rights complaints for that.  An employer is trying to gauge whether this particular female employee does she have young children; is she planning to have young children—because if a woman is planning to have children, then she may apply for parental or maternity leave and may be away from employment for about ten months or a year or so.  Employers may not be very comfortable in accommodating that kind of situation so oftentimes they try to figure those things out even before they hire the employee so that they’re not in a position to accommodate that person.  A discriminatory practice—which happens quite commonly. Then there are very subtle ways that the employer will go around asking those questions.  Obviously, the simple question could be: are you married? do you have kids? and what not?  Those are obviously very discriminatory questions but some of the ways the employer goes around those questions is by asking: “hey, what do you do in the evenings? how do you socialize? how do you spend time? etc—trying to figure out from your replies as to whether you have a long term relationship; whether you have any children or not; because if you’re hanging out with your friends every evening or on the weekends then you may not be in a relationship where you have children.  All those kind of questions are inappropriate and so we often get this question that how do you handle those kind of inappropriate questions.  It’s a tricky thing.  You can obviously call on the employer and say, “This question is inappropriate/ I am not comfortable answering that.  But then the challenge is that if you still want the job, then how do you handle the question without actually not responding to the question but still being tactful.  The answer is really that you look at the circumstances.  You think about whether this is the kind of employer you want to work for.  If the employer is showing signs of discrimination right at the outset, (even in the interview process) do you want to have a long term relationship with that employer?  Having said that, if you still want the employment then obviously, you deal with it tactfully. You do not give away answers that may lead them to believe one way or another—you don’t need to lie about it but you can still be tactful; you can be a little bit evasive in terms of those questions and then the employer may get the message to back off.  There are ways to handle those questions and obviously you have the option of saying that you’re not comfortable and then just do not answer those questions.

One more thing in the modern world that I want to sort of raise with you is that: yes, the employer can ask these questions and often do ask inappropriate questions at the interview stage.  With modern technology with all social media websites, a lot of employers are not even getting to the stage where they need to figure this out.  They’ll just simply go to your Facebook or your Linked In or other social media accounts.  You know most people have their lives on those social media websites and it’s very easy to figure out someone’s relationship status or children and whatnot.  These decisions about the selection of who gets to the interview may take place even before the employer calls you for an interview by just simply going through your social media. It is absolutely very, very common for an employer to go through social media websites of potential candidates. It has become, in fact, a routine practice for employers to do that.  If you’re looking for a job, if you want a certain career, you have to be watchful of what you put on social media websites because they absolutely have an impact.  You can use those social media websites to have a positive impact on your job or they can diminish your chances of seeking employment—even though you may have excellent credentials.  This is something to be careful about in terms of social media context.

In terms of remedies, if you are asked an inappropriate question and by that I mean a question that’s discriminatory something about your age, your marital status, your sexual preference—all of these things, including your ethnicity, religion—are prohibited in an interview.  But if an employer does ask you those questions, then you have in addition to saying that you’re not comfortable in asking those questions, you actually have the ability to file a complaint with the Human Rights Tribunals or Human Rights Commission—depending upon whether you’re in Ontario or in a federal jurisdiction or in another province—for discrimination and you can get remedies through that process.  That is something to keep in mind or you can commence court actions or you can seek legal advice and then proceed accordingly.  But you know if you’re really looking for a job and you want to work for that employer then you may have to be tactful to get into the workplace and getting the job there. 

Let’s say you pass through the interview process.  Now you have a job offer in your hand.  The single most important thing that you want to keep in mind when you look at that job offer is the termination clause—not your salary, not your hours but the termination clause.  That’s the single most important thing because we have spoken about this in a separate lecture.  You can go through our channel and there’s a whole lecture about contracts and the termination clauses.  So I’m not going to repeat that here. But this is the single most important thing—because in your lifetime in this day and age you will go through a number of employments.  You will be let go from employments regardless of how good an employee you are—just because of the economics of it.  And then the termination clauses will be triggered—which will decide what benefits/what rights do you have on termination.  You could have significant rights on termination if the termination clause is not in your contract or if it’s drafted in a way that it benefits you most.  So that’s the single most important thing.  Second most important thing is the clause about restrictive covenants.  This is again included in a separate lecture.  But restrictive covenants are the things that you’re not allowed to do even after your employment has ended.  Those restrictive covenants control your actions even after your employment has ended.  You want to make sure that you understand those clauses and you’re comfortable, you’re agreeable with those because even when you end the employment, you’re no longer with the company and you still are not able to do certain things, so it’s important for you to know what are those things.

One thing that I want to keep in mind is that once you sign the contract, once you sign on that dotted line and you give it back to the employer then you have a binding contract.  You are bound by it so that the start date may be a week from now, you know a month from now but the contract the moment you have signed you’re bound by it.  That is why it’s important that if you are unsure about any clauses, if you’re not clear about anything, you want to talk to an employment lawyer or anyone anybody else to understand that prior to signing it.  Once you sign it you’re bound by that contract.  Secondly, oftentimes we are posed with this question that: look, I signed a contract and now I have another job offer, can I just leave that one.  I haven’t started there and then go and join another company.  Well, the answer is yes.  You can go join another company but you are actually in breach of the first contract.  Most employers won’t care.  Some employers may and they will come after you for the breach of contract and then they may seek damages so be mindful of that.  We have done cases converse to it.  In one situation, we had a pharmacy manager who came to us who had applied for a job in another pharmacy, got the job, signed the contract, the start date was a month from then and then he resigned from his existing position and then at some point in between that time after he resigned and before he began employment at the next place, the new employer contacted him and said they were rescinding the offer.  So he approached us and we said no, it’s a breach of contract.  They cannot just simply rescind an offer—because it’s a binding contract.  So we had to sue that employer and seek damages.  Signing the contract, the act of signing, is important.  Once you sign it then you’re bound by those terms.

Hopefully this was beneficial in terms of the hiring process and job postings.  It gives you some sense of what your legal rights are.  If you have any questions or if you have any specific topics that you want us to cover, by all means contact us and we’ll cover those in our future lectures.  Thank you for watching.

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