Month: February 2021

Illegal Interview Questions

Employers can hire a job applicant according to their personal preferences. However, when it comes to asking questions during the job interview, they should be more careful. In this blog, we will explore the topic of illegal questions during a job interview. Employers should avoid raising any personal questions that could be interpreted as discriminatory, such as “Are you married? Do you have any children? Where do you come from?”. These questions are considered inappropriate and prohibited by the Canadian Human Rights Act or provincial human rights legislation.

According to the Canadian federal and provincial human rights legislation, employers should refrain from asking candidates any person questions in connection to

• Age
• Colour
• Gender identity or expression
• Sexual orientation
• Race
• National or ethnic origin
• Citizenship
• Marital or family status
• Religion, or creed
• Mental or physical disability
• Pardoned offences
• Receipt of Public Assistance

Employers should familiarize themselves with the prohibited grounds of discrimination in the relevant human rights legislation. They should focus on asking questions that aims to reveal a job applicant’s potential to perform job duties well rather than probing into these personal questions that may be construed as discriminatory.

 Case in Point-Kartuzova v HMA Pharmacy Ltd

In the decision of Kartuzova v HMA Pharmacy Ltd., 2012 HRTO, 328, the Ontario Human Rights Tribunal ruled that asking a job applicant personal questions such as family, marital status, financial situation and how she came to Canada could amount to discrimination and thus violate the Human Rights Code.

In this case, Ms. Kartuzova applied for a position as a pharmacy technician. She was asked by the employer these personal questions during the interview, which she felt pressured to answer. The interview ended abruptly and she did not get the job. The Tribunal noted that this behaviour runs contrary to section 5 of the Code, which reads that every person has a right to equal treatment with respect to employment without discrimination. It ordered the employer to pay Ms. Kartuzova $496.13 as monetary compensation for lost income and $4,000 for injury to dignity, feelings and self-respect.

Take Away for Job Applicants

If you are a job applicant who come across these personal questions during the interview, you could choose to deflect these questions or even refuse to answer them.  If you perceive that these questions are ill intended and reveal the employer’s discriminatory hiring policy, it is advisable for you to consult a lawyer for legal advice, once you decide to pursue further actions

Take Away for Employers

Employers should create a hiring process that aims to assess each candidate’s ability to perform essential job duties. They should structure interviews in a way that promotes diversity and focus on objective criteria. Employers could use multi-person panels to conduct interviews and acquaint its staff with discriminatory grounds so that these questions would not pop up during the interview. Besides, they should ask all job applicants the same questions during the interview process to maintain fairness.

Whether you are a job applicant or an employer, top Toronto employment lawyer Stacey Ball can help you explore your legal options if you have any questions regarding illegal interview questions during hiring process. Please contact our office at 416-921-7997 extension 227.

About Infectious Disease Emergency Leave

 Employees are entitled to take infectious disease emergency leave if they are not performing job duties because of the reasons in connections to a designated infectious disease. In this blog article, we would like to answer some questions about this leave given the rampant nature of the infectious Covid-19.

Q: What is an Infectious Disease Emergency Leave?

The infectious disease emergency leave refers to an unpaid, job-protected leave. This leave is available to all employees covered by the Employment Standards Act.

So far, the only disease that entitles you to take infectious disease emergency leave is Covid-19. Even though it was on March 19, 2020 that the Employment Standards Act was amended to include infectious disease emergency leave, it is retroactive to January 25, 2020. This leave will end on July 3, 2021.

Q: Who are Eligible for Infectious Disease Emergency Leave?

Employees can take infectious disease emergency leave if they will not be performing duties of their positions due to the following reasons:

• The employee is under individual medical investigation, supervision, or treatment in connection to a designated infectious disease, whether this happens in Ontario, or another province, territory or country;
• The employee is in quarantine, isolation or is subject to a control measure implemented as a result of information or directions related to a designated infectious disease issued bya public health officer, a physician or a nurse, Telehealth Ontario, a board of health, a municipal council in Ontario or the Government of Ontario or Canada;
• The employee is under direction given by their employer in response to the concern that this employee might expose other individuals in the workplace to a designated infectious disease;
• The employee is providing care or support to individuals because of a matter in a matter related to a designated infectious disease. The list of individuals is very wide, which could include family members such the employee’s spouse, parents, children, siblings, in-laws as well as any person who considers the employee to be like a family member;
• The employee is directly affected by travel restrictions in connection to a designated infectious disease and thus cannot be reasonably expected to travel back to Ontario;
• The employee is following a Covid-19 related order issued under section 22 or 35 of the Health Promotion and Protection Act;
• The employee is subject to an order that related to Covid-19 under the Reopening Ontario (A Flexible Response to Covid-19) Act, 2020.

Q: How long is an Employee Entitled to the Infectious Disease Emergency Leave?

There is no limit as to the length that an employee can be entitled to for the infectious disease emergency leave. Employees are entitled to take this leave as long as the event that triggers the entitlement to the leave lasts. Once the triggering event is over, the employee needs to go back to work.

Q: What Rights does an Employee Have during the Infectious Disease Emergency Leave?

• Employees who take this leave are entitled to the same rights enjoyed by the employees who take pregnancy or parental leave.
• Employers cannot threaten, fire or penalize an employee in any way if an employee is planning to take an infectious disease emergency leave.
• Employers may require the employee to produce evidence reasonable in the circumstances to prove that they are eligible for this leave. However, during this leave, employers cannot ask for a doctor’s note.

Q: What Benefits does an Employee Have during the Infectious Disease Emergency Leave?

• Employees are entitled to continue taking part in the benefit plans that their employer offer such as pension plans, life insurance plans, accidental death plans, extended health plans and dental plans.
• Employees must continue to pay their share of the premiums on these plans. The employer must continue to pay its share of the premiums for any of these above-mentioned plans unless the employee notifies the employer in writing that they will not continue to pay their share.
• Under this infectious disease emergency leave, the regular rules around constructive dismissal and temporary layoff in the Employment Standards Act are suspended. However, common law rules still apply.

If you need any legal advice in connection to the infectious disease emergency leave, Top Toronto employment lawyer, Stacey ball can advise you on your legal options. Please call us at 416-921-7997, extension 227

Taking Clients From Former Employers

It is common for employers to restrict their employees’ ability to work for a competitor or solicit their clients once the employment relationship breaks down. In this blog, we illustrate a few key points on how to restrict a departing employee from taking clients from business.

 Use Restrictive Covenants Clauses in the Employment Contract

While the courts seek to protect the employers right to its clients, departing employees are also protected in terms of maintaining their career. Employees holding non-managerial and who are not “key employees” crucial to your business are allowed to make their services available to former clients.

However, restrictive covenants could be drafted into the employment contract to show exactly what a departing employee can or cannot do. Our blog article, What You Should Know About Non-Solicitation and Non-Competition Clauses, fully discusses such restrictive covenants clauses in the employment context with their usage and enforceability.

Fiduciaries and Common Law Duty of Good Faith and Fidelity

Employees who have significant responsibility and are “key employees” may be considered fiduciaries and as such, are under a strict duty to act solely in the best interests of their employer, even when exiting the company. Even if there is no contract, these employees cannot actively solicit clients of former employers. There exists at common law a duty of good faith and fidelity that protects the confidential information of organizations that may be used by competing businesses when employees switch between companies.

a. Post-Employment Fiduciary Obligations

Fiduciaries obligations continue after employment has ended and do not cease merely because of resignation or dismissal by the employer. It is stated that fiduciary obligation was a larger more exacting duty than simply the duty to respect the former employer’s trade secrets and the confidentiality of its customer lists. While ordinary employees only have a duty to respect trade secrets and not property such as customer lists, the fiduciary has a duty not to direct solicit the former employer’s customers for a reasonable period of time. As a general rule, when it comes to former clients, a fiduciary must wait until they come to him or her of their own initiative. A breach of fiduciary obligation after termination of the employment relationship will be actionable even if the employer has not suffered damages

b. A Case in Point

 In the case of Computer Enhancement v J.C. Options, 2016 ONSC 452, two former employees were ordered to pay their employer $132,581 in damages for breach of contract and fiduciary duties. In this case, the employees resigned and began soliciting clients of the employer. The court held that both employees, one who was a junior salesperson and the other who was a “key employee” with fiduciary responsibilities breached their common law duty to not solicit clients of the employer.

Unless the employee is found to be a key employee with a fiduciary duty, solicitation may occur if there is no contractual clause limiting such action.  Ultimately the case reveals the importance of requiring salespersons to sign employment agreements with enforceable non-solicitation or non-competition clauses and shows the importance of keeping track of lost revenue when former employees have solicited your clients.

In determining whether an employee is a fiduciary, the court will analyze the employee’s position and go beyond mere job titles. This is a complex matter. It is strongly suggested that you should seek legal advice in this aspect. If you come across any legal issue in connection to the solicitation of clients from previous employers, Top Toronto employment lawyer Stacey Ball can help you explore your legal options. Please contact our office at 416-921-7997 extension 227.