Canadian Employment Law Today

February 28, 2018

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Have a question for our experts? Email Canadian HR Reporter, a Thomson Reuters business 2018 2 | February 28, 2018 Pay for time spent on call Question: How should on-call hours be treated with regard to overtime rules if the employee isn't actually called into work? Answer: In all Canadian jurisdictions, em- ployment standards legislation requires that employees be paid for the work they perform and employees who report for work must re- ceive a minimum number of hours of pay. However, time spent on call may also be con- sidered "work" warranting compensation. In British Columbia, for example, "work" is defi ned in the Employment Standards Act as: "the labour or services an employee performs for an employer whether in the employee's residence or elsewhere." e B.C. statute states that "an employee is deemed to be at work while on call at a location designated by the employer unless the designated location is the employee's residence." If an employer requires an on-call employee to remain at a specifi c location that is not her home, the employee must be com- pensated for those hours because she is con- sidered to be under the employer's control. If the employee is able to remain at home, the Answer: Employers are not expressly prohib- ited from asking job candidates about their police records, or from requesting a criminal record check as part of the application pro- cess. However, employers should be aware of the human rights and privacy concerns that may arise if they make such inquiries. Human rights legislation in several Ca- nadian jurisdictions prevents employers from discriminating on the basis of certain criminal charges or convictions. e level of protection varies depending on the specifi c language of the legislation. In British Colum- bia, Newfoundland, Prince Edward Island, Quebec, and the Yukon, an employer cannot discriminate against an employee because of a criminal conviction that is unrelated to her employment. In Ontario, the prohibited ground of discrimination is "record of off enc- es." ere is no human rights protection from discrimination on the basis of a criminal re- cord in Alberta, Manitoba, New Brunswick, Nova Scotia, or Saskatchewan. Certain provinces also distinguish be- tween criminal charges and convictions. In Ontario, for example, the Human Rights Commission has found that the statutory prohibition against discrimination based on an employee's record of off ences does not ap- ply to criminal charges. British Columbia has taken a diff erent approach, even though the language of the B.C. Human Rights Code re- fers to convictions. In Clement v. Jackson, the B.C. Human Rights Tribunal found that this protection also extends to criminal charges. In jurisdictions where an employer is pro- hibited from discriminating based on crimi- nal convictions that are unrelated to employ- ment, an employer must inquire about the individual circumstances of the criminal re- cord in each case, to determine whether there is a relationship to employment. In Wood- ward Stores (British Columbia) Ltd. v. Mc- Cartney, the B.C. Supreme Court ruled that the following factors should be considered in determining whether a criminal conviction is related to employment or intended employ- ment: • Does the behaviour for which the charge was laid, if repeated, pose any threat to the employer's ability to carry on its business safely and effi ciently? • What were the circumstances of the charge and the particulars of the off ence involved — for example, how old was the individual when the events in question occurred, and were there any extenuating circumstances? • How much time has elapsed between the charge and the employment decision? What has the individual done during that period of time? Has the person shown any tendencies to repeat the kind of behaviour for which she was charged? Has the indi- vidual shown a fi rm intention to rehabili- tate themselves? Practically, an employer may wish to wait until it is ready to off er a job candidate a po- sition before asking for a criminal record check. If an employer completes a criminal record check on all applicants and discovers that one candidate has a protected criminal record, the employer may fi nd itself exposed to a human rights complaint if it decides not to hire that person. Before requesting criminal record checks, employers should also be mindful of the pri- vacy legislation in their jurisdiction govern- ing the collection and use of personal infor- mation. Generally speaking, an employer is able to collect personal information from a criminal record check if it is "reasonably nec- essary" in the circumstances. ere must be a clear nexus between the information be- ing collected and a legitimate work-related purpose. A blanket requirement that all job applicants for all positions must undergo a criminal record check is unlikely to meet the reasonable necessity test. Factors to consider include the nature of the employer's opera- tion and the position in question. Employers should also consider whether there is a less invasive way of achieving the same results, and whether the loss of privacy is proportion- al to the benefi ts gained. It may be reasonable to conduct a criminal record check for posi- tions of trust, or where the primary duties in- volve protecting the security of people and/ or material assets. It is usually easier for an employer to justify a criminal record check for a job applicant who is a stranger to the employer's organi- zation than for an existing employee who is known to the employer. Once an employer becomes familiar with a current employee and her suitability in an existing role, it be- comes diffi cult to establish that it is reason- ably necessary to conduct a criminal record check to allow the employee to continue in her current role. It may be more reasonable to require a check if the employee is taking on signifi cantly diff erent responsibilities, and if a criminal record may be relevant to those new responsibilities. Several provinces have statutes that specif- ically require criminal record checks in speci- fi ed circumstances. In British Columbia, for example, the Criminal Records Review Act requires certain categories of organizations to ensure that all employees who work with, or have unsupervised access to, children or vulnerable adults, undergo criminal record checks. is requirement covers employees such as teachers, health care professionals, social workers and care facility employees. Job applicants who have been off ered such positions are also required to undergo a crim- inal record check. For more information see: • Clement v. Jackson, 2006 CarswellBC 3539 (B.C. Human Rights Trib.). • Woodward Stores (B.C.) Ltd. v. McCartney, 1983 CarswellBC 58 (B.C. S.C.) Have a question for our experts? Email ON-CALL on page 7 » Have a question for our experts? Email Asking questions about criminal charges and convictions Question: Can an employer ask a job candidate about her police record? If the employer wants to tighten security in the workplace, can it ask existing employees about any charges or convictions? Asking questions about criminal charges and convictions Question: police record? If the employer wants to tighten security in the workplace, can it ask existing employees about any charges or convictions? with Colin Gibson Ask an Expert HARRIS AND COMPANY VANCOUVER

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