Human Rights in the Workplace

Fact versus fear: how employers should respond to H1N1 in the workplace to avoid human rights violations

Many of you will have heard about the story that hit the news last week of a Manitoba man who was barred from patronizing a restaurant in Seven Sisters, Manitoba because his wife had been diagnosed with the H1N1 flu.  The story broke on Richard Cloutier's show on CJOB radio and I was fortunate enough to have been interviewed by him on-air about the human rights implications of the restaurant's decision to deny service.  The man has, apparently, now filed a human rights complaint against the restaurant with the Manitoba Human Rights Commission.  Time will tell how this case ultimately resolves itself.

While this particular situation involved the denial of services by a service provider, the comments I made on the radio show are equally applicable to employers and the workplace.  I thought it might be useful here to let you know what I said and expand upon my comments a bit further:

What is H1N1?

Health Canadaadvises that H1N1 is a strain of the influenza virus that usually affects pigs (and so sometimes this flu is also called the "swine flu").  This virus can, however, make people sick as well.   It is a respiratory illness that causes symptoms similar to the regular human seasonal flu.

How do I deal with H1N1?

1.    Operate based on Fact versus Fear

When dealing with or otherwise deciding how to address H1N1, businesses of all stripes need to operate on the basis of fact versus knee-jerk fear.  This is often easier said than done, especially when dealing with health and safety-related issues, but it is critical.  The minute you take action based on fear versus fact, that triggers a risk of running afoul of the many pieces of legislation business owners need to abide by but, in particular, human rights law. 

In terms of H1N1, it is important for business owners to understand what it is, how it is transmitted and how to protect against an outbreak.  Accessing information on the Public Health Agency of Canada's website on the H1N1 virus or similar information placed on provincial government websites (such as the Province of Manitoba's fact sheets) are key steps.

 

2.    Assume that H1N1 constitutes a disability under human rights legislation

Human rights legislation across Canada prohibits discrimination on the basis of disability or perceived disability.  While historically the flu hasn't been considered a disability by human rights commissions, that related to the regular human flu which is very common and usually of short-term in duration.  H1N1 has been classified as a pandemic virus by the World Health Organization which may well result in human rights commissions considering it in a different light.  Such an approach would be consistent with the Ontario Human Rights Commission's response to the SARS outbreak back in 2003. 

It is important to remember as well that human rights commissions take a broad approach to what constitutes a disability.  A person can, as a result, be considered disabled on the basis of how they are treated even if they do not have an actual disease or illness.  Consider, for example, the man who was barred from the restaurant.  He did not have H1N1, his wife did.  Yet, the restaurant seems to have treated him as though he had the disease.  The H1N1 label had an effect on him anyway.  A human rights commission may well conclude that this person was perceived as having a disability and discriminated against as a result of that perception.

In my view it would be wise for employers to assume that H1N1 would be considered a disability by a human rights body and operate on the basis. 

3.    Uphold your human rights-related responsibilities to all employees impacted by H1N1

The human rights-related responsibilities of employers extend not just to employees who are or may be infected by the virus but also to employees who are not infected.  

Employers must ensure that their workplaces are free of discrimination and harassment.  This means that they need to:

a.    make sure they have a clearly thought out plan to respond to H1N1 in the workplace, one that does not discriminate against employees who have H1N1 or may have been exposed to H1N1.  In particular, you want to be able to justify any actions you take in relation to employees who have H1N1 or may have been exposed to H1N1 on the basis of fact-driven health and safety precautions.  Here, you would want to follow the lead of public health officials and medical professionals;

b.    make sure that you take appropriate steps to accommodate employees who are disabled by H1N1.  What type of accommodation will be reasonable will depend on the circumstances.  It can, however, include things like permitting the employee to take time away from work, allowing the employee to work from home, or providing the employee with alternate work;

c.    make sure to refrain from harassing employees who may have H1N1 or are suspected of having H1N1 and prevent your employees from doing the same.  People have a natural fear of the unknown and since H1N1 is still a very new disease you may find your non-infected employees acting out of fear when they find out or suspect a work colleague has come down with H1N1 or has been exposed to someone with the illness.  This can result in harsh treatment of their colleagues.  Take any complaints of this type of harassment seriously and take appropriate steps to put a stop to any inappropriate behavior. 

Conclusion

While the barring of the man from the restaurant is the first incident of this kind that I have heard about relating to H1N1, I'm hopeful that it will be the last.  I'm also hopeful that the above information helps you avoid coming into conflict with the human rights legislation in your jurisdiction in relation to how you operate your business if H1N1 knocks on your door.

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2009-2010 Manitoba Human Rights Commission Course List

The course list for the 2009-2010 'training season' at the Manitoba Human Rights Commission has just been finalized.  As usual, there is a terrific line-up of courses that you can take taught by Commission staff, the Commission's legal counsel and, yours truly.  On tap this year for me are my usual courses on "How to Investigate a Human Rights Complaint" and "Reasonable Accommodation in the Workplace."  These courses fill up fast so if you haven't had a chance to attend yet, I'd encourage you to call the Commission as soon as you can to sign up.  Download Education brochure 2009 2010.

For those of you who have been asking about other courses I might be teaching at the Commission I'm happy to announce that I've spent my summer putting together a brand new course that I think will be a great addition to the Commission's current line-up.  Called "Workplace Human Rights Complaints: myths, fears & realities", I'm going to be covering a whole range of common topics that I come across in the work I do on a daily basis and which I find that human resource specialists, managers and employers struggle regularly with.  My goal is to dispel the myths and fears associated with workplace human rights complaints, and let you in on the real truths.  Here's what we'll be discussing:

• legal liabilities of employers for human rights-related misconduct in the workplace
• ways in which a human rights complaint can come to your attention in the workplace (some obvious, some not so!)
• what to do if you become aware of what you think is a human rights complaint (learn what you need to do to help prevent legal liability)
• how to decide whether a human rights complaint needs to be investigated (the questions you need to ask yourself before jumping head-first into or avoiding an investigation)
• essential elements of a good investigation
• liability issues relating to the poor handling of investigations
• the top 8 fatal mistakes employers make when faced with a workplace human rights complaint
• what to expect when the Human Rights Commission gets involved (what really happens)
• my top 5 tips for dealing with the Commission.

The course has been structured to be an open dialogue with quick quizzes and test-your-knowledge scenarios to ensure you leave with a solid understanding of the material.  I'll also save time for those "I've always wanted to ask this about the Commission but didn't know who to ask" questions that may have been plaguing you for years!  I hope you join me as I embark on this new course.  I'm only teaching it three times this session so if you're interested, please contact the Commission and sign up soon.

I know there are those of you who live outside of Manitoba or you otherwise can't make it to my courses but have been asking for access to my materials anyway.  Please note that I am currently working at getting my content together to start making my courses available online.  I'm still in the early stages of development but will keep you updated so you know when this becomes reality. 

 

Interview: Impact of Ontario accessibility standards on delivery of training in the workplace

I recently had the opportunity to be interviewed for the July 2009 issue of the OHSCompliance and EHSjustice newsletter (a Canadian publication addressing Environmental, Health and Safety News and Legislation which you can find at www.ecolog.com).  The focus of the article was on how the standards currently being developed pursuant to the Accessibility for Ontarians with Disabilities Act, 2005 might impact how employers and safety training agencies in Ontario deliver training and/or provide safety information in the workplace.  (You can find out more information about the legislation by viewing the Accessibility for Ontarians with Disabilities website).  As I thought readers of this blog may well have an interest in what was discussed in the article, I was kindly provided with permission from EcoLog Information Resources Group, a division of Business Information Group and publisher of EHScompliance.ca newsletter to reproduce the piece below.  Please note that the article cannot be reproduced, reprinted, republised or reposted anywhere else without the written permission of the original publisher.

OHScompliance and EHSjustice -July 2009

Accessibility standard may affect how training, safety info delivered in Ont

by Mark Sabourin

Across the country, advocates for persons with disabilities are watching with interest as Ontario develops standards under the Accessibility for Ontarians with Disabilities Act,2005 (AODA). A standard for customer service came into force on January 1, 2008, and four others are under development: transportation; built environment; information and communications; and employment.

Public sector organizations must comply with the customer service standard by January 1, 2010, while private sector and non-profit organizations must comply with the standard by January 1, 2012.

The four remaining standards are expected to be finalized in the coming months.

Ontario’s employers and safety training agencies haven’t been paying much attention to the process so far, and very likely they should have. The information and communications standard, for one, will require that information about “workplace health and safety procedures and systems” be made available to employees with disabilities in “accessible alternate [sic] formats and communication supports.” The employment standard specifically references WHMIS (workplace hazardous materials information system) material, among others, which must be made compliant with the information and communications standard.

Even staunch advocates of the standards are quick to explain that this does not mean that all MSDSs (material safety data sheets) will have to be rendered in Braille. But the information and communications standard, if adopted (and it has passed all phases of public review), may significantly affect how training is delivered and how safety information is communicated.

In addition to disabilities that are perhaps more familiar to employers, such as mobility, hearing or visual impairments, the AODA includes learning disability. That covers between 4% and 6% of Ontario’s population, says Diane Wagner, coordinator, Public Policy and Client Services with the Learning Disabilities Association of Ontario (LDAO). Wagner served on the information and communications standard committee, and the LDAO was also represented on the employment standard committee.

Really, it shouldn’t come as a surprise. The current Ontario Human Rights Code prohibits discrimination in employment “because of handicap,” which includes learning disability.  The Ontario Human Rights Commission has a long list of policies, supported by case law, around the doctrine of reasonable accommodation. There is no easy definition, but if a worker’s disability can be accommodated without undue hardship or compromise to safety, then it must be.

Donna Seale, Manitoba human rights lawyer and educator, says it has long been the case that workplace materials should be made available in formats suitable for the disabled, including the learning-disabled. Most employers get the concept of reasonable accommodation, says Seale. Translating that into action is sometimes problematic, and that’s where standards like this one step in. They tell employers and training agencies what they should do.

Acceptable alternative communication formats for persons with disabilities are listed in an appendix to the information and communications standard. Formats include Braille, e-text, audio, video, captioned video, sign language and many others. These are the provisions that have provoked fear or ridicule from critics, but supporters say these concerns are unfounded.

“A big misconception is that everything has to be ready all at once, up front,” says Diane Wagner, “that you have to convert everything into Braille, everything into every format.”  That’s not the case. Employers will have to determine first if they need to convert information, what information needs to be converted, and what format is most appropriate.

Two workers of the same age and background, with identical disabilities, will not have the same accommodation needs, says Bob Santos, CEO of Link Up Employment Services for Persons with Disabilities, headquartered in Toronto. Quite likely, the degree of accommodation required will be far less than the employer initially suspected. 

Safety is a legitimate exception to reasonable accommodation. The communications standard won’t require employers to offer forklift training to blind workers. But employers will not be permitted to deny an opportunity to an employee solely on the argument that a learning disability prevents effective communication of safety information, says Diane Wagner. If an employer plans to make that argument, the employer had better be prepared to prove that considerable efforts were made to accommodate the worker, and that those efforts failed.

“You can’t say, ‘he can’t read the health and safety manual so he can’t get the job,’” says Wagner.

What the standard should do is compel employers and training delivery agencies to review how they deliver safety training in order to make it more broadly accessible, says Bob Santos. His organization delivers a program called SafeAbility, which offers safety training geared to the needs of persons with disabilities. It also offers a “train the trainer” program for employers and agencies that will be delivering services to workers with disabilities.

It is not a burdensome process, Santos assures. It requires a shift in thinking by the persons delivering the training or communicating the information, and more careful scrutiny of the media that carry the information. “It is simple enough and straightforward enough to be implemented in any place of employment, any community, anywhere in the world.” It is more expensive, he says, but not much more, and certainly not enough to bar its introduction where needed.

Cost alone is seldom a sufficient argument against reasonable accommodation, says Donna Seale. To prevail, the cost would have to threaten the viability of the business, she says.

It’s quite possible that there are more learning-disabled people in the workforce than employers suspect. Margaret Eaton, president of the literacy organization ABC Canada, says learning disability often manifests as poor literacy, and those workers have naturally gravitated toward the manufacturing and resource sectors, where literacy skills are not in as high demand. The shame felt by poorly-literate workers often leads them to conceal their status, she says.

But the decline in the manufacturing sector, coupled with greater recognition of learning disability in the education systems, means that more and more learning-disabled workers will be seeking employment in positions they can safely perform, provided training and safety information is delivered to them in a format other than a hard-copy manual.

“[Learning-disabled] students that are coming up through the school system are used to using assistive technologies,” says Diane Wagner, referring to some of the accommodations referenced in the information and communications standard. Margaret Eaton says the previous generation of workers would have been reluctant to declare a learning disability and ask for accommodation. For the generation entering the workforce, it will be the norm.

Often, says Donna Seale, employers look at accommodation as “something they have to endure,” when in fact the changes end up benefiting everyone in the workplace, not just those to whom they were initially directed. Ours is an aging workforce, she says.  Accommodations made for visually impaired workers or learning-disabled workers may also prove to be great benefits to older workers or others, she says.

Bob Santos likes to cite the example of the automated door-opening device found in contemporary buildings. It’s activated by a push-button identified by a universal logo of a person in a wheelchair, but it is far more often used by able-bodied people, he says. The same should happen with training, as sensitivity to the needs of persons with a wide range of disabilities may improve the standard of training delivery for everyone.

Having a process AND following it key to meeting duty to accommodate

In the course I teach for the Manitoba Human Rights Commission on "The Duty to Accommodate in the Workplace", I spend a good chunk of time talking about how important it is for employers to implement a policy/process in their workplaces establishing how they will respond to requests for accommodation by employees.  In particular, I talk about how critical it is for employers to be able to demonstrate, at the end of the day, that they have thoroughly examined and considered all of the possible ways that they can provide accommodation for an employee before they even think about jumping on the 'sorry we can't do this' band wagon.  In addition, I stress how critical it is for employers to understand that their duty to accommodate is separate and distinct from any determinations made about the employee by a third party such as an insurance provider.

The fact is, if you do not have a process in place to reasonably assess accommodation requests, you will not successfully defend against a human rights complaint alleging a failure of the duty to accommodate.  Same goes if you have a process in place and then choose, for whatever reason, not to follow it.  Ditto if you choose to simply follow on the coat tails of a third party payer to decide how you should go about accommodating your employee.  Unfortunately, there are still a lot of employers out there who are not getting these messages.  Case in point, Jodoin v. City of Calgary, a November 2008 decision of the Human Rights Panel of Alberta. 

The facts in brief

Mr. Jodoin began working for the City of Calgary in 1999.  In September 2002, while he was working in the waste and recycling department as a driver/labourer, he injured his lower back.  He subsequently made a successful claim for workers' compensation benefits.  From September 2002 to February 2003, Mr. Jodoin underwent a number of medical tests and was determined by his physician to be unfit for work during this time.  In early February 2003, he underwent spinal decompression surgery.  It wasn't until June 2003 that Mr. Jodoin's doctor recommended a gradual return-to-work.  His return was not successful, though, as the job he was placed in was too strenuous.  He went off work again to undergo further testing and obtain an accurate assessment of the impact of his disability. 

In March 2004, it was determined that Mr. Jodoin's condition was such that he would only be able to do sedentary work in the future.  One of Mr. Jodoin's specialists sent the City a list of Mr. Jodoin's work restrictions and asked for the City to determine whether it could accommodate him in a permanently modified or other suitable alternate position.

The City began using the work restrictions identified by Mr. Jodoin's doctor in order to attempt to find long term accommodation for him.  In the meantime, the Worker's Compensation Board, which was also involved, determined that it was not satisfied that Mr. Jodoin could only do sedentary work and, instead, came to the conclusion that he ought to be able to perform work that simply did not require heavy lifting.  As a result of the WCB re-assessment of Mr. Jodoin's work abilities, the City changed his restrictions from sedentary to medium-type work.  The City sent out some e-mails to supervisors in Mr. Jodoin's department and to human resources and return-to-work coordinators requesting accommodation for him.  No potential jobs were uncovered.

WCB subsequently determined that Mr. Jodoin was not participating sufficiently in their job search program and, as a result, terminated his re-employment assistance benefits.  The City then sent him a letter indicating that his benefits had been terminated by WCB for failing to cooperate in the rehabilitative process.   The City further advised Mr. Jodoin that they were prepared to grant him an unpaid leave of absence for 30 days to rectify the situation with WCB.  Mr. Jodoin was instructed to complete a leave of absence form and return it within 7 days.  The City's letter went on to say that if Mr. Jodoin failed to return the form or be reinstated by WCB his employment would be terminated.

Although Mr. Jodoin asserted that he cooperated to the best of his abilities with WCB and he wrote a letter to the City setting this out, he received no response.  Mr. Jodoin did not sign the leave of absence form, believing that he was being "pushed out the door because he was sick."  The City subsequently wrote to Mr. Jodoin in July of 2004 advising him that they considered him to have "voluntarily resigned."

Decision

The Alberta Human Rights Panel determined that Mr. Jodoin did have a physical disability as defined by the Alberta human rights legislation and that the City was well aware of his disability. 

The City accepted that it had a duty to accommodate Mr. Jodoin but argued that it had provided that accommodation by making available to him four "safety nets" (Workers' Compensation Benefits, Long Term Disability, Supplementation of Compensation under the collective agreement, and the possibility of a Leave of Absence).  The Panel rejected this argument, pointing out that the availability of these types of benefits to employees did not necessarily bear on whether the employer had met its duty to accommodate. 

Contrary to the employer's contention, the Panel concluded that the City failed to make reasonable efforts to accommodate their employee for the following reasons:

1. Without consulting with Mr. Jodoin's doctors, the City accepted the WCB's assessment of Mr. Jodoin's work abilities.  The WCB assessment that Mr. Jodoin could perform work at a 'medium level' was diametrically opposed to the medical assessment that he could only perform sedentary work.  The Panel found that by accepting the WCB assessment and modifying Mr. Jodoin's work restrictions to reflect this acceptance, the City would have set him up for failure in any position that they might have found for him;
2. The City's search for permanent modified work for Mr. Jodoin was "limited and ineffective" because:

• the City sent e-mails on two occasions requesting possible accommodations to Mr. Jodoin's     current     department (Waste & Recycling), even though the City's representative indicated she seriously doubted his ability to return to work in that department;  
• with one exception, no record was kept of the positions that the City had actually considered and ultimately rejected as possible accommodations for Mr. Jodoin;
• the City's policy and procedural guidelines indicated that union involvement was required anytime an accommodation might engage the collective agreement.  Although the collective agreement was arguably engaged here, the union had never been approached by the employer.  While the City argued that Mr. Jodoin indicated he had no use for the union, the Panel pointed out that this had little relevance to the employer's responsibility to involve the union pursuant to its own process;
• the City's procedural guidelines mandated an open communication process.  However, the City was unable to show that it maintained regular contact or any semblance of open communication with Mr. Jodoin;
• the City's guidelines provided two checklists to assist in the accommodation process but the City's representative stated she followed the process "in her head" rather than either of the checklists as it would be too time consuming to complete the checklists on all of her files;
• all possible accommodations had not been pursued.  The City could not show that their search for modified work for Mr. Jodoin had been extended to City departments outside of Mr. Jodoin's union or corporate wide.

3.    Even though Mr. Jodoin was medically capable of working in a sedentary position, he was never given the option by the City of returning to work when WCB suspended his benefits.  Instead, he was offered a Leave of Absence to enable him to appeal that decision.  The Panel also pointed out that this "option" was given to Mr. Jodoin with no explanation and without advising him that they were not searching for a sedentary position for him;

4.    At no time did the City actually inform Mr. Jodoin that they could not find appropriate accommodation for his disability.  Instead, they threatened to terminate him if his WCB benefits were not reinstated of if he did not sign the Leave of Absence form.  The Panel stressed that because this was such a complicated employment situation, the City had a responsibility to meet with Mr. Jodoin and explain his options and any consequences associated with not signing the form, something it failed to do;

Finally, the Panel concluded that the CIty provided no evidence that it would have suffered undue hardship by continuing to employ Mr. Jodoin in a sedentary position.

Remedy

Finding that the City of Calgary failed to meet its duty to accommodate Mr. Jodoin, the Panel ordered that the City pay to him $5,000.00 in general damages and lost wages in the amount of $17,307.69 (less statutory deductions) plus interest.

What to take from this case:

• I'll end this post the same way I started it -- having a process and following it is absolutely essential if you, as an employer, hope to avoid liability in relation to the duty to accommodate; 
• Follow that process in each and every instance you are faced with needing to accommodate the human rights-protected needs of your employees; and
• Complete your process.  Do not stop looking for accommodation if WCB or another insurer or third party payer decides to terminate any benefits your employee might have been receiving relating to the accommodation need.  An employer's duty to accommodate operates independently and you'll be the one on the hook, not the insurer, if you choose to short-circuit that policy without appropriate justification.

  

 

Ontario Human Rights Commission updates Policy on Discrimination due to Pregnancy & Breastfeeding

The Ontario Human Rights Commission has released an update of its Policy on Discrimination Because of Pregnancy and Breastfeeding.  The update incorporates, among other things, new legal cases relating to pregnancy and pregnancy-related discrimination in employment, services and housing.  You'll see from the Table of Contents, that the Policy covers a lot of ground, including:

• Code Protections for Pregnancy and Breastfeeding
• Pregnancy and Intersecting Grounds under the Code (describes how a woman may experience discrimination due to pregnancy differently based on other aspects of her identity such as her age or ethnicity);
• Pregnancy and Family Status
• Pregnancy and Domestic Abuse
• Examples of Discrimination based on pregnancy and breastfeeding such as:
  • discrimination based on negative attitudes and stereotypes;
  • subtle discrimination;
  • harassment or poisoned environments;
  • systemic discrimination;
  • failure to accommodate
• Employment and Pregnancy
  • Pregnancy and pregnancy-related legislation and protections beyond the Human Rights Code;
  • Discrimination in hiring, promotions, transfers and terminations
  • The Duty to accommodate pregnancy and pregnancy-related characteristics

Although this is an Ontario-based policy, the concepts discussed have universal application.  As a result, I'd consider it recommended reading for all Canadian employers.

The danger of complacency: why regular harassment prevention training should be a no-brainer

After letting my blog take a back seat to the flurry of investigation and training work that's been requested of me since mid-April, I'm finally ready to get back to writing!  Truly thankful for the work but boy has it been busy!

For today's post I'm actually reflecting back on my recent investigations to discuss why it is so important for employers and their managers and supervisors to refrain from getting too comfortable with the way things appear to be going in their workplaces. 

I was recently called into a medium-sized workplace to investigate complaints of harassment that had been filed against an employee.  This workplace had in place a Respectful Workplace Policy that  prohibited discrimination, human rights-based harassment and personal harassment.  One of the questions I always ask when I interview employees and management involved either directly or indirectly in allegations of workplace harassment is whether they were aware of their company's policy and, if so, whether they had received training on the policy.  If I'm speaking with someone who has supervisory responsibilities, I will also ask whether they had ever received training on the very specific responsibilities of management to prevent and appropriately react to complaints of harassment.  And so, I asked these same questions in this most recent investigation.  Here are the responses I received:

• some of the employees had a vague idea that their workplace had a Respectful Workplace Policy but they had no idea what it said and had never received any training on the Policy.  Moreover, they had no idea how to go about filing a complaint under the Policy or otherwise having any concerns they might have about harassment addressed by their workplace;
• most of the managers knew about the Policy but the line managers had never received any training on the Policy.  Most of the managers did not have a clear idea as to the process mandated by their company for raising and addressing complaints of harassment. 
• the key line manager (the one who had direct authority over the employee accused of harassment) only had a vague understanding of his legal responsibilities as a supervisor to respond to and effectively address concerns about potentially harassing behavior in the workplace.  In response to the question of whether he had ever received any training specific to his legal responsibilities as a member of management, he indicated that training opportunities had been offered, on a voluntary basis, but he had never signed up to attend.  He had never been required to take such training by his employer.  More importantly from his perspective, though, was the fact that it never occurred to him that he needed such training until these complaints surfaced.  There had never been a complaint of harassment filed in his workplace before and he said it was such a great place to work he never thought he had to worry about harassment ever occurring there.

I'd like to say these types of responses to my questions were rare, but, unfortunately, I can't.  In fact, these answers are quite typical.  I have, quite honestly, yet to come into a workplace to conduct an investigation and found that there exists a regular and consistent education program to train employees about their anti-harassment/anti-discrimination policies.  Needless to say I think there's a pretty strong correlation between the absence of this type of training and the subsequent need to call me in to investigate formal complaints of harassment.

While a good many organizations I come into do have some basic training for their managers on their general human rights law obligations, these training courses are usually very rudimentary in nature.  Certainly, very few managers I've spoken to during an investigation disclose to me that they have anything but an extremely general understanding of what they are legally responsible to do if they learn about an issue of harassment in their workplaces.  And, often their understanding is limited to human rights-based harassment.  Even fewer know about personal harassment or they get the two confused.  And, even though these supervisors might have a general understanding of their legal obligation to prevent harassment in the workplace, they more often than not lack insight into how exactly they should go about putting those legal requirements into practical action.

So, why this pattern of a lack of training and education?  Well, I think the response of the manager in my most recent investigation goes to the heart of this -- why spend precious time, energy and money on learning how to prevent harassment in the workplace or on learning how to appropriately address it when it's easier just to believe it's never going to happen in the first place?  Thinking harassment (or at least an allegation of harassment) is never going to occur in your workplace is, well, silly.  I can point to oodles of requests for investigations and reams of legal decisions that suggest otherwise.  

And, thinking those in your workplace will never need training to know how to bring concerns of harassment to the attention of management or how to deal with harassment when it arises is an approach that clearly illustrates what is meant by the phrase "penny-wise and pound foolish."   The amount of time and money dedicated to an effective workplace harassment education and training program pales in comparison to what it will cost to hire someone external to do a proper investigation into a formal harassment complaint -- or, even worse, to hire a lawyer to have to defend you in a legal proceeding before a human rights commission, an arbitrator or the courts.  Complacency has no place here --really, honestly, truly.  Training from my perspective is a 'no-brainer' and a key to employers avoiding liability in the area of workplace harassment (which, as regular readers of this blog will know 'liability avoidance' is my mantra).  Here's what I think employers should be doing:

• train all new employees (whether they are part-timers, full-timers, casual, summer, etc. -- this means everyone who is new to your company) on what your workplace Anti-Harassment or Respectful Workplace Policy says.  Detail how they can help prevent harassment in the workplace.  Explain how they can bring concerns about harassment to the attention of someone in authority;
• on a regular basis (ideally this should be annually), remind all employees about your Policy and what it requires.  If your current employees haven't received training similar to that described above for new employees, make sure they get this training as well;
• all managers and supervisors should be required to attend training which outlines their specific responsibilities to prevent and address harassment in the workplace.  Refresher courses should be implemented at regular intervals;
• upper level executives/business owners should also receive training specific to understanding their role in preventing and addressing harassment. 

So, that's my two cents of advice to address a potential money pit of a problem. 

But what about you?  Does your workplace have regular harassment prevention training in place?  What does that training cover?  As always, I welcome your comments and/or feedback.

 

New drug testing publications of assistance to employers

Lately, I've been getting a number of inquiries about the legalities of drug testing in the workplace.  It's a 'hot issue', particularly in the last few years as some key cases have wound their way through the tribunals and courts.  Last month, I was also interviewed on CBC radio as a result of a post I did a few months back on the recent adoption of a drug testing policy by the BC construction industry.   The interview focused on what the legal concerns were about having employees submit to drug testing.

Recently, two Canadian human rights commissions have released guidelines relating to drug and alcohol testing in the workplace:

• the Manitoba Human Rights Commission's publication is called "Drug and Alcohol Testing in the Workplace: When you can test, What you must consider";
• the Alberta Human Rights & Citizenship Commission's information sheet is entitled "Drug and Alcohol Dependencies in Alberta Workplaces".

Both are very useful and current resources for employers (and employees or job applicants) to review and understand how Commissions are examining this issue.  It is, however, important to remember that the law relating to drug testing, in particular, is in an evolving state. 

Using social networking sites in hiring process: smart move or human rights trap? Part Three

Today marks our last installment in the series on whether employers should be using the Internet to screen job applicants.  (Well, at least it's my last post for now.  As I've mentioned before, this is an emerging area of the law so I'm sure there will be more to talk about down the road).  If you missed the first two posts of the series, you can check out Part One here and Part Two here.  I'd also urge you to read the comments posted by Dan Michaluk to Part Two (scroll down to the end of the post and click on "comments").  His comments aligned very well with my thoughts going into this post and they also prompted me to press my thinking further so I thank him for taking the time to contribute.

I'll be honest, when I was first asked by one of my readers about whether employers should be doing Internet-based or social networking-based searches in the recruitment process my initial response was to recommend the opposite of Nike's famous slogan and say "just don't do it".  Certainly, in Part Two, I set out a whole host of legal problems that can arise from doing Internet searches in the recruiting process so it would be completely reasonable to suggest you should avoid them like the plague -- at least until we have further direction from the law.  At this point in my thinking process, I still tend to sit closer to that side of the fence.

But, I also have to be pragmatic.  Given that there are employers in Canada already doing these searches (remember that 12% statistic we talked about in Part One), given this is a trend that will likely only increase as time goes on (as shown by what's already occurring in the US) and given that I know the lure of a quick Google search may be just too much for some of you to resist, let's move to looking at this issue from a practical perspective. 

If you think you might want to take a peek at what pops up on an Internet-based search of your job applicants, what are the things you should be thinking about in order to minimize your legal liability?

Here are my TOP EIGHT TIPS:

1.    Be Realistic

Before you embark on a Google or social networking site search, I think it's important for you to reflect on whether, given who you are as an employer and the nature of the job you are attempting to fill, you really need to conduct these types of searches in the first place.  If you're a mom and pop grocery store looking for a part-time bagger, your approach might be very different than, say, if you're the President of the United States looking to cull together your White House team. 

Going back to Part Two, you'll want to ask yourself whether a job candidate's online presence, whatever it may be, could somehow come into conflict with the job you are considering hiring them for.  If you can't connect the dots, you shouldn't be doing these types of searches. 

Remember: just because the information may be out there doesn't mean you need to access it.

2.     Maintain the Upside-Down Funnel

Remember in Part Two I talked about how it is always advisable to think of the the information-gathering process relating to your job recruits as an upside-down funnel.  You should be ensuring that you are only asking what you need to at each stage to determine whether your candidate moves forward.  Too much information too soon plus an adverse hiring decision will increase the chances you'll be faced with a discrimination claim.

With that in mind, it is my view that any Internet-based searches should be done after you have made your candidate a formal job offer. 

3.    Be Upfront

This point ties in closely with point #2.  I think you should be clear with all of your job applicants that if they reach the end of your recruitment process and are offered a job, you will be conducting a full background check.  You should indicate what that background check will consist of, including Internet-based searches. 

By disclosing this from the get-go you demonstrate that you're not doing anything "behind anyone's back", and you might even have job applicants who weed themselves out because of your disclosure.  That might be a good thing (if they, perhaps, have put something out on the web that might not make them a good fit for your organization) or not (you may get quality candidates who just aren't comfortable with employers who do these searches regardless of whether there is anything negative out there about them to find).

4.    Establish a written process

The saying "the best defence is a good offence" applies as equally to mitigating your legal risk as it does to the sports world.  By this I mean that it always helps to have a written document that you can point to in your defence against litigation setting out what you did and didn't do in relation to any particular process you adopt in your workplace.

Here, you'll want to give thought to setting down in writing the following:

a.    what Internet-based searches will be run;

b.    what information yielded by those searches will be examined and why;

c.    how you will assess what may be discovered;    

d.    what use will be made of that information;

e.    how you will document any information relied on for the purposes of the hiring decision.

You'll really want to give a lot of thought to developing your search criteria so you can show a human rights commission, tribunal or civil court that you weren't just going on a fishing expedition and that there are tangible job-related reasons why you conducted these searches in the first place.   Most importantly, from my perspective, you always want to be able to demonstrate that you only looked into what was needed to appropriately judge your job applicants on the basis of personal merit.  The more tightly honed your search criteria, the greater the likelihood that it might be found reasonable upon review.

In terms of record-keeping, as pointed out by Dan Michaluk in his comments to my Part Two post, you'll want to retain a hard copy of any information generated by Internet-based searches that meets your search criteria.  The hard copies should be placed on your recruitment file.  As Dan notes:

"This should keep the decision clean of irrelevant and risky information and should also eliminate any risks of getting into disputes about production of search-related forensic information."

5.    Have someone other than the decision-maker do the searches

To ensure that the person who is making the decisions as to who gets hired and who doesn't is only able to base the decision on the best (read: legally sound) and most relevant information it is advisable to insulate him or her from any Internet-based searches being done.  In other words, the decision-maker should never do the searches.  Keeping the decision-maker insulated in this fashion helps insulate the hiring decision from legal criticism.

Of course, you'll want to ensure that whoever does do the searches is fully apprised of your written process under point #4, and is clear on what they need to do to abide by the law when conducting the searches and determining what information should and shouldn't be passed onto the decision-maker. 

6.    Be Consistent

Ensure that you apply the Internet-based background checks equitably to all candidates to whom you've made a job offer.  If you don't, you might find yourself faced with a discrimination claim on that basis alone.  

Similarly, once you embark on doing these types of background searches either for all or just particular jobs in your workplace (again, keep in mind point #1 above), then do them consistently.  If you do them some times and not others, it begs the question why.  And a human rights commission may well be interested in finding out.

7.    Be as fair as possible

I think it would bode well for an employer to give job candidates the opportunity to respond to any concerning information generated by the Internet-based background check.  Given the concerns I raised in Part Two about ensuring the accuracy of information gathered on an Internet-based search, it seems to me that this would not only be fair but a wise approach as well. 

8.    Document the decision

Once the Internet-based searches are completed and any pertinent information given to the decision-maker in your organization, ultimately, the final decision on hiring should be set out somewhere in clear terms.  Explain your rationale for choosing a particular candidate, rejecting another.  You want to be prepared to establish why you made the decision(s) you did and to show that inappropriate considerations, specifically prohibited grounds under human rights legislation, played no factor.

Parting Thoughts

While I started this series of posts in response to a question from a reader, in the end, my purpose turned out to be much broader than that (if the length of my posts didn't tip you off to that before, now you know!).  Once I started looking into this issue and learned that there were Canadian employers out there already doing these types of searches, it became concerning to me that they may well be doing them without fully understanding their legal risks.

I hope that I have been able to arm you with information so you know what the issues are (at least as they appear to be at this early stage) and that I have spurred you to think about how to address them if you choose to make the decision to venture into conducting Internet-based searches on your job candidates.  At the very least, you should think first, do second and most importantly, do after you have received the appropriate legal advice specific to your situation.

Until next time!

 

 

 

Using social networking sites in the hiring process: smart move or human rights trap? Part Two

As I discussed in Part One of this series, there appears to be a growing desire amongst employers to conduct searches of social networking sites and on the Internet to find out information about potential job candidates prior to hiring them.  

In Part Two of this series, I'm going to discuss some of the legal risks associated with these types of online searches (human rights-related and otherwise).  I was also going to set out my thoughts about how to contain your legal liabilities in this post, but have decided to keep you in suspense until Part Three.

Risks abound: technology outpaces the law

The propriety of an employer using social networking sites or the Internet generally to recruit employees is very much an emerging legal issue. Innovations in technology, as a general rule, outpace the law (which in comparison can often develop at a snail's pace). In other words, the law is playing catch-up here.  Certainly, I am not aware of any Canadian human rights law cases addressing recruitment or hiring practices using web 2.0 technologies. Haven't yet come across a US case either. But, I'm sure it is only a matter of time before someone somewhere addresses this issue in a more formal legal context.

As a result, if you are an employer currently using these types of searches for whatever purpose in the recruitment of employees or you are thinking of doing them, you need to know that you're in a relative legal no man's land, so to speak, at the moment. We have no case law precedents specifically on point to draw from. This means that you are taking uncertain legal risks venturing into such a practice.

Potential legal and related issues

Ok, so there are risks. But life is full of risks, right? True, but if I'm going to take a risk I like to understand what the downsides, in particular, might be. We might not have case law specific to the kinds of situations I've been talking about so far but that doesn't mean you can't extrapolate. 

So, here are my thoughts as to the potential legal and other issues relating to vetting through social networking sites in the hunt for a hire. By no means am I suggesting that this is an exhaustive list; these are just the issues that easily come to mind (mine at least).  And, remember, though, these are just my general thoughts, not legal advice. If you want to know whether you should be doing online searches or not, you should speak to your lawyer.

1. The Big Hurdle to Overcome: Human Rights Legislation

In my view, and this isn't just a professional bias because of the work I do but just a simple fact, the biggest legal "obstacle" in the way of an employer proceeding full steam ahead with online searches of job applicants or candidates is human rights legislation.  

a. Job Applicants are Protected

Job applicants are protected by human rights legislation across Canada. So whether we're talking about people who have sought you out for a job (in response to an ad or otherwise) or you've sought them out, you have to be careful about violating human rights law.

b. The hiring process should work like an upside-down funnel

When we come at the hiring process from a human rights perspective, you should think of it as an upside-down funnel.  Because asking for information or documentation that may include details of a person's protected characteristics can lead to the appearance of discrimination, particularly if you decide not to hire the person after obtaining that information, you should ensure you are asking only that which you need to at each stage to determine whether the candidate moves forward in the process. 

The further you get into the process, the more information you are likely to be seeking and the greater the potential for disclosure of a person's protected characteristics.  So long as you ensure the questions you are asking always relate back to the person's ability to do the job, the liklihood of a discriminatory inference being made from a decision not to hire the person is contained.  At the actual job offer stage, you may even be able to ask employment-related questions that do inadvertently expose a person's protected characteristics (such as the existence of a disability that may impact their ability to do the job brought forward from a medical examination) so long as the offer has been made and the person has accepted the offer is being made on the condition that a satisfactory response to the request for the information is required and received.

c. Doing online searches can turn the funnel right-side up 

As I noted in Part One's post, once you are able to tap into a person's online social network, you can glean a lot of personal information about them. A basic Internet search can enable that to happen as well. For example, you could discover a job candidate's personal blog where they discuss a whole range of personal information.  Once you get into the personal information sphere, you naturally get into the potential disclosure of characteristics of that person which may be protected under human rights legislation.

The danger of doing a web-based search on a job applicant or candidate too early in the hiring process is that such an action turns that funnel I talked about above right-side up -- which, while far more helpful if you happened to be using the funnel in the kitchen, it's not so good in connection with human rights law. Now you potentially become aware of a person's protected characteristics far earlier in the process than you would otherwise if the web-based search is removed from the equation.  That greatly increases an employer's vulnerability to a successful human rights complaint being made against them should they make an adverse hiring decision after locating that information.

Beyond that, much of the information that you can dig up on an Internet or social networking site search is not necessarily job-related.  If we return to the offline world for a moment, employers are always best advised to only ask questions on job applications and in interviews that go to assessing the person's merits to do the job. In other words, seeking information that goes to determining the person's job-related qualifications.  By following this approach, employers can avoid claims that they made an adverse hiring decision on the basis of a person's protected characteristics.  By doing an online search on a job candidate, an employer is potentially exposing itself to the very information it is wisely advised to avoid in offline world. 

So, here's something you'll want to ask yourself before making the decision to do an online search: If you should be avoiding asking for particular types of information during the hiring process, should you really be taking an alternative path that would very likely lead you to that very information in other ways, whether directly or indirectly?

d. Doing online searches can lead to bias creep

I would think most employers and recruiters know that, legally, they are not to weed out candidates from the hiring pool on the basis of protected characteristics.

But, what the law says and what we think and feel are sometimes two very different things.  All of us have biases of some sort or another.  Many people also operate on the basis of stereotypical notions of others.  Can you honestly say that if you come into possession of information in the early stages of the hiring process that hits upon your internal biases and which may just happen to be connected to a person's protected characteristics that you will set that bias creep aside?  Or would you just simply not call that applicant in for an interview?  No harm, no foul right?

It's important here to remember that a person who claims they have been discriminated against does not have to show that their race, for example, was the only reason they weren't hired for a job.  They only have to show it was a factor.  See more on this below. 

e. Doing online searches complicates an employer's legal defence

Even if you aren't conducting your searches with the express purpose of weeding out candidates from groups who are protected under human rights legislation, the minute you come into possession of that information and then make a decision not to hire someone you can find yourself smack dab in the middle of a discrimination claim. And, the tricky part here for employers is that once they have that "off limits" information in their possession even if they ignored it completely, it would be relatively simple for a complainant to prove a prima facie case of discrimination. Recall, above, when I noted that a complainant only has to show that their protected characteristics may have been a factor in the decision not to hire them.  

The employer would then face what is called a reverse onus situation. In other words, they would have to prove that this information did not enter into their decision-making process. It is never easy in the legal context to prove a negative.  It's like trying to swim upstream with your hands tied behind your back.

f. Online searches - no one will know anyway, right?

In response to all of my negativity you might be saying -- well, who the heck is going to find out if I do a quick Google search or check out the person's blog or Facebook page anyway?

Ah, the good old days when e-discovery was a word and a legal concept yet to be created.  And, when blogs didn't exist.

I'm not going to get too technical here, but suffice it to say that once you get yourself into any form of litigation (and a human rights complaint would qualify as that), you can be requested to produce records relating to your hiring processes.  That would include electronic searches.  Good complainant(or Human Rights Commission) counsel will know what they need to ask for to get at what you've been up to.  Beyond that, blogging platforms allow blog users to track visitors.  It may take some time to figure it out, but eventually it can be discovered if someone from your organization happened to stop by that candidate's blog where they shared to the world their stories about struggling with multiple sclerosis. Maybe it turned out you didn't like the type of font they were using and stopped reading at that point.  But, then again, maybe the disability had something to do with the candidate's rejection too.

g. Online searches & human rights - maybe it's best not to jump the hurdle

In the case of what information about a job candidate might be lurking on social networking sites or the Internet generally, ignorance might just be bliss for employers.  If you don't know what's out there and can legitimately say you didn't look, you've placed yourself in a far better position than if you did take a peek if you find yourself having to defend against a human rights complaint stemming from the recruitment/hiring process.

But, does it make a difference if you do these types of searches at a later stage of the hiring process?In other words, when you're at the bottom of that upside-down funnel?  For my thoughts on that question, you'll have to keep reading.

2. Collection of personal information and privacy-related issues

In Part One I alluded to the fact that my general sense of people's use of social networking sites is that they do not consider what they are disclosing to their friends and networks on these sites as public in nature. So, that begs the question, if you, as an employer, are tapping into that information or otherwise searching a job candidate on the Internet, are you breaching their privacy rights or some other legal right relating to the collection of their personal information?

Is doing a social networking-type search on job candidates effectively the same as "going into somebody's house and searching through their cupboards?"

I think the answer to this question is, "it depends".  (Don't you love it when lawyers answer this way?)  What I mean is that it depends what it is you are looking at when you're doing your online searches.  For a much better answer to this question, I turn to Canadian privacy law expert David Fraser

who also authors the Canadian Privacy Law Blog.  In this helpful powerpoint presentation on Privacy and the Workplace which he prepared (see pages 23 on), David indicates that "reviewing employee blogs and Facebook pages is a collection of personal information." But, reading a person's blog would not be considered an unreasonable invasion of privacy because a blog is publicly accessible.  On the other hand, with someone's Facebook entries, there may be a reasonable expectation of privacy if they have limited who has access to their profile.

So, how do you deal with this?  As Toronto information and privacy lawyer Dan Michaluk points out in his post on the Law and Ethics of Recruiting in Today's Wired World, authorization, accuracy, openness and necessity should be key aspects of the gathering of personal information during the recruitment process. In particular:

"I urged the participants to consider what reasonable steps a recruiter should take to ensure the accuracy of personal information collected from online sources and used in making recruiting decisions. I also suggested that the openness requirement demands that candidates know that their publicly available information may be collected in the recruiting process.....Applying the necessity principle to the online search issue, it seems to me that such a recruiting tactic can only be justified where the job raises a reasonable possibility of conflict between an employee's online presence and his or her job duties."

I'm definitely with Dan when he suggests that if employers are going to embark on online searches of candidates that they make full disclosure of such a practice.

Regarding Dan's comment about ensuring the accuracy of the information you might gather in your Internet search, I think this is particularly critical and concerning from my point of view. I think you need to question what weight you can actually place on the information you find when you do these types of searches on job candidates:

• Was the information placed by the candidate on whatever site you may happen to be looking at? Or, was it placed by a disgruntled former friend or colleague? Or just someone 'having fun' at their friend's expense?
• Is that photo you're looking at something the person uploaded or were they 'tagged' by someone else? [For the uninitiated, people can upload photos that you are in and tag it with your name/profile, even including comments about you as you appear in the photo. The photo would then show up in connection with your profile information whether you wanted it there or not. Facebook, so I understand, does allow you to un-tag yourself from photos you don't want to show up on your profile.  I'm not sure about other sites.].
• When were the photos taken? Were they altered in any way?  Altering photos in our digital world is easier than ever.
• Are you looking at the profile of the right "Jane Smith" who applied for the job or is this another "Jane Smith"? 
• Consider this wiki entry on "Digital Dopplegangers" flowing from Matthew Fraser's book Throwing Sheep in the Boardroom if you really want to get an idea of how mistaken identity on the Internet can and does happen. (Hat tip: Simon Chester's post on Slaw)  

    
3. Due Diligence issues 

Is it fair for employers to look up this information on job candidates?  Should it be considered part of an employer's due diligence in hiring the right employees for its business? 

Going back to Dan's post, he suggests that it is fair and appropriate, in some circumstances, for an employer to gather information about a candidates' online presence.  In particular, when a candidate's online presence may come into conflict with the fulfillment of his or her job duties.  Dan does suggest that conducting the online search in these circumstances is likely best done during the background check phase of the hiring process. By this I assume he means after a formal job offer has been made which is conditional on the return of a clean background check.  Placing the possibility of an online search into this stage of the hiring process does seem to accord better with my upside-down funnel theory of information collection that is most respectful of human rights principles.  But, does that mean the searches would be ok?

Garry Wise, a Toronto employment lawyer and writer of the always interesting Wise Law Blog, suggests otherwise. In Garry's view, these types of Internet searches are inappropriate:

"It sheds no light at all on job-worthiness or skill sets. It leaves employers highly vulnerable to accusations and inferences of discriminatory hiring practices. It is unlikely to yield any measurable improvement in workplace productivity.....Beyond that, this form of online corporate stalking probably favours only those candidates who are smart (or sneaky) enough to cover their tracks by deleting all the 'interesting' stuff, while also being reckless enough that they don't bother to adjust their Facebook privacy levels to restrict uninvited access while they are job-hunting."

For my part, any time I see an employer make a move that could lead them to gather information that might be used or might be seen to be used for discriminatory purposes, I get the heebee-geebees.  So whether the employer is doing online searching at the front end or at the back end of the recruitment process, I still question whether the risks outweigh the gains even in light of Dan's concerns.  Is leaving such a search to the background check stage, as broad as a background check can often be, sufficient to insulate an employer from human rights liability?  Is there a balance that can be found?  

The other question that I have is even if you do these searches at the conditional job offer stage, how exactly do you go about evaluating what it is you find on a consistent basis?  

4. Managing your searches

Anyone involved on the recruiting side of the recruitment process knows that they should be maintaining thorough records of their hunt for their ideal hire.  So, that begs the question that if you do make a foray into the online searching of job candidates, how do you maintain an accurate record of those searches?

This thought was also addressed in Dan Michaluk's post, mentioned above:

"The idea of Google searching candidates also raises difficult records management issues.  A defendant in a hiring dispute wants to be able to say, 'Everything we considered is in the file.'  Add an Internet search into the assessment process and, unless there is a rigorously-enforced and forensically sound protocol for recording the search on the formal record, the electronic discovery burden of defending a hiring dispute will be relatively significant."

So, while it may sound easy to just get on the computer and find out what you can about your job candidates, keeping track of what you've done is a whole other ball game.  One that can be very time consuming and expensive.

5. Potential breach of user agreements

I haven't looked into this issue to any particular degree, but when you sign up as a user of social networking sites you generally have to agree to accept the site's Terms of Use.  You know, those long documents written by lawyers that you scroll through on your computer screen without reading just to get bottom of the page to click "I agree" so you can get going?

Usually these Terms of Use agreements make reference to the fact that as a user you are not to be using the site for commercial purposes.  If you're an employer who has become a user for the express purposes of researching job candidates, you might be breaching these provisions.

There are likely other terms of these agreements that an employer might be in violation of if they choose to use them for background searching, etc.  In other words, you have to be careful.  Just because information may be out there doesn't mean you can use it in the way you wish to.

Parting Thoughts on the Legal Issues

As you can see, there are a number of legal issues you need to consider before embarking on a social networking or online search of a job candidate.  And, as I noted above, these may not be the only ones these are just the ones that seem most obvious from my perspective.  Right now, it is anyone's guess how the courts or tribunals will respond to claims that may be made in the future against employers for conducting these kinds of searches in the hiring process.

The question that's key for you is this:  do you feel the risks of doing social networking and other online searches outweigh the benefits or is it the other way around?  Just because the information may be out there, should you access it?

Still Ahead....Part Three

In Part Three of this series, I'll move from the legal to the practical and set out my thoughts about what, as an employer, you should or should not be doing when it comes to using social networking sites and other online searches in the hiring process.

Between now and then, if you have any thoughts or comments, please let me know.

Using social networking sites in the hiring process: smart move or human rights trap? - Part One

Are you or the organization you work for using or thinking of using social networking sites (such as Facebook or MySpace) or otherwise looking into a potential employee's online presence (Google search, here we come) as a way to recruit the best and the brightest? 

If so, as you'll see below, you're not alone.  But, is leveraging the Internet to find your ideal employee a smart move that saves time and money or is it a human rights trap?  For that matter, are these types of searches just generally more of a legal headache than they're worth?

One of my terrific readers asked me to weigh in on this interesting issue.  And so, today is the first installment in a two-part series where I attempt to tackle it.  I'm not the first to discuss this subject (do a Google search on this topic and you'll find a huge number of news articles and blogs that have covered it, typically American) and I certainly won't be the last.  But, as usual, I'm going to try to look at things from a Canadian human rights law perspective.  Please remember though, my comments are general in nature and should not be taken as legal advice for your particular situation.

In today's post, I'm going to discuss how social networking sites fit within the current recruitment landscape.  

What are Social Networking sites?

Social networking sites are online communites that enable people with shared interests to communicate through a variety of networks.  The sites that I think most people are familiar with or have at least heard of are MySpace, Facebook and LinkedIn.

You gain entry into the sites by signing up and creating a user profile.  Once access is gained to the site, you can then look for people you know.  When you establish a connection with someone, whomever is in that person's network can now see your connection with the person.  On the flip side, you can also see who that person is connected to.

In addition, once you have access to the site you can share photos, videos, comments and more with those you are connected to.  Sharing in this way is easy because you post something once and everyone who you wish to see or access that information can now do so.

Why is there an interest in using Social Networking Sites to Recruit?

Employers seeking to find high quality candidates for job openings know they need to go where those potential candidates are.  And, statistics show that membership in social networking sites is growing exponentially.  For instance:

• LinkedIn has a user base of 30 million professionals world-wide;
• Facebook has more than 150 million active users world-wide; 
• MySpace has 110 million users world-wide. 

For further statistical information on the use of a wide variety of social networking sites, check out this helpful post from the blog Web Strategy by Jeremiah.

Ways Employers are Using Social Networking Sites to Recruit

It appears that employers are using social networking sites in the recruitment process in three ways:

1. to post ads for job openings or to create recruitment-oriented pages;
2. to search for potential job candidates using specific key word searches; and 
3. to screen job applicants by reviewing their social networking information to determine their 'fit' within the organization. 

The first two ways relate to the finding of employees, one obviously being more active than the other. The third way relates to the weeding out of candidates through the discovery of information that doesn't sit well with the employer.  This weeding out phase can presumably at any stage of the recruitment or hiring process: on receipt of a resume, before the interview stage, after the interview stage or subsequent to a conditional job offer being made, with the condition being a clean background check.

Trends

Studies in both Canada and the US indicate that scouring the Internet for information about job candidates is a growing trend:

• Careerbuilder.ca released a survey in December 2008 of 286 hiring managers and human resource professionals in Canada.  The survey indicated employers are looking to use the Internet as a vehicle for finding potential employees.  In particular, 9% were planning to increase spending on recruitment through the use of social networking sites; 
• earlier in 2008, a Careerbuilder.ca survey noted that 12% of Canadian employers were already screening candidates via the Internet on a regular basis while 19% planned to begin using these resources for the same purpose that year; 
• a June 2008 survey of 3,169 hiring managers and human resource professionals in the US indicated that 1 in 5 use social networking sites to research job candidates.  34% found information during their searches that lead them to reject a potential candidate from the selection process.  

Over time, I suspect that the desire to conduct Internet and social networking site searches will only increase as younger recruiters come into the workplace who are very much used to engaging in social networking activity.  Beyond that, they are already 'in the network' to enable access to information employers might be interested in seeking.

What can an employer find out?

The sky appears to be the limit here.  Many social networking sites have fill-in type forms that ask for a whole host of personal information.  Others give you options on what information you wish to make public.

But, just as an example, from my recent foray into Facebook, I could easily have disclosed my sex, age, marital status, sexual orientation, religion and political affiliation without even venturing further than filling out a basic profile.  Once I upload my photo, you can now see my ethnicity and, if I didn't disclose it in my profile beforehand, my sex is obviously apparent.  If I take a step further and upload some photos of my family, now you know I'm married (if I didn't disclose it before) and that I have two children.  So, voila, without thinking much about it, I've disclosed information relating to the protected characteristics set out in most human rights legislation across Canada. 

There is more, though.  Many people don't consider what they say on social networking sites to be 'public' in nature (especially when we're talking about MySpace or Facebook and other more informal sites).  Instead, they see it as a forum to connect with friends.  So, the conversations and disclosures run the gambit. As do the photos and videos. This includes information that may expose potential disabilities such as addictions or physical or mental conditions that people may be contending with and 'talking out loud' about.  More potential protected characteristics.

Just as a general observation -- and this is very general -- my experience being involved in social networking sites so far is that younger users of these sites seem less inclined to compartmentalize their lives into 'public' or 'private', 'online' or 'offline'.  They just 'are' because they've grown up with this stuff.  With that comes postings which might seem, to those who have less or no involvement in using social networking sites, extraordinary or inappropriate.

People who are members on these sites usually do have access to privacy features that limit who can become their 'friend' or a member of their network, and thus, limits who has access to their personal information.  But, there may be those who either aren't aware of or do not know how to access those privacy features.  Others still may choose to ignore those features completely, primarily so their friends can find and connect with them easily.  And, again, you have the prevalent thought that whatever people say or show on these sites is not public in nature.  

But, tell that to a potential employer who hits proverbial pay dirt (positive or negative) when they find you on one of them.

Conclusion - Part One

So that is how the searching of social networking sites and the Internet generally appears to fit within the initiatives taken by employers to recruit what they believe to be the best employees.

Next up, in Part Two, I'm going to discuss the potential legal issues involved in doing these searches and in Part Three I'll talk about ways that may assist in avoiding legal liability.

As always, I'm interested to hear your comments.