Calgary Employment Lawyers Advising Employers on Hiring Practices

A well-planned hiring process helps Alberta employers identify the right candidate while reducing the risk of human rights complaints, privacy issues, contractual disputes and costly hiring mistakes.

Why Do Hiring Practices Matter?

An employer’s legal obligations begin before an employee’s first day of work. Human rights, privacy and employment law considerations can arise at any point in the hiring process, from drafting the job posting, all the way through the candidate’s acceptance of the offer. The considerations continue throughout the employment relationship.

Who Is Eligible to Apply for Employment?

Employers may establish legitimate qualifications for a position. Depending on the role, those requirements might include:

• Education;
• Professional credentials;
• Relevant experience;
• Technical skills;
• Availability;
• Ability to perform essential job duties;
• A valid driver’s licence where driving is required;
• Legal authorization to work in Canada; or
• Other genuine job-related qualifications.

Employers should distinguish between a qualification that is genuinely required and one that is simply preferred. Unnecessary requirements can exclude qualified candidates and, in some circumstances, create human rights concerns.

Can an Employer Require a Candidate to Be Legally Entitled to Work in Canada?

Yes. An employer can generally ask whether a candidate is legally entitled to work in Canada.

However, employers should avoid questions about matters such as:

• Where the candidate was born;
• Their ancestry;
• Their ethnic background; or
• Their place of origin.

The focus should remain on whether the candidate is legally authorized to perform the work.

What Rights Do Job Candidates Have During the Hiring Process?

Job candidates are protected by the Alberta Human Rights Act.

Employers cannot discriminate against applicants based on protected grounds when:

• Advertising a position;
• Accepting applications;
• Conducting interviews;
• Administering employment tests;
• Selecting candidates; or
• Deciding whom to hire.

An unsuccessful candidate may make a human rights complaint if they believe a protected ground affected the hiring decision.

For more information on employer obligations under human rights legislation from the hiring phase to the end of the employment relationship, see our page on Workplace Human Rights [link to page].

What Are an Employer’s Obligations During Hiring?

Employers should design the hiring process around legitimate job requirements. At each stage, ask: Does this information help us determine whether the candidate can perform the job?

If the answer is no, consider whether the information should be requested at all.

Employers should:

• Use clear and accurate job descriptions;
• Identify genuine essential duties;
• Use non-discriminatory job advertisements;
• Ask job-related interview questions;
• Apply consistent evaluation criteria;
• Consider accommodation requests;
• Collect only reasonable personal information;
• Conduct appropriate reference or background checks;
• Keep appropriate hiring records; and
• Use carefully drafted employment agreements.

Consistency is particularly important. A structured hiring process makes it easier to explain why one candidate was selected over another.

How Should Employers Draft Job Advertisements?

A job advertisement should describe the position, not the employer’s assumptions about the type of person who should fill it.

A posting may appropriately identify:

• Responsibilities;
• Required skills;
• Education;
• Professional qualifications;
• Relevant experience;
• Work location;
• Hours or scheduling requirements; and
• Genuine physical or other job requirements.

Avoid language that directly or indirectly suggests a preference based on a protected ground. For example, employers should be cautious about phrases such as:

• “Young and energetic”;
• “Recent graduate” where graduation date is not genuinely relevant;
• “Mature individual”;
• “Perfect for a stay-at-home mom”; or
• Requirements tied unnecessarily to gender, age, family status, place of origin, or any other protected ground.

What Questions Can Employers Ask During an Interview?

Interview questions should focus on:

• Skills;
• Experience;
• Qualifications;
• Work history;
• Ability to perform job duties;
• Job-related scenarios;
• Availability where legitimately relevant; and
• Behavioural or competency-based examples.

For example, an employer may ask:

“This position regularly requires evening shifts. Are you able to work the schedule described in the posting?”

That is more appropriate than asking:

“Do you have children who will prevent you from working evenings?”

The first question addresses the actual workplace requirement. The second raises family-status concerns.

What Interview Questions Should Employers Avoid?

Employers should generally avoid questions seeking information about protected characteristics unless the information relates to a genuine occupational requirement. Problematic questions may include questions about:

• Age or date of birth;
• Plans to have children;
• Pregnancy;
• Marital status;
• Childcare arrangements;
• Religious beliefs;
• Physical or mental health conditions;
• Disability;
• Previous sick leave;
• Workers’ compensation claims;
• Medications or treatment;
• Sexual orientation;
• Place of birth; or
• Ethnic or family background.

Should Employers Use the Same Interview Questions for Every Candidate?

A structured interview process is generally a best practice. Employers do not need to ask every candidate every word-for-word question, but the core evaluation criteria should be consistent.

Do Employers Have to Accommodate Candidates During Hiring?

Potentially, yes. The duty to accommodate can apply during the recruitment and selection process.

A candidate may require a change to:

• An interview format;
• A testing process;
• The physical interview location;
• Scheduling;
• Communication methods; or
• Another aspect of the hiring process.

Employers should consider reasonable accommodation requests connected to protected grounds. See our page on the Duty to Accommodate [link to page] for more information.

Can Employers Ask Candidates About Medical Conditions?

Generally, employers should not ask candidates broad questions about their health or medical history during the application or interview stage. Employers should focus on whether the candidate can perform the essential duties of the position.

Where a job-related medical assessment is genuinely necessary, it may be more appropriate to address that requirement after a conditional offer of employment is made.

Can Employers Conduct Reference Checks?

Yes. Reference checks can help verify:

• Employment history;
• Positions held;
• Responsibilities;
• Relevant experience;
• Performance;
• Reliability; and
• Other job-related information.

Employers should tell candidates when references will be contacted and ensure the information being collected is relevant to the hiring decision. Reference questions should remain focused on legitimate employment considerations. Avoid using a reference check to obtain personal information that would have been inappropriate to request directly from the candidate.

What About Criminal Record, Credit and Other Background Checks?

Background checks should not be automatic for every position. Before requiring a check, employers should ask:

• What information are we seeking?
• Why is it relevant to this particular job?
• Is the scope of the check proportionate to the role?
• Have we informed the candidate?
• Do we have the appropriate authority or consent?
• How will the information affect the hiring decision?
• How will the information be stored and protected?

For example, a credit check may potentially be relevant to a position involving significant financial responsibility but difficult to justify for a position with no financial duties.

Alberta’s privacy legislation requires private-sector and public-sector organizations to collect, use and disclose personal information only for reasonable purposes and limits collection to information that is reasonable for those purposes. 

What Privacy Obligations Apply During Recruitment?

Hiring often requires employers to collect significant personal information. Private-sector Alberta employers are generally subject to the Personal Information Protection Act (PIPA) and public-sector Alberta employers are generally subject to the Protection of Privacy Act (POPA).

Employers should collect only information reasonably required for the hiring process and protect it appropriately. This may include information contained in:

• Resumes;
• Applications;
• Interview notes;
• Reference checks;
• Testing results;
• Background checks; and
• Other recruitment records.

Employers should:

• Identify why information is being collected;
• Limit collection to reasonable purposes;
• Use the information for the purpose for which it was collected;
• Limit access;
• Store records securely; and
• Dispose of information appropriately when it is no longer required.

PIPA and POPA specifically regulate personal information relating to potential, current and former employees.[We will eventually add a Privacy in the Workplace page and link to it here]

Should Employers Check a Candidate’s Social Media?

Employers should exercise caution when it comes to checking a candidate’s social media. Publicly available information can still expose the employer to information it should not use in making a hiring decision. A social media search may reveal:

• Age;
• Disability;
• Religion;
• Family status;
• Pregnancy;
• Sexual orientation;
• Gender identity;
• Race or ethnicity; or
• Other protected personal characteristics.

Once an employer has that information, a rejected candidate may allege that it affected the decision.

If social media screening is used, employers should have a legitimate business reason, apply the process consistently, and focus only on information genuinely relevant to the position.

How Should Employers Select the Successful Candidate?

The hiring decision should be tied to the criteria established for the role. Document the principal reasons for the decision, such as:

• Relevant experience;
• Technical ability;
• Professional qualifications;
• Communication skills;
• Demonstrated competencies;
• Interview performance;
• Reference information; and
• Overall ability to meet the requirements of the position.

Avoid vague explanations such as:

• “Not a culture fit”;
• “Didn’t have the right energy”;
• “Too old-school”;
• “Might not fit with our young team”; or
• Other language that could conceal or suggest discriminatory considerations.

If fit matters, define what it means in job-related terms. For example:

• Collaboration;
• Communication;
• Accountability;
• Adaptability; or
• Client service.

When Should Employers Make a Conditional Offer?

A conditional offer can be useful where employment depends on requirements that should be verified before the candidate begins work.

Conditions might include:

• Satisfactory references;
• Verification of credentials;
• Proof of authorization to work in Canada;
• A reasonable and job-related background check;
• A driver’s abstract where driving is required;
• Professional licensing; or
• A job-related medical assessment where legally appropriate (this may include drug & alcohol testing in appropriate circumstances).

The conditions must be clearly stated.

Why Is the Employment Agreement So Important?

The hiring process is the employer’s best opportunity to put a clear written employment agreement in place. The agreement needs to be signed before the employee begins working. Contract formation and enforceability can become considerably more complicated once employment has already begun.

See our page on Employment Agreements [insert link] for more information.

Common Hiring Mistakes Employers Should Avoid

Problems frequently arise when employers rely on informal practices rather than a consistent hiring process. Common mistakes include:

• Using discriminatory language in job advertisements;
• Asking prohibited or inappropriate interview questions;
• Making assumptions about candidates based on age, family status, or another protected ground;
• Failing to accommodate candidates during recruitment;
• Collecting unnecessary personal information;
• Conducting indiscriminate background checks;
• Reviewing social media without a legitimate hiring purpose;
• Using inconsistent interview criteria;
• Allowing an employee to start before signing the employment agreement;
• Using outdated employment agreement templates; and
• Failing to document why the successful candidate was selected.

What Can Happen When Hiring Practices Go Wrong?

Poor hiring practices can create legal and practical consequences before employment even begins. Potential outcomes include:

• Human rights complaints by unsuccessful candidates;
• Privacy complaints relating to improper collection, use or disclosure of personal information;
• Disputes over the terms of employment;
• Difficulty enforcing an employment agreement;
• Reputational damage;
• Loss of strong candidates;
• Inconsistent or biased hiring decisions; and
• Increased termination costs if an unsuitable employee is hired under a poorly drafted contract.

A careful hiring process can reduce many of these risks before they arise.

What to Do Next: Build a Better Hiring Process

Alberta employers should consider the following steps:

• Define the job first. Identify essential duties and genuine qualifications before advertising.
• Review your job posting. Remove unnecessary requirements or language connected to protected grounds.
• Standardize interviews. Use consistent, job-related questions and evaluation criteria.
• Train interviewers. Make sure anyone involved in hiring understands human rights boundaries.
• Plan for accommodation. Be prepared to adjust recruitment processes where required.
• Limit personal information. Collect only what is reasonably necessary.
• Use targeted background checks. Match the check to the actual risks and responsibilities of the position.
• Document hiring decisions. Record legitimate reasons for selecting the successful candidate.
• Use conditional offers strategically. Complete necessary checks before employment begins.
• Put the employment agreement in place early. Have it reviewed and signed before the employee starts work on their first day.
• Review your templates regularly. Human rights, privacy and employment law requirements change quite often.
• Get legal advice before making a high-risk hiring decision.

Getz Collins and Associates: Advising Alberta Employers on Hiring Practices

Good hiring practices help employers do more than find qualified candidates. They can reduce human rights exposure, protect personal information, improve hiring decisions and establish clear employment terms from the beginning.

The employment lawyers at Getz Collins and Associates advise Alberta employers throughout the recruitment and hiring process.

We can assist employers with:

• Job descriptions and job postings;
• Application forms;
• Interview questions and hiring procedures;
• Human rights issues during recruitment;
• Accommodation requests from candidates;
• Reference and background-check practices;
• Privacy considerations;
• Conditional offers of employment;
• Employment agreements;
• Probationary clauses;
• Compensation and benefit terms; and
• Hiring policies and procedures.

Obtaining advice during the hiring process and before making an offer can help employers identify legal issues early and establish the employment relationship on clear terms.

From our Calgary office, Getz Collins and Associates advises employers throughout Alberta, including Calgary, Airdrie, Cochrane, Okotoks, Drumheller, Chestermere, Hussar and surrounding communities.

Call 587-391-5600 or contact us online to schedule a consultation with an employment lawyer.