Issue link: https://digital.canadianlawyermag.com/i/55015
EMPLOYMENT LAW IN ATLANTIC CANADA E By Lisa Gallivan and Mark Tector mployment relationships in Atlantic Canada, like the rest of the country, are governed by both statute and common law. Each Atlantic province has its own statutes that govern both the unionized and non-unionized workplace. This article focuses primarily on issues relating to the non-unionized workplace and highlights some of the issues we fre- quently encounter. Unionized employers will be sub- ject to additional statutory requirements (most no- tably the provincial trade union act) and collective agreements. Hiring – The Do's and Don'ts of Recruiting Studies suggest that up to one third of job applicants misrepresent their credentials on applications and re- sumes. Employers should conduct thorough reference and background checks as holding particular qualifi- cations, training or licenses may be important to a job. It is reasonable to require proof of a key qualification. If qualifications will be verified, it is good practice to ensure that the candidate knows that copies of rel- evant documents will be held in his or her personnel file. Background investigations may also be neces- sary in certain circumstance (e.g., driver abstracts). This type of investigation may be useful in identify- ing safety risks and suitability for a particular pos- ition. When conducting a reference or background investigation, employers should be conscious of the risk of attracting a human rights complaint. 2 WINTER 2011 DOING BUSINESS IN ATLANTIC CANADA Each Atlantic province has its own human rights legislation that identifies specific protected grounds of discrimination (e.g., race, sex, age, etc.) All pro- vide protection against discrimination in hiring and during the course of employment. Some provinces provide specific protection against discriminatory advertising. However, all Atlantic provinces provide an exception to what would otherwise be a dis- criminatory practice when dealing with a bona fide occupational requirement. Because each province is slightly different, the legislation of the specific province should be con- sulted to ensure that human rights are not inad- vertently violated. For instance, in Nova Scotia and New Brunswick, there is no restriction in the pro- vincial human rights statute on performing crim- inal background checks. However, in Newfound- land and Labrador and Prince Edward Island, an employer cannot discriminate based on a criminal or summary conviction that is unrelated to the em- ployment or intended employment. This restriction would impact the ability to ask questions in the hiring process that directly or indirectly classify ap- plicants based on criminal or summary conviction, except where there is a bona fide occupational re- quirement. Provincial Employment Standards Statutes Each province also has employment standards legis- lation that establish minimum standards employers must meet.