Top 5 Employment Law Cases of 2018

2018 was a whirlwind of statutory changes in the employment law world, which has perhaps overshadowed the judicial developments that have taken place in courts. In today’s post, we turn to all things case law and give our picks for the top 5 employment law cases of 2018.

  1. Amberber v. IBM Canada Ltd., 2018 ONCA 571

This one is likely to make most employment lawyers top cases of 2018 lists. We all love a good termination clause case! The law on what makes a valid “without cause” termination clause seems to change like the weather, but Amberber gives us the latest. Bear with us, here is the clause in question:

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Even Robots are a Little Bit Racist: AI Bias in Recruitment

That’s right! Even robots. How would you like to perform only the most high-level and uniquely human elements of your job?  Are your skills really best utilized on data entry, rote memorization and pushing paper? Artificial Intelligence (AI) promises to delegate all the drudgery of your job to machines while freeing you up to mingle with clients on the golf course and answer phone calls from your private yacht in the Adriatic Sea.

It almost sounds too good to be true.  But are machines really up to the task?

One industry that has highly leveraged AI is recruitment.  As we have previously written about here, the task of sifting through hundreds or thousands of resumes is uniquely suited to machines.  An important feature of the application of AI to recruitment is reducing human bias in the selection of candidates.  But as we warned, an AI system is only as good as the data inputted into it – a critical point recently confronted by Amazon.

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To google or not to google? Candidate background checks

In the information age, it’s usually relatively easy to find out all about someone by doing a simple Google search. The burning question of online daters, “do I google my date before the date?” applies equally to employers. Can, and should, an employer background check a candidate? If so when? And how deep can and should they go?

Background checks are common and are becoming more so. Here is a run down of some best practices.

What is a background check?

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Equal Pay for Midwives

The Ontario Human Rights Tribunal (HRTO) released an interim decision on September 24, 2018 in the application of the Association of Ontario Midwives (AOM) and the Ontario Ministry of Health and Long-Term Care (MOH). The AOM brought an application to the HRTO alleging discrimination on the basis of gender in their compensation by the MOH.

Midwifery became publicly funded and regulated in Ontario in 1994. Almost all midwives in Ontario are women, they provide services to women and their realm is women’s health. The AOM describes these characteristics as a “gender trifecta” that makes the profession vulnerable. Midwives, as a group, are entitled to equal treatment, without discrimination on the basis of gender regarding how they are compensated by the MOH.

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Bill 164: Amendments to the Ontario Human Rights Code

Bill 164, introduced in October 2017, would expand the current prohibited grounds of discrimination under the Ontario Human Rights Code to include social condition, police records, genetic characteristics and immigration status. We are currently waiting on the Bill to pass, or not. It passed second reading and currently sits with the Standing Committee on Regulations and Private Bills. In its current form, the Bill would amend the Code to prohibit discrimination, or differential treatment on the basis of social condition, police records, genetic characteristics and immigration status. Presently, discrimination on these grounds is allowed in Ontario. Let’s take a look at what these proposed new grounds mean.

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Secret Recordings in the Workplace

Technology has impacted our privacy in a myriad of ways. One crafty use of technology that we see more and more in workplace disputes, is employee made audio recordings. Employees are turning on their voice memo apps before they go into important meetings and covertly recording their conversations. While undeniably an audio recording is great evidence of what was said, the practice raises concerns and questions.

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