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Hiring

Advertising
What are the requirements relating to advertising open positions?

Job advertisements should comply with human rights legislation and generally should not contain statements, qualifications, or references that directly or indirectly relate to protected grounds.

Background checks
What can employers do with regard to background checks and inquiries?

(a) Criminal records and arrests

With consent, employers can perform background checks on employees’ criminal records. However, employers may be vulnerable to challenges if a candidate is denied a job because of a criminal record which is unrelated to the position for which he or she applied.

(b) Medical history

Generally, medical history should not be considered in the hiring process, except where there is a bona fide occupational requirement. Pre-employment medical testing or medical history can be requested after a conditional offer of employment has been extended, if it can be shown that this information is directly relevant to the position.

(c) Drug screening

Drug and alcohol testing is a contentious issue in Canada because addiction is seen as a disability under human rights law, and because it has been held that drug testing does not actually determine whether an employee is impaired while at work. This has led to seemingly conflicting lines of case law, one from Ontario and the other from Alberta. The federal and Ontario approach is that, in general terms, testing is inherently discriminatory under human rights law.

In Alberta, pre-employment drug testing can be done for safety-sensitive positions if the candidate is made aware of the testing and subject to a strict testing regime. This is because the Alberta courts have found that health and safety is more critical than human rights issues, although if a candidate who tests positive proves a dependency, the employer may have a duty to accommodate him or her.

Further, when employees must work part of the time in the United States (e.g., inter-provincial truckers) and drug screening is a requirement under US state law, that requirement may be found to support an employer’s position that drug testing is a bona fide occupational requirement that should be permitted notwithstanding general human rights and privacy concerns.

(d) Credit checks

The Alberta privacy commissioner has ruled that employers are permitted to collect only personal information that is specific to the requirements of the position to be filled from prospective employees. Credit checks for employees as part of a routine background check process are not recommended in Alberta.

Federally regulated employers are governed by the Personal Information Protection and Electronic Documents Act and are permitted to request credit checks only where it is reasonable to do so.

(e) Immigration status

Employers may require proof of legal ability to work in Canada as a condition of employment, but are prohibited under human rights legislation from inquiring into a prospective employee’s ancestry, citizenship, or national or ethnic origin.

(f) Social media

Social media checks during the pre-hiring stage increase the risk of a discrimination complaint, as a candidate’s social media profile may disclose information concerning a protected ground under human rights legislation.

Wage and hour

Pay
What are the main sources of wage and hour laws in your state?

The Alberta Employment Standards Code is the main source of wage and hour law.

For federally regulated businesses, Part III of the Canada Labor Code applies. 

What is the minimum hourly wage?

The minimum hourly wage in Alberta is C$11.20 for all employees.

What are the rules applicable to final pay and deductions from wages?

Provincial rules
Deductions from wages can be made where the law authorizes them or where an employee has provided written authorization. The amount to be deducted must be set out in the authorization or readily determinable by way of a formula. No amounts may be deducted in respect of employer losses due to faulty work, missing cash, or property losses if other persons had access to the lost cash or property.

Federal rules
Employers cannot make deductions from wages or other amounts due to an employee except under certain permitted instances, including:

  • payments authorized by a federal or provincial act or regulation;
  • deductions authorized by a court order or a collective agreement or other document signed by a trade union on behalf of an employee;
  • deductions authorized by the employee in writing; and
  • overpayments of wages by the employer.

Hours and overtime
What are the requirements for meal and rest breaks?

Provincial rules
A 30-minute unpaid rest period must be provided after five hours of work.

Federal rules
There are no prescribed rest periods for federally regulated employees. However, most employers follow provincial guidelines for safety and employee relations purposes.

What are the maximum hour rules?

Provincial rules
Employees cannot work more than 12 hours per day; special rules exist for certain industries (e.g., certain oil and gas businesses).

Federal rules
Employees cannot work more than 48 hours per week; special rules exist for certain industries (e.g., trucking, shipping, and railways)

How should overtime be calculated?

Provincial rules
Overtime is calculated as one and a half times the employee’s regular rate for all hours worked in excess of eight hours per day and 44 hours per week—whichever is greater; special rules exist for certain industries.

Federal rules
Overtime is calculated as one and a half times the employee’s regular rate for all hours worked in excess of eight hours per day or 40 hours per week—whichever is greater; special rules exist for certain industries.

What exemptions are there from overtime?

Provincial rules
The terms “exempt” and “non-exempt” are not used in Canada to differentiate between employees. In Alberta, employee entitlements to certain provisions under the Employment Standards Code (including hours of work and overtime) are generally determined based on whether the employee is considered to be in a managerial or supervisory role. However, special exemptions exist for some commissioned salespersons, professionals (e.g., lawyers, engineers, dentists, and architects), and information systems professionals.

The main managerial and supervisory exemption applies only if the employee performs non-managerial work incidentally. Below are some general factors that are considered in Alberta when assessing whether an employee’s work is managerial or supervisory in character (using a retail store environment as an example):

  • What percentage of time do managers perform the same work as sales associates?
  • How frequently do managers perform non-managerial work (e.g., do they perform the work of a sales associate every day or once a week)?
  • Do managers perform non-managerial work on a scheduled basis (e.g., during lunch)?
  • Do managers have no alternative but to perform non-managerial work?
  • Do managers perform non-managerial work only for unforeseen reasons (e.g., if sales associate calls in sick or there is an unexpected rush of customers)?
  • Do managers’ performance appraisals include an evaluation of non-managerial work?

Are managers performing their managerial role at the same time that they perform non-managerial work (e.g., the store manager may be on the floor for supervisory purposes, but will also assist customers if necessary)?

Federal rules
The Canada Labor Code states that the standard hours of work and overtime do not apply to employees who are managers or superintendents, exercise management functions, or are members of the architectural, dental, engineering, legal, or medical professions. The test for the managerial exemption is similar under federal law.

Record keeping
What payroll and payment records must be maintained?
 

Type of information Alberta retention period
Employee’s name, address, and the date on which he or she began employment Three years following the date the record is made
Employee’s date of birth, if the employee is a student under 18 years old Three years following the date the record is made
Number of hours the employee worked each day and each week, unless the employee is paid a salary and overtime provisions do not apply or any excess hours are recorded Three years following the date the record is made
Information contained in each written statement given to the employee in relation to wages, wages on termination, and vacation pay Three years following the date the record is made
Notices, certificates, correspondence, and other documents relating to employee leave (e.g., pregnancy, parental, emergency, family medical, or reservist) Three years following the date the record is made
Every agreement made permitting the employee to work excess hours

Three years after the last day on which work was performed under the agreement

Every overtime averaging agreement that the employer has made with the employee Three years after the last day on which work was performed under the agreement

Vacation time and vacation pay records, including the amount of:

  • vacation time earned but not taken since the start of employment (if any);
  • vacation time earned in the year;
  • vacation time taken in the year;
  • vacation time earned but not taken at the end of the year;
  • vacation pay paid out during the year (subject to certain exceptions); and
  • wages on which vacation pay was calculated and the applicable time period (subject to certain exceptions).
Three years following the date the record is made

There may be different record-keeping considerations for federally regulated businesses.

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