Employment considerations
Things to know
- AI is being increasingly leveraged in the context of hiring and managing employees, giving rise to concerns about bias, transparency, explainability, accuracy and fairness. Human rights legislation can be critically important in the employment context (see the “human rights considerations” section of this guide for more information).
- Most Canadian workplaces are governed by provincial legislation and regulations, while only a subset (e.g., airlines, banks and telecommunications companies) are regulated by federal legislation.
- Ontario’s Working for Workers Four Act, 2024, S.O. 2024, c. 3 amended the Employment Standards Act, 2000, S.O. 2000, c. 41 to introduce a mandatory disclosure requirement for employers who use AI to screen, assess or select applicants for publicly advertised job postings. The disclosure requirement comes into force on January 1, 2026. “Artificial intelligence” is defined under the Employment Standards Act as:
“A machine-based system that, for explicit or implicit objectives, infers from the input it receives in order to generate outputs such as predictions, content, recommendations or decisions that can influence physical or virtual environments.”
- Use of AI systems in the workplace, without appropriate safeguards, can lead to various employment-related risks such as claims of bias, discrimination and/or constructive dismissal.
Things to do
- Assess the use of AI in employment processes, paying particular attention to applications that implicate individuals, for example, where AI is used to screen, assess or select applicants for jobs.
- Manage potential risks associated with the use of AI tools in the workplace by developing AI governance and usage policies.
- Ensure human resources, legal and information technology professionals have a voice and clear role in AI governance, procurement, contracting and vendor negotiations to consider mitigation of employment law risks.
- Craft transparent and accurate disclosure statements for publicly advertised job postings in Ontario where AI is used to screen, assess or select applicants. Be prepared to answer inquiries from job candidates and existing employees with respect to how AI is used.
- Ensure employees receive appropriate guidance and training on the responsible use of AI tools in the workplace. For example, employers must advise their employees that certain information cannot be inputted into AI tools (i.e., confidential and/or personal information).
Useful resources
- “Resolution on Artificial Intelligence and Employment [PDF],” co-sponsored by the Office of the Privacy Commissioner, the Commission d’accès à l’information du Québec, the Information and Privacy Commissioner of Ontario, and the Office of IPC BC, October 2023
- “Artificial intelligence in the hiring process,” The Government of Canada
- “Directive on Automated Decision-Making,” The Government of Canada
- “Implications of Artificial Intelligence Technologies for the Canadian Labour Force [PDF],” House of Commons Canada
- “‘Working for workers’ means more work for employers,” Osler, September 5, 2024
- “Working for Workers Four: ‘artificial intelligence’ disclosure requirement,” Osler, December 17, 2024
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