Hiring smartly and avoiding costly mistakes

HIRING SMARTLY AND AVOIDING COSTLY MISTAKES

Agenda1. Working with recruiters and headhunters?

2. The job interview

3. Pre-hiring screening

4. Making a “smart” job offer

5. Probationary periods

Lior Samfiru, Partner

• Recruiters, at law, considered agents of the company;

• Company may be bound by information provided by recruiter to candidate, and promises made;

• Recruiter likely eager to “close the deal”• Little control over what recruiter says and

does

Headhunters/Recruiters

• Problem arises with inducement: employer may be deemed to have inherited past service of employee.

• Example: Employee approached by recruiter Employee securely employed and not looking to

leave Recruiter makes grandiose promises to convince

employee to leave secure employment

Headhunters/Recruiters

• In previous situation, if employee joins company and is let go shortly thereafter, the employer may be liable for enhanced severance.

• Many wrongful dismissal lawsuits deal with issue of inducement.

Headhunters/Recruiters

Kilpatrick v. Peterborough Civic Hospital- Employee securely employed for 30 years and approached

by recruiter;- Recruiter very persistent and won’t take “no” for an

answer;- Recruiter convinces employee to apply for a job with

Peterborough Civic Hospital;- Employee dismissed 6 years later;- Awarded 30 (!) months’ severance because of inducement

Headhunters/Recruiters

Tips for working with recruiters:– Always provide instructions to recruiter in writing;– Make sure you have an employment agreement

with employee that contains termination clause, probationary terms and eliminates oral representations;

– Find out from candidate how he/she ended up in front of you;

– Ask recruiter to tell you what was done to find candidate;

Headhunters/Recruiters

Job Interview• By the interviewing stage, employer already obtained much of the

applicant’s relevant information from application and resume. • Interview designed to determine if the applicant has the

appropriate qualifications and will be compatible with other employees in the company.

• While it is important for employers to be able to ask a number of questions during the interviewing stage, employers should be aware of the many issues that could arise and result in violations of their statutory and common law obligations.

• Employer my be liable for violation of the Human Rights Code during hiring process.

Job Interview and Screening

Human Rights:• The Human Rights Code prohibits discrimination

based on several grounds, including: race, sex, place of origin, age, sexual orientation, marital status.

• Everyone has the right to "equal treatment with respect to employment“

– This includes, but is not limited to, the employment application and recruitment process

Job Interview and Screening

• Potential sources of human rights violations in the employment context:– Job postings, advertisements– Interviews

• Job postings, advertisements– Should not contain questions that directly or

indirectly ask about one of the prohibited grounds

Job Interview and Screening

• Job postings, advertisements (contd.)

– Appropriate

• Reasonable, genuine and directly related to job performance

• That a receptionist speak clear, intelligible English

– Inappropriate

• Unreasonable criteria not related to job performance that create barriers and unfairly discourage people from applying

– That a receptionist speak with "unaccented English“

Job Interview and Screening

• Interview process

– The scope of questions gets expanded at this stage to determine the applicant's qualifications and ability to perform the essential duties of the job

– Employer must ensure that information sought is relevant to job requirements

– Exception to ""inappropriate" questions: Bona Fide Occupational Requirement (BFOR).

• Onus is on the employer to prove BFOR

Job Interview and Screening

• Inappropriate Questions (subject to BFOR)

– "How old are you"?

– "Are you planning on having any more children"?

– "Are you Muslim"?

– "Are you going to be comfortable working with attractive men?“

Job Interview and Screening

• Appropriate Questions

– "Do you think your age will make it difficult to relate to our clients"?

– "Considering family commitments, will you be able to work long hours?"

– "Are you going to be able to work with certain co-workers"?

– "Will you be comfortable with a female supervisor"?

– "Can you read and write in English"?

Job Interview and Screening

Job Interview and Screening

• Other Requests for Information

– Medical testing

• Pre-employment medical examinations as part of the screening process, violate the Code

• Only once a conditional offer of employment has been made can medical assessments be used to verify or determine an individual's ability to perform the essential duties of the job

• Other Requests for Information (contd.)

– Drug and alcohol testing

• Can be considered part of an employer's goal to have a safe workplace

• Drug and alcohol dependency is considered a form of disability under the Code

• Testing is discriminatory

• Testing that has no demonstrable relationship to the job safety and performance has been found to be a violation of employee rights

Job Interview and Screening

• Consider this: A job offer can be written or oralOnce a job offer is accepted, becomes a contract

of employmentA written contract almost always benefits the

employer

Therefore…Written job offer FAR better than oral offer

The Job Offer

Why do you want to make sure offer enforceable:• Termination clause• Ability to change terms of employment to match

business needs• Non-competition/Non solicitation obligations• Intellectual property obligations

All of the terms above usually do not exist unless explicitly outlined in an enforceable contractor offer

The Job Offer

How does offer become unenforceable:• If It’s not in writing, it doesn’t exist• Multiple offers• No consideration (“we already had a deal!”)• Ambiguity• Employee not given time to consider• Violates the Employment Standards Act• Employee signs after starts working

The Job Offer

Tips to follow EVERY TIME:• Offer always in writing• If offer revised, make sure it is clear which one is the final one• If advising employee of hiring, make sure to indicate that

“formal offer will follow”• Offer must include a line assuring that ESA will always govern• Give the employee no less than 3 business days to consider• Employee does not step foot in the workplace unless signed

offer delivered first• Make sure that offer contains all necessary terms and will

continue to be in force if position changes

The Job Offer

What is a Probationary Period:• Period of time which allows employer to evaluate

employee’s skills and ability to do the job• Allows the employer to assess employee’s

compatibility with the social makeup of the workplace

• Provides a timeframe during which an employer can terminate employment, with little liability

• Cost savings (no benefits…)

Probationary Periods

How Long Can Probationary Period Last:• Can have an employee on probation as long as is

appropriate as long as employer acting in good faith

• HOWEVER…Employment Standards Act (”ESA”)provides that in the first 3 months of employment only – no obligation to pay any termination pay.

• Can’t violate ESA

Probationary Periods

How Long Can Probationary Period Last:• If probationary period allows employer to

terminate with no notice or pay for longer than 3 months, not enforceable

• If probationary period extended beyond 90 days, employee would receive termination pay, if terminated

Probationary Periods

Tips:• Not sufficient to stipulate that “first 90 days

probationary”.• Good Probationary clause:

“The first 90 days of your employment will be considered a probationary period, during which time your employment can be terminated without notice or pay in lieu thereof”

Probationary Periods

Tips:• The employer does have a duty to act in good faith

in assessing performance• Probationary period is not implied. Must be part

of a contract or job offer• Consider whether you need a probationary period.

Will a termination clause suffice?• SHOULD have probationary term if employee

hired away from another job.

Probationary Periods