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Hiring smartly and avoiding costly mistakes
1. HIRING SMARTLY
AND AVOIDING COSTLY MISTAKES
Agenda
1. Working with recruiters and headhunters?
2. The job interview
3. Pre-hiring screening
4. Making a âsmartâ job offer
5. Probationary periods
Lior Samfiru, Partner
2. ⢠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 âclose the dealâ
⢠Little control over what recruiter says and
does
Headhunters/Recruiters
3. ⢠Problem arises with inducement: employer
may be deemed to have inherited past service
of employee.
⢠Example:
ď Employee approached by recruiter
ď Employee securely employed and not looking to
leave
ď Recruiter makes grandiose promises to convince
employee to leave secure employment
Headhunters/Recruiters
4. ⢠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
5. ďąKilpatrick v. Peterborough Civic Hospital
- Employee securely employed for 30 years and
approached by recruiter;
- Recruiter very persistent and wonât take ânoâ for an
answer;
- Recruiter convinces employee to apply for a job with
Peterborough Civic Hospital;
- Employee dismissed 6 years later;
- Awarded 30 (!) monthsâ severance because of
inducement
Headhunters/Recruiters
6. Tips for working with recruiters:
â Always provide instructions to recruiter in writing;
â Make sure you have an employment agreement
with employee that contains termination clause,
probationary terms and eliminates oral
representations;
â Find out from candidate how he/she ended up in
front of you;
â Ask recruiter to tell you what was done to find
candidate;
Headhunters/Recruiters
7. Job Interview
⢠By the interviewing stage, employer already obtained much of the
applicantâs 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
8. 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 employmentâ
â This includes, but is not limited to, the
employment application and recruitment process
Job Interview and Screening
9. ⢠Potential sources of human rights violations in the
employment context:
â Job postings, advertisements
â Interviews
⢠Job postings, advertisements
â Should not contain questions that directly or
indirectly ask about one of the prohibited grounds
Job Interview and Screening
10. ⢠Job postings, advertisements (contd.)
â Appropriate
⢠Reasonable, genuine and directly related to job
performance
⢠That a receptionist speak clear, intelligible English
â Inappropriate
⢠Unreasonable criteria not related to job performance
that create barriers and unfairly discourage people
from applying
â That a receptionist speak with "unaccented Englishâ
Job Interview and Screening
11. ⢠Interview process
â 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
â Employer must ensure that information sought is
relevant to job requirements
â Exception to ""inappropriate" questions: Bona Fide
Occupational Requirement (BFOR).
⢠Onus is on the employer to prove BFOR
Job Interview and Screening
12. ⢠Inappropriate Questions (subject to BFOR)
â "How old are you"?
â "Are you planning on having any more children"?
â "Are you Muslim"?
â "Are you going to be comfortable working with
attractive men?â
Job Interview and Screening
13. ⢠Appropriate Questions
â "Do you think your age will make it difficult to relate to our
clients"?
â "Considering family commitments, will you be able to work
long hours?"
â "Are you going to be able to work with certain co-
workers"?
â "Will you be comfortable with a female supervisor"?
â "Can you read and write in English"?
Job Interview and Screening
14. Job Interview and Screening
⢠Other Requests for Information
â 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
15. ⢠Other Requests for Information (contd.)
â 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
16. ⢠Consider this:
ďź A job offer can be written or oral
ďźOnce a job offer is accepted, becomes a contract
of employment
ďźA written contract almost always benefits the
employer
ďThereforeâŚWritten job offer FAR better than oral
offer
The Job Offer
17. 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
ďź All of the terms above usually do not exist unless
explicitly outlined in an enforceable contractor offer
The Job Offer
18. How does offer become unenforceable:
⢠If Itâs not in writing, it doesnât exist
⢠Multiple offers
⢠No consideration (âwe already had a deal!â)
⢠Ambiguity
⢠Employee not given time to consider
⢠Violates the Employment Standards Act
⢠Employee signs after starts working
The Job Offer
19. 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
âformal offer will followâ
⢠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
20. What is a Probationary Period:
⢠Period of time which allows employer to evaluate
employeeâs skills and ability to do the job
⢠Allows the employer to assess employeeâs
compatibility with the social makeup of the
workplace
⢠Provides a timeframe during which an employer
can terminate employment, with little liability
⢠Cost savings (no benefitsâŚ)
Probationary Periods
21. 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
⢠HOWEVERâŚEmployment Standards Act
(âESAâ)provides that in the first 3 months of
employment only â no obligation to pay any
termination pay.
⢠Canât violate ESA
Probationary Periods
22. 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
23. Tips:
⢠Not sufficient to stipulate that âfirst 90 days
probationaryâ.
⢠Good Probationary clause:
âThe 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 thereofâ
Probationary Periods
24. 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