Hiring a new worker can be exciting. Presumably, by the time you make the job offer, something about the candidate has impressed you and suggested this person is the one for the job. Similarly, most hires are eager for the opportunity to work with you – that’s why they applied for and accepted the job!
The purpose of this article is to help ensure your organization navigates through the recruitment process smoothly and, in so doing, avoids any legal pitfalls that may jeopardize a successful hire. To that end, when your organization next goes out to hire, keep the following tips top of mind:
Ensure the job is real and sustainable
Occasionally your organization may want to jump on the chance to onboard a star recruit or quickly fill out staff to address a developing business opportunity. If so, take a moment first to consider what will be communicated to any such prospective hire. Above all, be sure they are left with a clear understanding about the realities and risks of the position if there is any uncertainty as to the nature of proposed job duties, available funding or other such issues.
The basis for such caution is to offset any future claims for negligent misrepresentation, a type of legal wrong that may befall an organization when a worker joins only to find they have been sold a lemon of a new job. If that occurs, expect a lawsuit to be headed your way.
Choose your means of job advertisement carefully
Facebook was recently in the news concerning its practice of allowing users to post job ads targeting specific types of people, such those of a certain gender or age. Critics have pointed out that this type of online microtargeting may be a violation of provincial and federal human rights protections against discrimination in hiring. This is just one example of why employers need to think carefully about what types of tools are employed in the hiring process, even if offered by large or well-known service providers.
Keep a close eye on the work of third-party recruiters
If your organization engages a third-party recruiter, take care to ensure their conduct is not something you later come to regret. False representations by a recruiter at the time of hire are another way to land your organization with a claim for negligent misrepresentation. Similarly, if years later it comes out during what should be a regular dismissal that your recruiter (ostensibly on your behest) induced the employee to leave stable employment to join your operations, this fact alone could result in much higher severance costs than might otherwise have been anticipated.
Be mindful of the limits of appropriate questioning in a job interview
Most people have been asked an odd question or two in the course of a job interview. While employers have broad discretion concerning how to conduct interviews, the law does impose some restrictions. For instance, if a job applicant can reasonably infer from your questioning that you are trying to screen them based on a protected ground (e.g. race, religion, etc.) consider yourself in trouble.
In 2012, one such employer found itself before the Human Rights Tribunal of Ontario after asking a job applicant about her financial situation, her family and martial status, and how she came to Canada. These questions were not rationally connected to the job at issue. The cost? An order of $4,500.00 to be paid to the job applicant and corresponding reputational harm to the employer (in the form of a public decision critical of its hiring practices).
Ensure there are no limitations on the ability to work
Employers often (and understandably) form the impression that if someone applies for a job, they are free to work that job. And some employees are painfully wrong in this regard.
The use of restrictive covenants has become common in Ontario and can limit a worker’s future job options. If your organization happens to unknowingly hire a worker bound by such a restriction, a cease and desist letter (and lawsuit thereafter seeking an injunction and/or damages) may be your reward. To that end, it is incumbent on employers in the hiring process to confirm (in writing) with prospective employees whether they are subject to any restrictive covenants that may impact their ability to work on your behalf.
Have a written employment contract signed before the start of work
There is no formal legal requirement in Ontario for employers to have written employment contracts. That said, if you care about things like having a probationary period, wanting flexibility with unpaid lay-offs and controlling dismissal costs, a written contract becomes an absolute necessity. At the end of the day, a good written employment contract is all about ensuring an alignment of understanding between employer and employee and offsetting the potential for future disagreements about respective rights and obligations.
If you do plan to have your next hire sign a written employment contract remember this one big tip: have the employee review, sign and return the contract before they start work. If you fail to take this step, you run the risk that the written contract may later be deemed unenforceable.
The above list is just a brief overview of some of the issues employers may face in the recruitment process. It is by no means exhaustive. Each hiring experience will come with its own unique circumstances, but assuming you apply enough forethought and careful planning, your next hire can start off on the right track.
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