Hiring smartly and avoiding costly mistakes

HIRING SMARTLY
AND AVOIDING COSTLY MISTAKES
Agenda
1. 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

• 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.

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

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;

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

• 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 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“

• 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

• 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?“

• 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"?

• 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

• Consider this:
 A job offer can be written or oral
Once a job offer is accepted, becomes a contract
of employment
A 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

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

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”

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.

Hiring smartly and avoiding costly mistakes

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