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Hiring smartly and avoiding costly mistakes

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  • 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 “smart” 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 “close the deal” • 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:  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
  • 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. 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
  • 6. 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
  • 7. 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
  • 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 employment“ – 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: – 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
  • 10. • 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
  • 11. • 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
  • 12. • 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
  • 13. • 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
  • 14. 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
  • 15. • 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
  • 16. • 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
  • 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  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 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
  • 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 “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
  • 20. 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
  • 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 • 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
  • 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 “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
  • 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