07 February 2016

The hiring minefield these days

I've addressed this issue several times before, but the topic just seems to be covering a wider area over time. Here are some current notes:
  • Do your application and interview processes comply with current human rights laws? It may sound surprising to hear that, but there are still some employers out there that just don't get it.
  • If you use agencies to assist you in the selection process, do they actually check out beforehand the candidates they send out to you? Many do not, hoping that the "halo effect" gained during the interview process will cause employers to not insist on finishing off the process, but they have been successfully sued in the courts for failing to do so.
  • Regardless of that, are you conducting reference checks for positions that would involve contact with the public? One company that ran a tavern failed to do that in hiring some bouncers. A customer who was then viciously attacked by them in the tavern's parking lot successfully sued the employer for failure to properly check out the bouncers' background beforehand (which would have immediately raised some red flags). That principle was subsequently upheld in another case at the Supreme Court of Canada.
  • Are you being straightforward in describing the position and its prospects to the candidate, and does he reciprocate in describing his capabilities and achievements, as well as assuring that he would not be in breach of his employment contract with his current employer? Failure to do so may constitute negligent misrepresentation, as noted by the SCC in Queen v Cognos, or potential exposure to suits from the former employer for poaching in breach of contract or fiduciary duty.
  • Given the emergence of the common law in the area of privacy rights, as well as statutory requirements for several provinces and at the federal level, are you getting prior written consent for contacting referees, and are you explaining beforehand the exact purpose for checking such references?
  • Does the employment agreement meet, at minimum, the requirements of employment standards legislation in your jurisdiction, as well as plainly explaining the terms that exceed such requirements? Among areas that many employers take for granted are the entitlement to, and calculation of, vacation pay and overtime.
  • Are you making sure that the employment agreement presented to the candidate has been reviewed by your lawyers, that there are no terms outside the agreement that have not been properly documented, that the candidate has had the opportunity to get independent legal advice, and that it is fully signed off before he/she begins work? All  steps are extremely important in order to ensure the validity of what was intended.
This is an extremely complex area, and you really need to get good advice from a great employment lawyer on this. I wish you all the best of luck.

No comments:

Post a Comment