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 wont 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 applicants 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 ThereforeWritten 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 Its not in writing, it doesnt 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 employees skills and ability to do the job Allows the employer to assess employees 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 HOWEVEREmployment Standards Act (ESA)provides that in the first 3 months of employment only no obligation to pay any termination pay. Cant 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

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