So, you’re looking to hire your next account manager, controller or human resources specialist. Your recruitment agent presents you with a list of candidates and you get your assistant to schedule interviews of those who, in your opinion, are worthy of your attention. If your business is anything like many of the businesses around you, chances are you are under the impression that your legal obligations begin only at the date of hire and the interactions that take place prior to that auspicious occasion are legally meaningless. Wrong.
In view of such concerns, we have decided to list the three main areas of contention employers should be diligently mindful of during the interview and hiring process. These simple pointers, although far from exhaustive, will allow you to modulate at least some of the potential liability that may arise in the future.
In Ontario, employees and potential employees have the right to not be discriminated against on a variety of grounds under the Human Rights Code including gender, creed, disability, etc. This is a truism of employment law both provincially and across Canada. Thus, any conversation surrounding any such topic is likely to attract questionable motives and is best to be avoided altogether.
To be clear, it is not wrong to discuss a person’s background per se. For instance, if a person lists their former experiences in their native country on their resume, one can reasonably assume that they are inviting the prospective employer to have a discussion about their life and any associated advantages their background may bring to the company. However, as a business owner you should be careful making statements that can be regarded as discriminatory even if that is not your intention. Move on to discuss music and your favourite local restaurant…
Although most verbal agreements are, legally speaking, enforceable, once you have decided to enter into an employment relationship with the candidate, put it in writing. As the old adage goes: a verbal agreement is not worth the paper it is written on. In addition to having clarity of terms regarding standard things such as remuneration, work hours, vacation, duties, etc. a written employment agreement may help diminish significant liability down the road if the relationship reaches its breaking point.
Although not a panacea, a properly drafted employment contract may help limit various common law liabilities including significant pay in lieu of notice. A properly drafted employment agreement should also include an entire agreement clause including wording that clearly sets out that the employee was not induced to leave his or her formerly secure employment, if any. Finally, it is always our recommendation to put an appropriately worded probationary period clause.
As always, each employment relationship is highly fact-specific and any contractual terms should be carefully scrutinized and crafted accordingly.
The above article is for general information purposes only and does not constitute legal advice. If you have concerns with regard to the foregoing issues, please make an appointment with one of our lawyers or a qualified legal practitioner elsewhere.