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10 questions to ask yourself when hiring |
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Written by Malcolm MacKillop and Laurie Jessome
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Employment contracts limit employer risk
 The beginning of an employment relationship is often a time of great optimism. It’s very easy to focus on the positives (a new beginning, a fresh perspective, company growth) and to lose sight of an important aspect of hiring: risk management. To help you avoid pitfalls in the hiring process, ask yourself the following questions:
1. How much do I need to know about the applicant before I make an offer?
Review your company’s job application forms and postings to ensure that they do not violate your province’s human rights legislation. Do not request information on a protected ground (e.g., age, disability) until after a conditional offer of employment has been extended and, even then, only when you have a bona fide occupational requirement (BFOR). If you have any doubt about what constitutes a BFOR, speak to your lawyer.
 If the position for which you are hiring requires a successful applicant to have achieved a certain level of education or training, consider calling the school to ensure that he or she has actually achieved the necessary degree. Falsifying or exaggerating on resumes is an all-too-common practice, especially in a competitive job market.
2. How long do I need to properly assess this candidate’s skills?
Most provincial employment standards legislation, including the Ontario Employment Standards Act, 2000, provides for a probationary period during which an employer can terminate an employee without providing any notice of termination or pay in lieu thereof. Review your province’s legislation and consider implementing a probationary period in new employment relationships. You must specifically tell the candidate that he or she will be subject to a probationary period. Set out the criteria by which he or she will be assessed. If you need longer than is provided in the applicable legislation, let the candidate know that he or she will be assessed for suitability during that longer period, but you will be obligated to pay at least the statutory minimum if you intend to terminate the relationship.
3. What promises have I made?
In an attempt to convince an attractive candidate to accept employment, company representatives can occasionally exaggerate the perks and opportunities associated with the position in question. This is a very risky tactic and has resulted in disappointed employees bringing successful claims against their former employers. To avoid this unfortunate development, anyone who meets with applicants should be briefed on proper interview techniques. Ensure that the position is accurately described in any postings or offer letters and that you have been clear about the compensation associated with the job. Your recruiters must be told not to make any representations regarding length of employment or the possibility of promotion.
4. What kind of changes can I expect?
This question is related to the issue of pre-employment representations. Before extending an offer of employment, consider where the company is going to be in one, three, or even five years. If you foresee significant changes on the horizon — particularly those that might impact reporting lines or staffing needs — consider warning the candidate that such changes are pending. Any offer of employment should specifically reserve the right to make certain changes to an employee’s position. This clause may not be sufficient to forestall a claim of constructive dismissal but it could go a long way toward managing your new employee’s expectations regarding his or her position.
5. What do I consider to be unforgivable?
Every employer has a (perhaps unspoken) list of behaviours or actions that will result in a just-cause termination. When hiring new employees, state specifically that you have the right to terminate the relationship without notice for cause. Provide examples of actions that will constitute just cause, especially if you have concerns that are more specific than the traditional common law definition of “just cause” (e.g., dishonesty). Be sure to reserve some discretion to discipline rather than terminate. You should also indicate that the list is not exhaustive: never underestimate the ability of your employees to surprise you.
6. How much am I willing to pay to end the relationship?
The best time to define an employee’s rights upon termination is at the beginning of the employment relationship. If you intend to pay out only the statutory minimum upon termination of employment, you must make that clear at the beginning of the relationship. Unless you specifically adopt the provisions of the provincial employment standards legislation, you will be deemed to have agreed to provide your employee with common law reasonable notice of termination, which can run between two and four weeks per year of service for non-executive employees. High ranking executives often receive much more, even with very short service.
7. Do I have any secrets that must be kept?
If your new employee will be exposed to any trade secrets, inventions, or confidential information, get a written guarantee that he or she will not disclose such information during or after employment. Although all employees have an implied obligation to refrain from disclosing confidential information belonging to their employer, disputes often arise about which information can actually be considered confidential. To avoid any confusion, we recommend that you describe the confidential information that you wish to protect and explicitly state that the employee is forbidden from disclosing it to anyone without written permission to do so.
8. Do I have any client relationships that need to be protected?
If you are hiring someone who will be responsible for managing client relationships on your behalf or recruiting new clients for your company, consider protecting those relationships by entering into a non-solicitation agreement with your new employee. Such an agreement would restrict the employee from pursuing your company’s clients following the termination of his or her employment. There are certain requirements that must be met for a non-solicitation agreement to be enforceable, speak to an employment lawyer before entering into such an agreement.
9. Have I communicated my performance expectations?
When recruiting new employees it is tempting to emphasize the attractive aspects of a position and downplay the obligations. It’s also important to ensure that you have given the candidate a true picture of your expectations for the position. If long hours and extensive travel are required, say so. If it is important to you that the successful candidate be comfortable networking and demonstrate enthusiasm for meeting new clients, communicate that as well. If the employee feels that the new position is more than he or she bargained for, frustration will quickly set in on both sides.
10. Have I put this all in writing?
Providing new hires with a written contract of employment, along with copies of any relevant human resources policies, is the best way to protect your interests and prevent costly misunderstandings. Both the contract and the policies should be provided to the new employee before his or her first day of work. If the employee is simply given an employment agreement when he or she reports for work, a court may later find that the employee did not have an opportunity to read and understand the agreement or that the terms of employment had already been settled. If you intend to provide the employee with a letter of hire prior to having the employment contract signed, make sure that the letter specifically references the contract and states that the employee must sign it before starting work. This is particularly true if the employment agreement contains non-solicitation or confidentiality clauses.
Malcolm MacKillop is a partner with the firm Hodgson Shields DesBrisay O’Donnell MacKillop Squire LLP of Toronto. He can be reached at
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. Laurie Jessome is a lawyer with the firm Hodgson Shields DesBrisay O’Donnell MacKillop Squire LLP of Toronto. She can be reached at
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