Does common law apply to hiring practices? How?
What is floor of rights?
Yes.
be honest + clear about nature of job
provide mechanisms for enforcement of rights & obligations - employment related legislation
7 areas of common-law liability
- misrepresentation by candidate “lying”
- wrongful hiring: negligent misrepresentation (responsibilities, promotion opportunities)
- inducement: aggressive recruiting / enticing EE from secure job
- restrictive covenants: limits of EE’s post employment opps / use of info
- anticipatory breach of contract: revocation of job offer
- background checking: prevent claims reg. negligent hiring
- inducing breach of contract: convincing EE to breach contract w/ ER
- misrep by job candidates minor VS major
&
what to add to application form
may be just cause if:
- seriously prejudices the ER: lying about qualifications / experience
- indicates untrustworthiness: still employed but not
Minor if those statements did not convince ER to hire them - length of previous job, salary
add:
a) attestation clause - confirm info true & complete. False statement may disqualify for job/ justify dismissal
b) state specific qualifications necessary for job
- negligent misrep by ER - wrongful hiring (5 requirements)
&
what to do to manage risk (3)
- parties have a special relationship
- said inaccurate statement/shares
- HR Mgt. did not take reasonable care to verify info given
- applicant reasonably relied on info to make decision
- EE suffered harm when info proved to be misrepresented
a) ensure all info accurate & complete (candid, realistic, do not bolster, can’t answer? get info then follow up)
b) prep written contract w/terms set job description & declare all previous oral presentation void
c) ER not liable if reasonable person would have checked
use of executive search firm misrepresentations (3 liabilities)
reduce exposure (3)
- breach of promise/representation
- misrepresentation
- inducements / aggressive recruitment
a) careful selection of firm
b) set boundaries & guidelines
c) search firm can provide indemnity clause –> firm will be liable for misstatements if ER is later sued & found liable
- inducement (allurement/enticement)
&
result (2.5)
aggressive recruiting techniques (more than adv. position) - high degree of pursuit (persuaded to leave current job/made promises that never realized/wage increases promotions, etc.)
a) entitled to longer notice of termination period
b) additional damages may added tort of allurement to compensate EE for lost earnings/moving/home
Tort? -> act causing harm & link between act and harm
- restrictive covenants Thou shall not…
definition, must be 2
examples 3
barring EE from certain actions during/post job
aim: stop exploiting ER trade secrets/confidential info
must be 1) reasonable (not too broad) 2) not contrary to public interest
- confidentiality NDA
not disclose sensitive info - life-long enforceability - non-compete / restraint of trade - no work for comp. for 1 year in gastown
not : no work for comp for 1 year in metro vancouver (prevents econ activity and too broad) - non-solicit clients/coworkers - upon leaving, may not induce other to leave too
restrictive covenants requirements 3
onus, favor & when ceases to bind
- protects legitimate proprietary interest of ER that is worthy of protection (firm specific, not just general expertise & skills)
- reasonable in terms of duration & geographic location (only where competition exists for ER & as long as it takes for ER to recover)
- must NOT be contrary to public interest
burden of proof on ER to prove validity of provisions of clause
in favor of EE -> reflects appreciation for disequilibrium in bargaining power b/n parties
valid restrictive covenant ceases to bind EE if wrongfully dismissed
- anticipatory breach of employment contract
when not
Conditions
ER or EE may be liable if breaks (repudiates- refuses to fulfill) the employment contract before job begins
not breached if frustration occurred: business burned down/owner passed away/employment contingent upon project never realized / COVID lockdown
- offer was made & accepted
- contract repudiated & EE suffered damages
- EE immediately entitled
- EE duty to mitigate damages by looking for another job
- negligent hiring
manage risk 5
potential for others to be harmed? stronger duty to investigate EE’s background
- get written permission of applicant to contact anyone with info
- may be liable to 3rd party if failed to check reference
- reasonable care: look at industry practice check 5 years of employment
- only contact current ER if conditional job offer has been made
- keep paper trail & treat all apps similar
- call educational/professional credential directly to check prof. qualifications or DegreeVerify
- written permission to applicant & get credit check if REQUIRED like EE will be working with money PIPA applies prevent invasion of privacy allegation (must be necessary to assess ability to perform)
requirements of ER’s no reference policy & Explain reasons
required to confirm job title & period of employment
based on prevention of defamation
- false statement made about EE w/ malice
- ER may use qualified privilege QP as defense
QP: previous ER stood in position of trust/authority & felt obliged (not voluntary) to disclose info about person - NO malice
negligent hiring & how to get police record
after getting record
police record required if working with vulnerable people
- need written consent of applicant
- specify type of record (investigations, convictions, pending matters)
- police will not disclose details of offense even if written consent provided must ask applicant in interview
- 3rd party background screening
- send job application to police station in applicant’s residential area
A) conviction MUST RELATE to job if applicant with record is not appointed
B) keep record of reasons of hiring / not hiring
C) keep confidential
D) case may not be pending innocent until proven guilty
discrimination based on criminal record unfair unless bona fide occ requirement
problems with social media background checks
&
solution
- ID/unreliable info / may be discriminatory
- > get 3rd party to conduct search and comply with human right laws
What applies to independent contractors?
What doesn’t?
how is ER liable otherwise?
Human Rights Code & Occupational health safety act
protective employment legislation (employment standards, min. wage)
vicarious liability: delivery person causes accident because of speeding: ER sued for damages (insurance would help)
Advantages for ER to use Independent Contractor 4
Advantages for IC 3
- no statutory remittances (EI/CPP)
- cost effective (no need to provide equipment tools)
- no employment standard protections
- no common-law wrongful dismissal claims
- tax breaks
- more flexibility to work for others
- opportunity to work for other ERs
define worker’s status 3
- control test (who supervises/controls the & where)
- organizational test (are services provided integral or ancillary to businesses, has worker been integrated in business (office, parking spot, extra perks)
- ownership test (who owns tools)
steps to minimize risk of IC being EE
- written contract iding IC status
- no statutory deductions
- indemnity clause: IC responsible for CPP
- allow IC to work for others
- avoid setting specific work hours
- IC should work offsite as much as possible
- allow right to accept/refuse work
- minimize integration into org (no office, allow use of kitchen, office parties)
liability of temporary EE agencies
- look at contract b/n ER and agency: who is responsible for discipline & pay?
- my organization responsible to provide ALL workers safe work, including harassment / bullying
5 types of EEs
no formal legal distinction b/n EE based on hours of work
- perm full-time
- full week
- entitled to benefits
- protection via law/statute
- no term contract = indef job - perm part-time
- less than full week
entitled to benefits
-protection via law/statute
- no term contract = indef job - Temp. fixed/term / direct hires
- contract position & task position
- entitled to protection but no notice of termination/pay in lieu if employed less than 3 months - casual AKA on contract
- work intermittently if work is offered
- may decline work (elect-to-pay)
- NOT entitled to notice - Agency temp
- work for agency
- agency responsible for benefits
