The employment relationship is fundamentally, first and foremost, a contract. It is a personal service contract between an individual and an employer.
Typically, the employer is an organization, including but not limited to a business corporation. The employer may also be a partnership, a joint venture, a government department, a non-profit organization, a non-incorporated trade union, and even an individual operating as a sole proprietorship.
The employee, on the other hand, is always an individual. If the individual wants to be engaged for their services, either an incorporated entity or as an independent contractor, then they have not entered an employment contract but a different type of contract.
Employment contracts typically start with the recruitment of talent by the organization that wants to enter an employment contract relationship. Every potential employer starts the employment contract search and engagement process by the recruitment of talent to the employer by a variety of means.
Evolution of the recruitment process
The recruitment process has evolved from the slow-moving process of placing an advertisement in a local or national newspaper to the posting of positions on various internet websites with either push or pull recruitment orientation.
However, despite the tremendous advancement in recruitment and human resources technology over the last 50 years, the essential legal issues, duties, and responsibilities of the parties in the recruitment stage of the employment cycle remain remarkably the similar if not the same.
The key stages of the recruitment process usually involve the following steps:
- Attraction of talent to the organization through branding, market reputation, job postings, campus recruitment, and through related active recruitment of talent.
- Job posting may be made to a narrow, targeted audience or broad, general audience of potential employee candidates.
- Targeted recruitment by a direct approach or communication of a specific, desired candidate is often facilitated through recruiting agencies or headhunters.
- Recruitment involves candidate pre-screening, availability, and entitlement to work verification is necessary for best results and legal compliance.
- Job interviews with a small group of preferred job applicants is normally conducted by a team, rather than one individual, of the recruiting employer for best results.
- References and background fact checking for selected candidates, especially in sensitive and fiduciary duty positions is critical for best results.
- Job offers of employment, related negotiations, and acceptance of the final written terms and conditions of the contract of employment concludes the hiring process.
The recruitment and hiring employees, to be successful, must be aware of these issues to effectively manage the recruiting process while mitigating legal risks. The proper and careful recruitment of candidates is a key organization risk and opportunity management responsibility.
Urgency to hire creates ‘unnecessary’ issues
Urgency to fill vacancies has led, in this author’s experience, to unnecessary personnel, human resources, and employment law issues. Disputes, disagreements, conflicts and litigation may follow a hasty hiring.
Therefore, professional procedures and appropriate due diligence in the recruitment process is essential to the present, ongoing, and future fulfillment of organization goals, individual employee career satisfaction, and overall success of the employment relationship in the employment cycle.
Management may want to consider developing a ‘hiring checklist’ and an ‘onboarding procedure’ to ensure effective and lawful recruitment over time. Caution is required since employment and labour laws change from jurisdiction to jurisdiction in Canada and change over time.
This may require updating any internal checklist for each jurisdiction in which the employer may hire and employ employees in Canada. Seeking current and ongoing legal advice from a qualified and experienced employment and labour lawyer is also recommended.
This will ensure that human resources professionals are equipped for the important and challenging task of employee recruitment as a critical first step in the employment cycle.
