Employers are facing an increasingly competitive marketplace for employees. From corporations to fuel stations, nearly every kind of business in Canada has been feeling the workforce shortage. Now, organizations are making hiring decisions expeditiously. Yet, bold and efficient moves can sometimes leave new hires vulnerable and companies exposed to legal vulnerabilities, so it is best to have the tools in place to mitigate risk, according to commercial litigation lawyer Stephen Gleave of Ancaster.
“It’s essential to establish a solid foundation early on, rather than going back and trying to reinforce shabby construction,” said Gleave. “This is as true in human resources/new hires as it is in home construction.”
From the offer letter to effective on-boarding to the continuing challenges of remote work, employers have their work cut out for them, but according to Gleave, a little foresight can go a long way in preventing headaches.
The Society for Human Resource Management (SHRM) created a handy guide to help companies as they lay the foundation for new hires, and it is information worth sharing.
Make the offer letter count
Lawyer Rose Keith with Harper Gray in Vancouver, British Columbia, Canada, told SHRM that the most important initial step at the start of an employment relationship is the offer letter.
“When you make the offer in writing, usually one of the most important things is, you want to contemplate how that relationship is going to end,” Keith said.
Maybe it seems a little fatalistic, but working relationships change and end—it is a fact of life. That initial offer letter is the chance to limit a company’s liability or explicitly state what its liability might be if the company should terminate employment.
“Societal differences do come into play here,” said Stephen Gleave. “The United States, with its at-will employment, doesn’t have severance packages or obligations that are as generous as those found in Canada. So, Canadian companies need to be particularly vigilant.”
In other words, it is best to establish at the start what the severance will be, in order to avoid later tensions.
“If the contract is silent, or there is no contract, and we revert to what we call common law in Canada, then the severance and settlements can be very generous, especially by American standards,” said Michael Howcroft, a lawyer with Blake, Cassels & Graydon LLP in Vancouver told SHRM.
As Keith explained, termination provisions can be negated by a poorly worded offer letter, which determines that common law dictates how much notice employees must be provided before termination — a potential for litigation.
Also, as Gleave noted, the offer letter is the best place to broach non-compete and non-solicit clauses.
But, as Howcroft cautions, make them too broad or unreasonable, and they are unenforceable.
Onboarding shouldn’t be overlooked
As Keith from Vancouver iterates, another major milestone to kick off a good employment relationship is with productive onboarding.
“The time at the front end to really onboard someone and really expose them to what your workplace is about,” is time well spent, Keith explained.
Personalized, focused onboarding is critical to success, Christie Esau, who works as a counselor and psychotherapist in Ottawa told SHRM.
Her onboarding process has included training with the person she is replacing.
“So, there’s not a constant rotation of meetings to attend or new people to try to connect with; it’s with one person,” she said. “I feel like I’m able to establish a rapport with her, to have lots of opportunities to ask questions.”
There is also a manual outlining her job that she can consult when she has questions, which was compiled by her predecessor.
Remote challenges
Effective onboarding in a virtual environment will continue to be challenging for companies.
Misty Pratt, a health research coordinator in Ottawa, began her position remotely. During the transition, however, her manager and co-workers prioritized being accessible and made what was initially a “strange” virtual experience effective.
Canada’s Employment Standards Legislation varies slightly from province to province, but Keith told SHRM that there will be future case law to help establish which version of this legislation remote workers’ contracts should follow, whether it be where the employee is residing, or if it’s the province where the employer is located.
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