Your recruiting efforts have paid off. After weeks (or months) of placing ads, reading resumes, and holding interviews, you’ve finally found someone who seems like a fantastic fit for your organization. You’re ready to make an offer. What do you need to know before you do?
In anticipation of our upcoming Employer Forum on hiring and recruitment, we thought it timely to share some of our own tips for employers on this topic. Read on for our top four…
1. Negotiate the terms of your new hire’s employment with her openly and collaboratively.
When you discuss the proposed terms of employment with your employee-to-be, solicit her feedback, and listen to what she has to say. This collaborative approach will help set the tone for a workplace culture where employees feel heard and valued – feelings which tend to engender loyalty and engagement – and reduce the risk of employment-related problems down the road.
2. Enter into a written employment agreement with your employee using plain language that both of you can understand.
To engage your employee at the outset, you want to make sure you’re on the same page and speaking the same language – literally. If you don’t, you’re not just sending the wrong message to your new employee, you may also be setting yourself up for future problems if your relationship doesn’t work out.
3. If your new hire is leaving a position with a competitor, do what you can to ensure that he has made a clean (legal) break before joining your organization.
For example, ask whether he signed a non-compete agreement with his former company. If he did, and you are a competitor of his previous employer, he may be vulnerable to a lawsuit for breach of contract. Even worse, you as the new employer could be made a party to such a lawsuit.
4. Address “difficult” topics like dismissal, severance, and just cause, fairly, directly, and clearly in the new employee’s contract.
Wrongful dismissal claims are the bread and butter of employment lawyers’ courtroom practice. Why? In part, because contractual clauses that limit an employee’s right to severance are often poorly drafted (making them invalid) or completely non-existent.
The quickest way to put employment lawyers out of work is to include a well-written severance-limiting clause in every employee’s employment contract.
The benefit of having such a clause is certainty: both employer and employee know how much severance is owed on dismissal. It also gives the employment relationship closure, and enables both parties to move forward.
Without this certainty, employers are more likely to face a letter from a lawyer demanding severance and a potential lawsuit.
It can also help to be explicit in your contracts about the types of employee behaviour that could lead to termination “for cause”, i.e. a dismissal in which an employer is not legally required to give the employee reasonable notice or severance pay. Including examples of such conduct is one way an employer can be transparent about its workplace culture and expectations – and, hopefully, hire employees whose values are aligned with its own.
Ultimately, if it came to that, the final decision about whether there was “cause” to fire someone would rest with the courts – but it doesn’t hurt to provide guidance at the outset so that, again, everyone is on the same page.
The above post is adapted from our Sustainable Employment® Guidelines for Contracting with Your Employees, which can be found online in our Kent Employment Law Resource Library here.
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