Delaying new employee start dates (and employees’ obligations to honour their commitment)
We received the following question from our BlueSky Personnel Solutions community recently – reflecting a new reality for some employers today:
“How far out are candidates willing to delay their start dates, and what are their obligations (if any) to those same employers to follow through and start?”
From our experience, we’ve learned that if you have hiring needs right now, there is no benefit to delaying an employment start date.
With proper safety procedures and physical distancing practices in place, many employers are remotely hiring and successfully onboarding staff right through this crisis.
If you are anticipating that your business will require new hires in the near future, once the economy is fully back up and running, then yes, recruiting now with an eye for a delayed start date is advisable. Most candidates will understand this, given our current climate, as long as the company’s needs around timing are communicated in an open, authentic and transparent manner. In such instances, a few weeks to a couple of months may be accepted by candidates.
However, if a company wants to adopt a “wait-and-see” approach because of business uncertainties, that will very likely scare off high-demand talent due to a perceived lack of job security.
Pre-pandemic, many Bilingual/French jobseekers who were in high demand, were actively going out to several job interviews. And in that jobseeker’s market, they knew the ball was in their court, in terms of getting what they wanted (inclusive of bidding wars). We’d often see candidates interviewing specifically to solicit a counter-offer from their current employer.
Right now, candidates are duly feeling scared to implement such tactics. Some currently-employed candidates are even reluctant to quit their job, because they don’t want to abandon their current employer, in their time of need.
Having said that, lots of jobseekers are still putting themselves out there in the market and are willing to make a change. They also appear to be more serious, versus just testing out their “worth” in the market. Employers who are actively recruiting right now are leveraging that competitive advantage and are scooping up that talent. They recognize that halting recruitment for a couple of months won’t help their business in the long run.
It’s important to remember that even through this pandemic pause, our general attention spans remain short. The excitement of a new job today can wane tomorrow if the start date is delayed by months. And that is when the risk of broken commitments naturally increases.
Legally-speaking, with Natalie MacDonald
To understand “the delayed start” from a legal perspective, we reached out to one of Canada’s preeminent employment lawyers, Natalie MacDonald, founder of MacDonald & Associates LLP, and she graciously provided her expert guidance. Specifically, we asked Natalie:
Could you shed some light on what obligations jobseekers would have to keep their promise to the employer? And if a candidate doesn’t keep his or her promise, is there anything an employer can do, in advance, to avoid such a situation?
Here is her response:
“In normal times, when an employee signs an employment contract with an employer, and commits to commencing employment on a specific date – if the employee breaches that contract without a bona fide reason, if the employer can prove loss due to the failure of the employee to fulfill the terms of the contract, the employer may be entitled to bring an action against the employee for breach of contract. However, this would be fact-specific, and the employer would have to prove their loss.
The more common situation in which this would arise would be the area of inducement, where the employee was induced away from secure employment to be hired at the new organization. In that regard, if the employer had incurred certain costs, like having purchased certain equipment for the employee, which only the employee would be able to use, they may be able to claim those as expenses against the employee. Additionally, if they had promised or committed to something being done for a client or the organization, and it was dependent on the hiring of that particular employee’s expertise, the employer may be able to argue that it is entitled to damages as a result of lost profits, or loss of revenue. Again, this can only be done, if it can be proved that it was directly linked to the hiring of the employee.
More often than not, however, this is very difficult to prove, and most employers will write it off as the cost of doing business. In advance of hiring the employee, unless you have specifically addressed this in the body of the employment contract, there is little that an employer may do to avoid such a situation.
However, now we are living in an unprecedented time and facing a world health crisis, requiring complex and difficult decisions.
As COVID-19 continues to be a significant concern globally, and information changes by the hour, with timelines constantly changing regarding when we may physically return to the workplace, while someone may have signed a contract to commence employment on a certain date, if the employee cannot do so for reasons of exposure, or family status issues or other issues of that nature, the employee should let the employer know as soon as possible, and there is really nothing an employer can or should be doing as a result.
Likewise, if an employer is not able to make payroll, or the employer needs to be cost-cutting through the organization, or there is a potential exposure issue, the employer needs to let the employee know as soon as possible. In that regard, however, an employer may be able to protect itself by having a flexible start date within the contract, or making employment contingent upon the government announcement to return to the workplace.
In my view, in both situations, whether we are living in normal or unprecedented times, as long as both employers and employees are flexible and act in good faith toward the other, neither party should be in a position to be able to claim over the other for any damages, unless the particular facts of the case are grounded in bad faith.”
At BlueSky Personnel Solutions, we recognize that your recruitment and hiring needs remain vital for your business continuity amid this global COVID-19 pandemic.
The Ontario government recognizes staffing services as an essential service, and we are grateful to say that our stellar team has been working remotely for years. All of our work can and is being done virtually.
Please contact us today for all of your Bilingual/French hiring needs. You can reach us at: 416-236-3303, [email protected].