Chapter 3 ▯ CommonLaw Issues
Areas of Common Law Liability
1. Misrepresentation by Job Candidates
a. False statements related to their qualifications
b. If it has a significant hiring impact, employee can be terminated even if
they are doing well.
c. ATTESTATION CLAUSE : states that the information provided is true
and complete to the applicant’s knowledge and that the applicant realizes
that a false statement may disqualify her from employment or be the cause
2. Wrongful Hiring: Negligent Misrepresentation
a. BY AN EMPLOYER
i. Employer fails to ensure the accuracy of statements made during
the hiring process
ii. There must be a duty of care
iii. Representation must be inaccurate and misleading
iv. Party must be negligent in making the misrepresentation
v. The reliance on the info must cause harm
vi. Employees recruited under false pretenses generally claim
vii. Employer should prepare a written contract that states that oral
representations are void on signing a contract.
viii. Where a reasonable person would have detected the inaccuracy or
where the employee was in a position to verify but didn’t, the
plaintiff will not be successful.
ix. Reliance on opinions does not count!!!
b. BY A SEARCH FIRM
i. These representations could bind the employer
ii. Employer should include in INDEMNITY CLAUSE establishing
the search firm’s liability in the event that it makes a
3. Inducement : Aggressive Hiring
a. Don make promises in regards to longterm job security
b. Tort of inducement
4. Restrictive Covenants
a. A promise not to engage in certain types of activities during or after
employment that might affect ability to perform job at hand.
5. Anticipatory Breach of Contract
a. One party rejects the contract through statements or conduct before
b. Typically the employer is sued for wrongful dismissal.
c. You must show that:
i. An offer of employment was made
ii. The offer was accepted
iii. The contract was rejected iv. The employee suffered damages
d. There may be situations where rejection is justifies EG if driving is
essential and employee looses license after offer is accepted.
6. Background Checking: Negligent Hiring
a. REFERENCE CHECKS
i. Can be found liable to a THIRD PARTY if failure to check
references causes harm to that third party
ii. The STANDARD OF CARE imposed on employers is the
commonlaw duty of reasonable carethe level of diligence that is
reasonable under the circumstances. (Must have a high position of
trust and standard of care)
iii. Employers should record the details of all steps taken when
investigating candidates so that they will have written records.
iv. Foreign references should be treated the same as Canadian.
b. EDUCATION AND PROFESSIONAL CREDENTIALS
i. Failure to do so could result I negligence claims where an
employee causes harm to a third party because they do not have
c. CREDIT CHECKS
i. Must notify, in