As we get into the new year, many business will be looking at hiring staff to replace employees who left, or to expand their business. We provide some legal tips to help attract the best candidates and avoid getting stuck with problematic employees.
1. Plan ahead:
It takes time to advertise, select and secure candidates. Businesses must keep track of changes in their industry and the markets they operate in, if they want to stay ahead of the game and be in a position to recruit the best candidates (especially if there is a shortage in the job market). A business that can pivot and keep up with market changes as they happen, is more likely to capitalise on new opportunities.
Our tips:
- Keep an eye on technological advancements, new products and market trends.
- Think about where your business is heading and the skills you will need in the future to be successful.
- Keep in mind that it can take months to put together a new job description, to recruit candidates, and to go through the selection and hiring process. Employees will need time to make their own arrangements (for instance provide notice, arrange visas, or relocate to a new location).
2. Pre-employment checks:
As a result of hiring pressure, or due to excitement, some employer neglect pre-employment checks. This can result in unintended and undesirable outcomes which can be difficult and time-consuming to resolve.
Our tips:
- Always complete a reference check, ideally with at least one previous employer. It is wise to confirm the identity of the referee or to get another referee to give a second opinion.
- If the role requires a qualification, you should ask for an academic record which can be verified.
- If your team is small or teamwork is important, you may want to consider psychometric testing to get an idea of the candidate’s mental capabilities and behavioural style. An excellent candidate on paper may not always be a good fit for your team.
- It is a good idea to arrange an in person meeting, especially if you will not be doing psychometric testing.
- Security screening is a good idea if the role involves working with large sums of money, highly confidential materials, dangerous materials, or working with vulnerable people.
- Employers must ensure their workers are legally allowed to work in New Zealand. It is wise to enquire after their immigration status, and to obtain evidence for your own records.
- Medical fitness may be important in certain roles (for instance physically demanding work). Having a disability or a past medical issue does not necessarily mean a candidate is not suitable (especially if accommodations are not needed, or can be easily made). It is best to know in advance so that any issues can be resolved before the candidates starts work.
- Ensure the candidate is available to work during times you need them. Ask if they have any holidays or special occasions coming up, so that you can plan ahead.
- If you must, offer employment conditional upon certain checks being completed to your satisfaction. That way, you can secure your ideal candidate quickly, without the risk of later finding out they were not what you had hoped.
3. Written terms and conditions:
Sometimes employers use out of date templates, or fail to record in writing the terms and conditions of work. This can lead to confusion, mismatched expectations and disputes. It is also illegal to employ someone without a written employment agreement.
Our tips:
- Always record the terms and conditions in writing, and include everything that has been agreed (rather than relying on oral discussions).
- Check your employment agreement is up to date with recent changes in the law.
- You must include certain information in any employment agreement (for instance information about resolving disputes).
- Get legal advice if you are not sure about the meaning of any terms in the employment agreement.
- Make sure you correctly record the nature of the work (contractor, casual, permanent, fixed-term). Even if an agreement says one thing, the Courts will look at the true nature of the relationship, and this will trump the agreement. If an employer gets the nature of the relationship wrong, they could be required to pay compensation for getting things wrong (for instance to pay holiday pay again).
- Ensure you give the candidate a copy of the agreement to take away and get advice on. Encourage them to ask questions, so issues are addressed upfront.
- Make sure you receive a signed agreement well before the first day of work (especially if you want to rely on a trial period). Keep a signed copy for your own records in a safe place.
- Don’t forget to collect tax code declarations, payment details, and Kiwisaver information.
4. Desireabe workplace policies:
To set yourself apart from other employers you can consider implementing policies which are of high value to employees (for instance flexible working, additional or special leave, professional development). The right policies will show employees they are valued, and may also help filter out candidates whose values do not align with yours.
Our tips:
- Workers should be informed what is expected from them in terms of conduct, how they can raise an issue, and that concerns will be taken seriously (for instance a zero tolerance policy for harassment, bullying and discrimination).
- Health and safety policies should be regularly consulted on with workers, and training should be provided as required (including for new workers).
- IT, internet and social medial policies can help avoid time wastage, reputational harm to the business, and security breaches.
- Expectations around alcohol consumption (for instance during work socials or client entertainment) should be considered and made clear to all.
- Privacy and confidentiality policies are helpful tools for businesses that deal with personal information or confidential matters. Employees should know what to do if there is a breach (including an accidental breach).
- Policies that set out rules around travel and/or the use of a work vehicle can ensure everyone is kept safe and the business does not incur unnecessary risk and costs.
- Employees should know what they will be reimbursed for and how they can make a claim.
- Flexible work policies are highly valued by employees these days. Consider what your business can accomodate, while still ensuring work gets done. Explain the process for making a request.
5. Good faith:
Underpinning every productive working relationship is mutual duty of good faith. The duty of good faith requires employers and employees to be honest with each other and not to act in a way is, or is likely to, mislead or deceive the other. It also requires parties to be responsive and communicative so that issues can be raised early, and resolved ideally at a lower level.
Our tips:
- When advertising a vacancy, ensure it accurately reflects the role.
- Ensure the job description is up to date and can be realistically fulfilled in the time allowed.
- Do not ask questions that are intended to be used in a discriminatory way (for instance to exclude candidates on the basis of their race, religion, political opinions, sexuality, gender, national origin, age, etc.). Focus on the role, and whether the candidates is capable of fulfilling it.
- Become familiar with your own biases, and actively work against them. Sometimes the best candidate is hiding right under your nose, but your unconscious bias prevents you from recognising it!
At Empower Law we help employers with all their employment law matters, including questions about hiring workers. If you have any questions, feel free to contact us for a no obligation chat to see how we can help. Happy hiring!
