Thursday, June 27, 2013

Inducement in the Age of Social Networking

With the advent of social networking, traditional means of recruiting and hiring have vastly changed.  Today, websites such as LinkedIn provide employers and employees an opportunity to publish their professional profiles online (a curriculum vitae or a company profile) and connect with like-minded individuals and organizations through professional networking. Although an invaluable networking tool, the voluntary publication of one’s online résumé does raise some interesting questions in employment law with respect to inducement.

Canadian courts have routinely emphasized that the determination of reasonable notice entitlements is an art rather than a science. One factor that plays an important role in assessing the quantum of reasonable notice entitlements is the assessment of whether an employee was induced by the subsequent employer to leave a secure and stable  position of prior employment.

What is Inducement?

If an employee leaves or is lured away from secure employment or self-employment with the promise of career advancement, additional responsibility, more security, or greater compensation, Canadian courts have increased the period of reasonable notice such employee is entitled to receive (Wallace v. United Grain Growers Ltd.,  para 83 (SCC)).  In essence, inducement deals with the reliance and expectation an employee develops as a result of the potential employer’s pre-employment conduct.

The finding of inducement is not a black and white issue. In fact, the Supreme Court of Canada has made it clear that the significance of inducement varies with the circumstances of each particular case (Wallace at para 85).  For example, conduct that falls short of inducement but leaves an employee with the impression that the employer has offered a position with a secure and long-term future is a relevant consideration in determining notice period entitlements.

Traditionally, an allegation of inducement could be made if an employer contacted an employee directly (Alishahh v. J.D. Collins Fire Protection Co.) or if an employee was approached on a “cold call” by an employment agency (Jackson v. Makeup Lab Inc. 1989, 27 C.C.E.L. 317).

However, Canadian jurisprudence does suggest that if an employee is actively looking for employment, a court may be less likely to find inducement as a factor affecting the length of reasonable notice (Quinlan v. Bridgeport Self-Serve  Carpet Clinic Ltd.).

Inducement over LinkedIn

Many employers and recruiters use LinkedIn when searching for potential candidates by messaging an online “connection” to provide information about a job opportunity. This may well be the modern technological successor to old-fashioned cold calling or "headhunting."

What differentiates LinkedIn from conventional recruitment tools is that users voluntarily upload their own information. Whether the purpose of a profile is to network with industry professionals, reconnect with old colleagues or to look for alternate employment, one’s résumé is largely in the public domain once it is on LinkedIn. This begs the question as to whether the mere posting of such information could be deemed by a court to be akin to an active search for employment, with any recruitment that followed being unlikely to be classified by a court as an inducement. 

What factors would a court look at in assessing this question? Could outcomes be affected by the nature and frequency of a user's social media use? Or whether an online resume has been freshly posted or was of long history at the time of recruiter contact? What digital evidence might become critical in such a determination? Would a site like LinkedIn be seen as different from a or Workopolis?

To date, no Canadian jurisprudence exists on the topic of inducement and LinkedIn. However, considering the exponential growth of online social networking, it won’t be too long before such a claim makes its way to a Canadian courtroom.

- Nitin Pardal, Toronto

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